Avaran Kutti (Minor) By Next Friend, Kalathingal Ithalukki v. Cheriyakkan And Others.

These appeals raise a question of limitation. One Avaran Kutti by next friend Ithalukki filed three suits, O.S Nos. 638, 639 and 640 of 1945 on the file of the Court of the District Munsif of Parappanangudi against the defendants-mortgagees for recovery of amounts towards damages for having cut the trees in the mortgage property in their possession and for removing the same. The suits were filed more than two years after the alleged cutting of the trees. The learned District Munsif and on appeal, the learned District Judge held that the suits were barred by limitation under Art. 56 of the Limitation Act. The plaintiff preferred the aforesaid three appeals.

Learned Counsel for the appellant contended that the learned Judge was wrong in holding that the suits are governed by Art. 36 of the Limitation Act. He would say that the appropriate Article is Art. 116 of the Act. Before proceeding to consider the facts of the instant case it may be convenient at this stage to consider the scope of Arts. 36 and 116 of the Limitation Act. They read:

Art. 36: For compensation for any malfeasance, misfeasance or non feasance indepedent of contract and not herein specially provided for. Two years When the malfeasance misfeasance or non-feasance takes place. Art. 116; For compensation for the branch of a contract in writing registered. Six years When the period of limitation would be gin to run against a suit brought on a similar contract not registered.

Art. 36 applies to actions ex delicto whereas Art, 116 applies to actions ex contractu. If an action is founded on tort of one or other of the three kinds mentioned in Art. 36, the suit for damages in respect thereof should be filed within two years when the wrong was committed. The words “malfeasance, misfeasance or non-feasance” are well known species of torts. In Rustomji's Law of Limitation at p. 657 they are described as follows:

“These torts are often considered as of three kinds, viz., non-feasance, or the omission of some act which a man is by law bound to do, misfeasance being the improper performance of some lawful act, or maifeasance being the commission, of some act which is in itself unlawful.”

These three tortious acts to come within the provisions of Art. 36 should be independent of a contract. The question therefore is, what is the meaning of the words “independent of contract” in Art. 36. The meaning of the words has been felicitiously brought out by Greer, L.J in Jervis v. Moy Davis Smith Vendervell & Co.(1). There the plaintiff sued the defendants, a firm of stock brokers, claiming damages for breach of his instructions as to the purchase of certain shares whereby he sustained a loss. For the purpose of ascertaining the scale of fees it was necessary to decide whether the action was founded on contract or on tort. The Court of appeal held that the action was founded on contract. At p. 405 Greer, L.J said:

“The distinction in the modern view, for this purpose, between contract and tort may be put thus. Where the breach of duty alleged arises out of a liability independently of the personal obligation undertaken by contract it is tort and it may be tort even though there may happen to be a contract between the parties, if the duty in fact arises independently of that contract. Breach of contract occurs where that which is complained of is a breach of duty arising out of the obligations undertaken by the contract.”

The question therefore is whether the present suits are based on breach of duty arising independent of the contract, or whether they are suits for recovery of damages for breach of a term of the contract. In the former case Art. 36 would apply; in the latter case Art. 116 would govern the case.

The three plaints practically contain similar allegations. The allegations in the plaint in O.S No. 640 of 1945 may be taken as a sample. In paragraph 4 it is stated:

“Without the knowledge and consent of the plaintiff and also contrary to the terms of the kaichit, defendants 1 and 2 have cut and removed one mango tree of the value of about Rs. 10, 28 cashewnut trees of the value of Rs. 3 each, 19 puduvanni trees of the value of Rs. 2 each and some other kuzhikkoors from and out of the kuzhikoors standing on the schedule paramba under the kaichit described in paragraph 3(2) above and belonging to the plaintiff…………”

Paragraph 6 reads:

“As it has been expressly stipulated in the kaichit and also under the assignment deed set out in paragraph 3 above, that if the kuzhikkoors belonging to the jenmi are damaged, the tenant is liable for such amount of damages, defendants 1 and 2 are bound to pay the amount of damages in respect of the kuzhikkoors, and the plaintiff is entitled to get the same and he should also get the same. Hence this suit.”

Paragraph 8 says:

“The cutting of the kuzhikkoors set our above by defendants 1 and 2 without the knowledge and consent of the plaintiffs is an offence under the criminal law and is also punishable. This suit is not therefore maintainable in the Court of Small Causes and it is filed in this Court.”

The kaichit in the above suit, Ex. D.6 contains similar allegations as the kaichits in the other suits. The material portion of Ex. D. 6 reads:

“In the event of the kuzhikkoors belonging to the kammal are destroyed or caused to be ruined on account of want of proper care on our part, the losses incurred in connection therewith, and the arrears of pat tam and interest thereon, etc., are always liable to our mortgage right herein.”

Under the aforesaid condition in the kaichit the defendants are under an obligation to take proper care of the trees, It was obviously not intended to cover a case of vandalism on the part of the mortgagees. The duty not to cut away the trees arises independently of the contract. It is not an obligation undertaken under the contract. Therefore, Art. 36 directly applies to the present suits filed by the appellant for the recovery of damages from the defendants on the ground that they had cut and removed the trees put in their possession. The Courts below are therefore right in holding that the action is not ex contractu but ex delicto and, therefore, having been filed more than two years after the cause of action accrued, would be barred by limitation. The appeals fail and are dismissed with costs in S.A No. 503 of 1949. No leave.

V.C.S