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  • Shah
  • A.C.J
  • Crump, J.
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Smart Summary

Concise Analytical Summary of the Opinion (Appeal No. 20 of 1922, reference from the Resident at Aden)

Factual and Procedural Background

On 6 September 1920 Ali Mahomed Farag threw sulphuric (vitriol) acid in the face of the plaintiff, causing serious injuries that ultimately included the loss of one eye. The plaintiff alleged that the defendant had instigated Ali Mahomed Farag to commit the assault. Criminal proceedings followed soon after the assault; the trial court convicted both Ali Mahomed Farag and the defendant, but the defendant was acquitted on appeal on 20 November 1920. The plaintiff filed a civil suit for damages on 13 February 1922. The trial court found in favour of the plaintiff on all factual issues and entered a decree. The defendant appealed. The appeal raised three points (limitation, whether the defendant instigated the assault, and the basis for assessing damages) and was referred by the Resident at Aden to the higher court under Section 8 of the Aden Civil and Criminal Justice Act (Act II of 1864).

Legal Issues Presented

  1. Is the suit barred by limitation?
  2. Is it established on the evidence that the defendant instigated Ali Mahomed Farag to throw acid on the plaintiff, resulting in the injuries (including destruction of one eye)?
  3. Is there a sufficient basis and evidence for assessing damages (i.e., should further evidence be required to enable a correct assessment of the amount)?

Arguments of the Parties

Plaintiff's Arguments

  • The plaintiff contended that Article 36 of the First Schedule of the Indian Limitation Act (compensation for malfeasance or misfeasance) should apply, which would allow two years from the time of the malfeasance to bring the suit.
  • The plaintiff argued the assault amounted to a "continuing wrong" and time should run from the date when the full consequences of the acid injury were known (specifically, up to July 1921 when an operation and removal of the eyeball occurred), invoking Section 23 of the Limitation Act.
  • The plaintiff alternatively relied on Section 24 of the Limitation Act, arguing that the period should be computed from the time when some specific injury actually resulted.
  • The plaintiff also argued that he was in such a state of health (mental incapacity) as to amount to disability/insanity within the meaning of Section 6 of the Limitation Act and therefore entitled to an extension to institute the suit.

Defendant's / Respondent's Arguments

  • The defendant raised the point that the suit is time-barred under the Limitation Act (specifically Article 22 of the First Schedule) and thus should be dismissed.
  • The defendant's counsel noted that evidence as to the defendant's character, relied upon by the trial judge, was not relevant to the question whether the defendant instigated the assault.
  • It was implicitly maintained that the cause of action arose at the moment of the assault and that none of the plaintiff's alternative limitation arguments (continuing wrong, Section 24, disability under Section 6) would bring the suit within time; these contentions were advanced in support of the limitation plea raised on appeal.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The opinion contains considered, step-by-step analysis addressing factual and legal questions. Two judges (Shah, A.C.J., and Crump, J.) delivered reasoning that is consistent on the dispositive issue of limitation and concurred in the factual finding on instigation.

Findings on the Factual Issue (instigation)

  • The trial court had found in favour of the plaintiff on the factual issue that the defendant instigated Ali Mahomed Farag to throw acid. Shah, A.C.J. reviewed the evidence and concluded that, despite the defendant's earlier acquittal in the criminal appeal, the civil record contained sufficient evidence to support the trial court's finding.
  • Shah, A.C.J. noted that while character evidence referenced by the trial judge was not strictly relevant, there nevertheless remained evidence independent of character that supported the finding. The defendant's failure to give evidence on oath was also treated as lending weight to the trial court's conclusion. Crump, J. agreed with the view of the trial court and the Court of Appeal on the facts and declined to differ from that conclusion.

Legal Analysis on Limitation (central dispositive issue)

  • Statutory framework: The judges treated the Indian Limitation Act (as extending to Aden) and the relevant First Schedule articles as controlling. Article 22 of the First Schedule (suits for compensation for injury to the person) prescribes that a suit for compensation must be brought within one year from the date when the injury is committed. Article 36 (general rule for malfeasance/misfeasance) applies in general but not where a specific special provision exists for the type of injury in question.
  • Applicability of Article 36: Shah, A.C.J. rejected the plaintiff's submission that Article 36 should apply; he held that Article 36 applies only where the claim is for malfeasance/misfeasance not specially provided for, whereas injury to the person is specifically provided for under Article 22. Crump, J. similarly explained that Article 36 is the general rule but Article 22 is the special rule for injury to the person, and time runs from when the injury is committed.
  • When did the cause of action accrue?: Both judges concluded that the cause of action accrued at the moment of the assault (6 September 1920). On the plaint itself the injury and destruction of the eye were said to have occurred on that date; thus Article 22's one-year period began to run then.
  • Continuing wrong under Section 23: The plaintiff's argument that the wrong was "continuing" because the harmful effects continued until later (e.g., July 1921) was rejected. Both judges held that the act (throwing the acid) was a completed malfeasance and not a continuing wrong for limitation purposes; subsequent consequences do not convert it into a continuing wrong under Section 23.
  • Section 24 (time runs from when specific injury results): The court considered and rejected the argument that Section 24 applied. Section 24 only helps where the act does not give rise to a cause of action until some specific injury occurs. Here, the act itself (throwing acid) gave rise to a cause of action at once and was independently actionable and punishable under the Penal Code. Therefore Section 24 could not be invoked to defer the commencement of limitation.
  • Section 6 (disability/insanity): The plaintiff argued that his mental condition post-assault amounted to incapacity/insanity under Section 6, which might delay the running of limitation. Shah, A.C.J. indicated that he would have allowed an opportunity to prove such a factual contention if it had realistic prospects, but concluded on the existing record that the medical evidence and the fact that the plaintiff was examined as a witness in the criminal proceedings fell far short of proving insanity within the meaning of Section 6. Crump, J. likewise found the medical certificate inadequate to establish insanity and noted the plaintiff's ability to give evidence in the criminal trial as inconsistent with a claim of legal insanity.
  • Procedural observations: Shah, A.C.J. observed that the limitation point was not taken in the trial court and therefore certain factual inquiries focused on limitation were not conducted below. Despite this, the court concluded that even taking the plaintiff's allegations at their highest, none of the limitation exceptions relied on (Sections 23, 24 or 6) would bring the case within time, so it would not be useful to postpone decision for further evidence.
  • Costs: The court noted that under Section 13 of the Aden Civil and Criminal Justice Act the costs of the reference are to be treated as costs in the suit and that the Resident, when disposing of the appeal in conformity with the decision, would deal with costs; the court added that the Resident could, if he thought fit, direct each party to bear their own costs throughout.

Holding and Implications

Holding: The court's adjudication was that the suit is time-barred under Article 22 of the First Schedule of the Indian Limitation Act and therefore the action cannot be maintained. The court concluded that the proper outcome is dismissal of the suit.

DISPOSED OF: The suit is dismissed as barred by limitation.

Immediate consequences and practical implications:

  • The decree in favour of the plaintiff at trial cannot stand because the suit was filed beyond the one-year period provided by Article 22; accordingly, the appeal must result in dismissal of the suit.
  • Costs arising from the reference are to be treated as costs in the suit under Section 13 of the Aden Civil and Criminal Justice Act. The Resident, when disposing of the appeal in conformity with this decision, will determine costs and may direct each party to bear their own costs if he considers it appropriate.
  • No broader legal rule or new precedent was articulated beyond the application and exposition of the existing Limitation Act provisions to the facts of this case; the decision applies established statutory principles (Articles 22 and 36, and Sections 23, 24 and 6 of the Limitation Act) to these facts and does not purport to establish novel law.

This summary is confined strictly to the material and conclusions contained within the provided opinion and does not infer facts or holdings beyond those expressly stated by the court.

Show full summary ...

    Abdulla Mahomed Jabli v. Abdulla Mahomed Zulaikhi

    Shah, A.C.J:— This is a reference by the Resident at Aden in Appeal No. 20 of 1922 on the file of that Court. The reference arises out of a suit, filed by the plaintiff for damages resulting from injury caused to him by the defendant through the instrumentality of one Ali Mahomed Farag. The plaintiff's case was that on the 6th September 1920 Ali Mahomed Farag threw sulphuric acid in his face and thereby caused injury to him which ultimately resulted in the loss of one of his eyes. The defendant was said to here instigated Ali Mahomed Farag to cause this injury to the plaintiff and the plaintiff claimed damages from the defendant on that account. The suit was filed on the 13th February 1922. Soon after the injury was caused, there were criminal proceedings against Ali Mahomed Farag and the present defendant. The trial Court in the criminal case convicted both Ali Farag and the present defendant. But the defendant was ultimately acquitted in appeal on the 20th November 1920. The trial Court decided all the issues of fact in favour of the plaintiff, and passed a decree on that basis. The defendant appealed and the points raised in appeal were these:—

    1. Is the suit barred by limitation?

    2. Is the fact established that the defendant instigated Ali Mahomed Farag to throw acid on plaintiff and that in consequence of this instigation Ali Mahomed Farag did throw the acid thereby destroying one eye and damaging the other, besides causing other serious injuries to the plaintiff?

    3. Should not there be some basis for assessing damages and should not some evidence be produced, to enable the Judge to arrive at a correct decision of the amount?

    2. Under Section 8 of the Aden Civil and Criminal Justice Act (Ac II of 1864) the case has been referred to this Court for our decision. I shall first deal with the second point, which relates to a question of fact, namely, whether the defendant instigated Ali Mahomed Farag to cause the injuries to the plaintiff. The trial Court has found on the evidence in favour of the plaintiff. That evidence has been discussed before us, and in spite of the fact that the defendant was acquitted in criminal proceedings, I am of opinion that the evidence on the present record is sufficient to justify the conclusion which the trial Court arrived at, and I am unable to say that the conclusion reached by that Court on that evidence is wrong. It is true that in dealing with this point the Judge has referred to the evidence relating to the character of the defendant. It is rightly pointed out by the learned Counsel for the defendant that is not relevant. But apart from the evidence of his character there is evidence which, as I have said, supports the finding arrived at by the trial Court. There is also the circumstance that the defendant himself has not gone into the witness-box to deny the allegations against him on oath. This lends further support to the conclusion reached by the trial Court. I am of opinion, therefore, that the finding on point No. 2 raised in appeal should be in favour of the plaintiff.

    3. The 1st point relates to a question of law. The question is whether the suit is time-barred. The article which applies to a suit of this nature is Article 22 of Schedule I of the Indian Limitation Act, and according to that Article a suit for compensation must be brought within one year from the date when the injury is committed.

    4. On behalf of the plaintiff it has been suggested that Article 36 should apply as it is a suit for compensation for malfeasance or misfeasance and if that Article applies, undoubtedly the plaintiff would have a good answer to the objection on the score of limitation, as he would have two years under that Article within which to file his suit from the time when the misfeasance was caused. But I am of opinion that Article 36 cannot apply because in terms it applies where the claim is one for compensation for malfeasance or misfeasance independent of contract and not specially provided for. But as injury to the person is specially provided for under Article 22, I am unable to accept the contention urged on behalf of the plaintiff that Article 36 can apply. If Article 22 applies, it is clear that the plaintiff's claim is beyond time, because it is brought more than one year after the date of the injury to him.

    5. By way of answer to this point, it has been urged on behalf of the plaintiff that this was a continuing wrong, and that the wrong continued up to the time the results of sulphuric acid having been thrown on the plaintiff's face were fully known, that is up to July 1921 when the operation is said to have been performed and the eyeball removed. It is said that though the act of throwing the acid was committed on the 6th of September the acid continued to take effect, and that was a continuing wrong within the meaning of Section 23 of the Limitation Act. I am unable to accept this contention. I think in the present case the injury was committed on the 6th September when sulphuric acid was thrown at the plaintiff and the continuance of its effect up to a later date, in my opinion, does not make the wrong a continuing wrong within the meaning of Section 23 of the Limitation Act.

    6. Further it is urged that under S. 24 of the Act the period of limitation should be computed from the time when some specific injury actually resulted from this act. It is urged in support of this contention that as the injury actually resulted from the throwing of sulphuric acid in July 1941, the period of limitation should be computed from that date. No doubt if the first condition necessary to attract the application of S. 24 is satisfied, that argument might be good. But the Section relates to an act which does not give rise to a cause of action unless some specific injury actually results therefrom. In the present case, it is not possible to treat the act of instigating a person to throw sulphuric acid in the face of another person, or rather the act of throwing sulphuric acid in the face of a person as an act which does not give rise to a cause of action. Such an act would be clearly punishable under the Indian Penal Code; and would be sufficient by itself, to give rise to a cause of action for a claim for compensation as the act itself constitutes an injury. Therefore S. 24, in my opinion, cannot apply to this cases.

    7. Several cases have been referred to in the course of the argument, but I do not think that in view of this initial difficulty in applying Section 24 of the Limitation Act, it would serve any useful purpose to examine the cases cited at the Bar in connection with this point.

    8. In the last resort, the learned Counsel for the plaintiff has argued that the plaintiff was in such a state of health after this injury was caused to him that until the eyeball was removed in July 1921, he would be really in the position of an insane person within the meaning of Section 6 of the Limitation Act. If there was any substance in this point, I should have allowed the plaintiff an opportunity of proving this question of fact, and of enabling him to establish that under S. 6 he was subject to a disability and was not in a position to institute the suit in time. But I do not think it could serve any useful purpose to allow the plaintiff a further opportunity to adduce evidence on a point of this nature. It is clear that he was examined as a witness in the criminal pro seeding, and while I am prepared to concede that he was in a great state of mental weakness on account of the serious injuries which resulted from this inhuman assault on him, it would be straining the language beyond a reasonable limit to think that he could establish that he was insane within the meaning of Section 6 of the Indian Limitation Act.

    9. I have considered these contentions urged on behalf of the plaintiff with care. It is true that the point of limitation was not raised in the trial Court, and therefore, the facts which would otherwise have been investigated with reference to that point were not investigated from that point of view. All the contentions urged before us which have been raised by way of answer to the point of limitation are dependent upon allegations of fact which would, if necessary, require further investigation; and the plaintiff's contention before us has been that he should be allowed an opportunity of proving those allegations of fact. But taking the allegations upon which those contentions are based at their highest, I am unable to think that the case could be brought either within Section 24, or within the scope of Section 6 of the Limitation Act, and therefore I do not think that it would serve any useful purpose to postpone the decision on the question of limitation. I do not see really any answer to the point of limitation which was raised on behalf of the defendant for the first time in the Court of the Resident at Aden in appeal. It is an unfortunate result from the plaintiff's point of view, and it is undoubtedly hard that this case should fail on this ground. But the provisions of Article 22 of the Limitation Act appear to be too clear to admit of any doubt as to the effect of that Article on this particular claim. On this issue my opinion is that the suit is barred by limitation. I do not consider it necessary to deal with point No. 3 in the view I have taken of point No. 1 as to limitation in the case. But it may be added that both parties agreed that the course suggested by the Resident at Aden would be the proper course to follow in case any inquiry as to the amount of damages were necessary.

    10. In my opinion the suit should be dismissed. Under Section 13 of the Aden Civil and Criminal Justice Act, costs of the reference will be costs in the suit, which will have to be dealt with by the Resident, when he disposes of the appeal in conformity with our decision. But we may mention that it will be perfectly open to him under the circumstances to direct each party to bear his own costs through out, if he thinks it proper to do so.

    Crump, J.:— This was a suit for compensation for malfeasance. The plaint was filed on the 13th February 1922, and it set out that on the 6th September 1920 sulphurio acid was thrown in the plaintiff's face at the instigation of the defendant, and that the plaintiff thereby suffered the injuries set out in the medical certificate appended to the plaint. Among those injuries was the complete destruction of the plaintiff's left eye. The first Court passed a decree in favour of the plaintiff, and from that decree there was an appeal to the Court of the Resident who has referred for our decision 3 points. Of these I propose to deal with the two first points only. They are as follows:—

    1. Is the suit barred by limitation?

    2. Is the fact established that the defendant instigated Ali Mahomed Farag to throw acid on plaintiff and that in consequence of this instigation Ali Mahomed Farag did throw the acid thereby destroying one eye and damaging the other, besides causing other serious injuries to the plaintiff?

    11. The second of these points deals with the facts of the case, and after hearing the arguments of Counsel on either side, and examining the record, I find it necessary only to say this much that I am not prepared to differ from the view taken by the trial Court and by the Court of appeal as to the question of fact.

    12. The first point, however, is, though plain enough, little more difficult and requires to be treated at greater length. As I have said, this is a suit for compensation for malfeasance, and as such would fall under Article 36 of the First Schedule of the Limitation Act, were it not otherwise specially provided for. It may be noted that under Article 36 time runs from the time when the malfeasance took place, and Article 22 which is only a special case from the general case dealt with under Article 36, in cases of compensation for injury to the person, time runs from the date when the injury is committed. In both cases the malfeasance gives rise to a cause of action, and time runs from the moment when the malfeasance takes place. The Indian Limitation Act extends to the whole of British India of which Aden forms part, and Section 16 of the Aden Civil and Criminal Justice Act (Act 11 of 1864) makes any act or acts in relation to Civil procedure in force for the time being applicable to the Courts at Aden.

    13. Now as I have said, this is a suit for compensation for injury to the person, and under Article 22 of the First Schedule of the Limitation Act, time begins to run in the words of the article “when the injury is committed” and a suit for compensation must be brought within one year from that time. In this case on the plaint itself it is apparent that in all Substance the injury was committed on the 6th September 1920 for plaintiff's eye was destroyed on that date and the suit, therefore, is not brought within the time prescribed by the article. I see no justification for reading Article 22 in any other sense than that which I have indicated. Here on the plaint itself there plainly was a cause of action at the very date of the assault, that is to say September the 6th 1920, and therefore the plaintiff was bound to bring his suit within one year from that date. This he has failed to do, and that unless he can escape in any way from the operation of that article, his suit must be dismissed as time-barred.

    14. Now three arguments have been placed before us. First, it is urged that this is a case of a continuing wrong, and is, therefore, covered by Section 23 of the Indian Limitation Act. I do not think that this argument can possibly prevail. It is not always easy to say what a continuing wrong is. But plainly that which is done in the present case is not a continuing wrong. The act of malfeasance was complete at the time when the vitriol was thrown in the plaintiff's fade, and the subsequent consequences are no part of the cause of action in such a case. Then it was said that Section 24 of the Indian Limitation Act applies. But the answer to that clearly is that it is only where it is necessary to consider the act plus the consequences as the cause of action that the time runs from the consequences where those consequences are injurious. In this case there was a cause of action at the very time of the assault, and therefore, S. 24 could have no application. The illustration to S. 24 indicates with sufficient clearness the kind of acts the legislature had in mind in enacting that section.

    15. Lastly, it was urged that the plaintiff was suffering from a disability. But there is really nothing on the record on which such a plea can effectively be based. In his reply to the memorandum of appeal, paragraph 3, it is not suggested that the plaintiff was insane, but that he had suffered serious injuries which perhaps to some degree affected his mental capacity, as stated in the medical certificate given to him at that date. The medical certificate falls far short of establishing anything that could possibly be regarded as insanity for the purposes of Section 6 of the Limitation Act. Upon this point it runs as follows:—“Apparently this severe injury has also affected his mental state very considerably and the two combined have made him unfit for work since the injury”. There is nothing more than this in the case, and there is nothing to show that at any time the plaintiff was what can properly be called insane. On the contrary, it is admitted that he was examined as a witness in a criminal case against the defendant. It, therefore, seems to me this argument also fails, and it is not possible to suggest any ground on which the plaintiff can escape the bar of limitation. In view of what I have said as to the facts, I regret the conclusion, but it seems to me inevitable. I agree, therefore with the judgment of my learned brother.

    16. Suit dismissed.

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    Comments

    Abdulla Mahomed Jabli v. Abdulla Mahomed Zulaikhi
    (Sep 24, 1923)