Benedicto v. Lambert Civ. App. 19-M-70; 4/6/71; El-Kindy Ag. J.

Benedicto v. Lambert Civ. App. 19-M-70; 4/6/71; El-Kindy Ag. J.

Special and general damages were awarded against the appellant for negligently knocking down with his car the respondent who war riding his bicycle. The accident occurred on 3/2 67 and the suit was filed by the respondent on the 6/4/68. the suit was therefore time barred (vide article 22 of Indian Limitation Act 1908 whereby claims for compensation for personal injury is one year from the time the injury is committed) but the trial magistrate admitted and heard the case purporting to act under inherent powers of the court giving the reason that the respondent did not deliberately sleep on his rights but was compelled by the injuries he sustained as a result of the accident not to file in time. it was submitted for the appellant that: (a) the trial magistrate erred when he acted under inherent powers of court in allowing extension of time as inherent powers could not be applied in the circumstances; (b) the reasons he gave were not sufficient in law to support an extension of time, assuming that in law he could do so; (c) S. 5 of the Indian Limitation Act 1908 dealt with only review and appeal but did not provide for extension of time in a trial.

            Held: (1) “The suit was clearly time-barred because the time for filing such a suit is one year from the date of accident as per s. 22 Indian Limitation Act 1908.” (2) “With due respect to the then learned Senior Resident Magistrate, he could not act under inherent powers as it has been held that where period has been provided for by statute cannot be extended by means of inherent power …. (see OSMAN v. THE UNITED INDIA FIRE AND GENERAL INSURANCE COMPANY LTD. [1968] E. A. 103) by the Court of Appeal ….. In that case the respondents were allowed by the High court to substitute a name, but their application was 4 months and 1 week late. Although the learned judge (Saidi J. as he then was) was aware that a statutory provision did not allow this, nevertheless he allowed it because he considered I tin the interest of justice to allow it. The unanimous opinion of the Court of Appeal was that he could not do so.” (3) “It was …………….correctly submitted that section 5 of the Indian Limitation Act, 1908 was not applicable as this case then was no tan appeal or a review of judgment or on application for leave to appeal.” (4) “This Indian Act was repealed and replaced by our law of Limitation act, 1971 Act No. 10/1971 which came into force on the 1^st of March, 1971, but this act did not act retrospectively in such matters (see section 48(2) (a). The new Act seems to provide for alleviation of hardship in such cases as the one in hand, by provision of section 44.” (5) Appeal allowed.