1. Heard Mr. N. Majumder, learned counsel for the appellant- Tripura State Electricity Corporation Limited (for short, TSECL). None appears for the respondents.

2. This is an appeal filed under Section 96 of the CPC against the judgment dated 01.10.2019 and decree dated 30.10.2019 passed by the learned Civil Judge, Senior Division, Kailasahar, Unakoti, Tripura, in connection with case no. Money Suit 04 of 2018.

3. The facts of the case, as elicited, are reproduced here-in-below:

(a) On 03.06.2016 while son of the plaintiff, namely, Jahir Ali, aged about 20 years, mason by profession and earning Rs. 400/- per day, at about 12.00 noon went to the pond of the plaintiff for taking bath, and when reached near the side of pond unfortunately fell down on earth due to electric shock and died on the spot. Thereafter, he was shifted to RGM hospital and there was no fault of the deceased and a written complaint was lodged to the Irani police station vide U.D. case no. 02 of 2016 under Section 174 Cr.P.C. It is pleaded that the deceased was an unmarried and used to maintain his parents, brothers and sisters. It is further pleaded that the accident took place due to sheer negligence of Tripura State Electrical Corporation Limited (for short, "TSECL") and for that TSECL is liable to pay compensation. Demand notice was issued under Section 80 CPC. Thereafter, the plaintiffs had filed the instant suit being the parents of the deceased.

(b) Having summoned, the defendants i.e. the appellants-herein, had contested the suit by filing written statement. After exchange of pleadings, the following issues were framed:

(i) Whether the suit is maintainable

(ii) Whether the suit is bad for non-joinder of necessary party

(iii) Whether on 03.06.2016 son of plaintiffs namely Jahir Ali, aged about 20 years, mason by profession earning Rs. 400/- per day died by electrocution due to electrical fault

(iv) Whether the plaintiffs are entitled to compensation And if so what should be the quantum of compensation

(c) Thereafter, evidences were recorded. The father of the deceased, namely, Hanif Ali alongwith 3 (three) other witnesses had adduced their evidences. All the witnesses had confirmed the aforesaid fact of electrocution. All the witnesses had categorically stated in their evidences that it was out of sheer negligence on the part of TSECL, the son of the deceased had died when he was going to take bath in the pond of the plaintiff.

(d) At the very outset, Mr. Majumder, learned counsel has raised the question of maintainability of the suit itself. Accordingly, Mr. Majumder, learned counsel has submitted that the accident occurred on 03.06.2016, as alleged by the plaintiffs, but, in the notes prepared by the Sheristedar of the learned court, it is specifically written that "the plaint is in form but, not properly stamped", and after signature of the court officer, the date is mentioned as "11.10.2018". The seal of the office also shows that the plaint was filed on 11.10.2018 and I find the signature of the filing Advocate put the date of filing as on "11.10.2018". Mr. Majumder, learned counsel has also drawn my attention to Article 82 of the Limitation Act.

(e) On the other hand, the TSECL, had adduced evidences and stated that there was no actionable wrong on the part of TSECL for the alleged accident. Since the alleged accident had taken place near the pond of the plaintiffs, as such, they were the owners of the said pond and the said pond was in the jote land of the plaintiff, and if any accident occurred near the pond of the plaintiffs, then, it might have occurred due to electric shock from the domestic line of the plaintiff, because, there was no electric pole of TSECL over the homestead or pond of the plaintiffs. Furthermore, Mr. Majumder, learned counsel appearing for the appellant-TSECL had laid much emphasis that the plaintiffs did not mention that the deceased was electrocuted with the live wire of the TSECL and as per police report, the deceased was electrocuted by his own fault and negligence and there was no fault on the part of the TSECL.

4. I have considered the submission of learned counsel appearing on behalf of the appellant as to whether the suit is barred by law of limitation. The suit was filed under Section 1-A of the Fatal Accident Act, 1855, and the limitation period for filing such suit is two years from the date of the death of the person.

5. The witnesses appeared for the plaintiffs have stated that the said incident had occurred on 03.06.2016 and the deceased died on the spot, which means that the suit under Section 1-A of the Fatal Act, 1855 ought to have filed on or before 03.06.2018, but, it is evident that the suit was filed on 11.10.2018 i.e. after expiry of a period of two years. Part VII of the schedule to the Limitation Act, 1963 provides for period of limitation and deals with the suit relating to Tort. Article 82 is under Part VII and the same reads as under:

6. Having gone through the said provision as embodied in Article 82 of the Limitation Act, according to me, when a suit for compensation is filed under the Fatal Accident Act, 1855, the said suit has to be filed within a period of two years, as stated above. In the instant case, the action for damages was brought under Section 1-A of the Fatal Accident Act, 1855. The provision reads thus:

"[1A.] Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong.- Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued, shall be liable to an action or suit for damages, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony or other crime.

Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased;

and in every such action, the court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, or any of them, in such shares as the court by its judgment or decree shall direct."

7. I have gone through the judgment of the learned trial court. It is found that the learned trial court has not dealt with the question of limitation. Prima facie, I find merit in the submission of Mr. Majumder, learned counsel appearing for the appellant-TSECL.

8. Limitation is a mixed question of law and facts, but, when it affects the very root of the case, then, it becomes a substantial question of law, and the question is to be decided on its own merit. As such, without entering into the merits of the submission of learned counsel for the appellant regarding the issues framed by the learned trial court, I deem it imperative to remit the case to the court of learned trial Judge to decide the question of limitation. As such, this court has framed the following issue:

"Whether the suit is barred by law of limitation! "

9. The learned trial court is directed to decide this issue afresh after giving opportunity to the plaintiff-respondents to remove the defects, if any, in filing the suit in accordance with law. It is further directed that while deciding the point of limitation, the learned trial Court shall not disturb the findings of the judgment on other issues.

10. Accordingly, the judgment dated 01.10.2019 and decree dated 30.10.2019 passed by the learned Civil Judge, Senior Division, Kailasahar, Unakoti, Tripura, in connection with case no. Money Suit 04 of 2018, are remitted to the said court only to decide the point of limitation afresh. It is directed that the learned trial court shall decide and dispose of the case on the aforesaid issue of limitation within a period of 60 (sixty) days from the date of receipt of the records of this case.

11. Registry is directed to send the records to the court of learned Civil Judge, Senior Division, Kailasahar, Unakoti, Tripura, immediately.

12. The instant appeal, thus, stands disposed, in the above terms. Pending application(s), if any, also stands disposed.