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P L D 1958 (W. P.) Karachi 130

 

Before Munshi, J

 

FEDERATION OF PAKISTAN (Owner of North Western Railway)‑Applicant

 

Versus

 

MESSRS. ABDUL REHMAN ABDUL GHANI‑

Opponents

 

R. A. No. 27 of 1954, decided on 20th December 1957.

 

JUDGMENT

 

MUNSHI, J.–‑ This is a civil revision application under section 32 of the Karachi Small Causes Court Act, 1929, from the order passed by the Registrar of the Small Causes Court, Karachi, decreeing the suit of the opponents with costs.

 

Two hundred bags of gram were made over to the North Western Railway Administration at Kallurkot for carriage from there to Karachi to be delivered at Karachi to the opponents. The R. R. (Railway Receipt) under which the consignment was carried was dated the 22nd July 1950. On this receipt the railway staff put an endorsement “said to contain 200 bags”. All the bags were put in one waggon and the waggon reached Karachi with seals intact. When it was opened, it was found to contain 199 bags and not 200. The opponents took delivery of the consignment on 1st August 1950, and then, on the 18th December 1951, he filed a suit against the applicant for the recovery of the price of the bag said to have been short delivered.

 

In the written statement, filed by the applicants it was contended that they had delivered all the bags that had been made over to them for carriage, and that there was no shortage. It was further contended that the suit was time barred. The Registrar over‑ruled the contentions of the applicant and decreed the suit. It is against this decree that the present revision application has been filed.

 

It was contended on behalf of the applicants

 

(1) That the suit was time‑barred.

 

(2) That the Registrar was wrong in holding that the opponent had in fact made over 200 bags to the applicant at Kallurkot Station.

 

(3) That the Registrar was wrong in not placing the burden of proof on the opponent that 200 bags had in fact been consigned.

 

(4) That the observation of the Registrar that the fact that the seals of the wagon carrying the consignment were found intact, did not exonerate the applicants because the seals could be removed and replaced by railway servants at any time, is not justified as it has not been supported by any evidence on record.

 

I have heard the learned counsel on either side and I have arrived at the conclusion that the order of the Registrar is unsustainable and must be set aside on the short ground that the suit was time‑barred.

 

In ca‑a of non‑delivery or short‑delivery, Article 31 of the Limitation Act applies. According to this Article, time runs from the date `the goods ought to be delivered.’ In this particular case the major portion of the consignment had actually arrived on or before 1st August 1950, when the delivery was actually taken, and it was found on that day A that one bag had not arrived, and hence it became a case of short delivery. In this case the goods were loaded in one waggon and not in several waggons so that there could be a possibility of difference in time of arrival. It therefore does not require any effort to determine when the goods ought to have been delivered. It would have been a different matter if no portion of the consignment had been delivered, for in that case it would be necessary to take evidence in order to determine when the goods ought to have been delivered. The bag which was not delivered was to arrive on the date on which 199 bags arrived, all the bags having been loaded in the same waggon. So there was non‑delivery of one bag on 1st August 1950, when the delivery of the rest was taken. The time would, therefore, run from 1st August 1950, and the suit in view of Article. 31 of the Limitation Act, had to be filed within 12 months from the date of non‑delivery. In this case the suit was filed on 15th December 1951, whereas it should have been filed four months earlier. It was, there fore, filed beyond one year. The suit was, therefore obviously time‑barred. This point was considered by the High Court of Patna in the case of Gopi Rain Gouri Shanker v. G. I. P. Railway Company (A I R 1927 Pat. 335). In that case it was held that “where a great part of a consignment has been delivered on a certain day, there is ordinarily no necessity to enter into evidence on the question of when the balance of consignment ought to have been delivered, because the time when the consignment as a whole ought to have been delivered is manifestly the time when the greater part of the consignment arrived at its destination.”

 

It was contended on behalf of the opponents that the time in cases of non‑delivery or short‑delivery should run from the day the carrier finally refuses to deliver or expresses hi, inability to do so. I do not accept the view put forth or, behalf of the opponents, for the simple reason that these words do not find place in Article 31 of the Limitation Act. Besides, on the facts of this case also, the view put forth on behalf of the opponents cannot be accepted. In this particular case the non‑delivery of one bag was established on 1st August 1950, when only 199 bags as against 200 were delivered to the opponent. The 200th bag, therefore, ought to have been delivered on 1st August 1950, and since it was not delivered on that day, the suit should have been filed within 12 months of that date.

 

There is also considerable force in the contention of the learned counsel for the applicant that the words “said to contain” written on the R. R., did not throw burden of proof on the carrier to show that 199 bags and not 200 were delivered to them. The words ‘said to contain’ have been the subject‑matter of several decisions of the High Court I accept the view that the words ‘said to contain’ do not amount to saying that the statement in the R. R., that the consignment consisted of 200 bags was accepted by the railway. On the contrary the words, as they read, show that it is an assertion made by the consignor that the consignment consist of 200 bags, but the railway is not in a position to F verify that assertion. These words would be redundant if the statement in the R. R., on verification was found correct. The statement in the R. R., that it contains 200 bags is utilised merely for the purpose of freight, and not for any other purpose. It does not amount to accepting the statement as true. This view gets support from the case reported in 1917 2 K B 661. The R. R., therefore is not a conclusive proof of the fact that the quantity mentioned in it was a correct quantity.

 

There is also substance in the argument of the learned counsel for the applicant that the remarks of the Registrar that the seals could have been tampered with by railway‑men are not supported by any evidence. It is not denied that the seals were found intact when the waggon was opened. If there was any allegation that the seals had been tampered with, while the goods were in transit, the burden lay on the opponents to prove the same. The Registrar had no material before him to justify the above observation.

 

The rulings cited by the learned counsel for the opponents do not apply to the facts of this case, as in those cases, the goods were not despatched in one waggon. In those cases it became therefore necessary for the Court to find out when the goods in case of each waggon, ought to have been delivered. In this case, as said above, the goods were loaded in one waggon. Certain arguments based on risk‑note and negligence etc., were advanced on behalf of the opponent. These points, as it appears from the order of the Registrar, were not raised before him. Even otherwise I do not see how they are relevant to this case. I, therefore, allow the revision application with costs.

 

A. H. Petition allowed.

 

 

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