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P L D 1964 (W. P.) Lahore 444

 

Before Sajjad Ahmad Jan and Muhammad Akram, JJ

 

DELHI CLOTH & GENERAL MILLS Co., LTD.‑ Plaintiff

 

Versus

 

FEDERATION OF PAKISTAN‑Respondent

 

Regular First Appeal No. 12 of 1958, decided on 1st April 1964.

 

M. A. Rahman for Appellant.

 

Khalid M. Ishaque, Advocate‑General and M. B. Zaman for Respondent (on 1‑4‑1964).

 

Dates of hearing : 26th March and 1st April 1964.

 

JUDGMENT

 

SAJJAD AHMAD JAN, J.‑This appeal arises out of a suit brought by the Delhi Cloth & General Mills (hereinafter described as the appellant‑company) against the Federation of Pakistan (referred to hereinafter as the respondent‑railways) for recovery of a sum of Rs. 27,738‑13‑0 which was dismissed by the Senior Civil Judge, Lyallpur, Mr. M. Anwar, by his judgment dated the 8th of October 1957.

 

2. The sum in claim, according to the plaint, represented the price of 30 bales of cloth which were booked from the Lyallpur Railway Station by the Lyallpur Cotton Mills, a concern of the appellant‑company, with the North‑Western Railways for self‑delivery at Karachi to the same concern of the appellant. The consignment was covered by a railway receipt (No. 64492) and Invoice No. 154. It was alleged that a representative of the appellant‑company at Karachi visited the Railway Goods Clerk there consecutively on the 8th, 10th and 11th of May 1954, but he was told that the goods had not arrived. In paragraph 4 of the plaint it is stated that on the 11th of May, 1954, a liaison officer of the appellant‑company was informed by the Railway staff at Karachi that the bales of cloth belonging to the appellant‑company had been damaged because of fire in the Railway godowns. This, however, was followed by a letter dated the 12th of May 1954, by the Railway Goods Supervisor to the appellant‑company, stating that their consignment had reached on the 8ch of May 1954. Paragraph 6 of the plaint may be translated verbatim as follows:‑‑

 

“The total loss of the plaintiff amounts to Rs. 30,863‑13‑0. The defendant (respondent‑railways) have not delivered the booked consignment to the plaintiff (appellant‑company). The defendant had been putting up the excuse of accidental fire but the entire responsibility for the loss rests on the defendant who had not taken due care and precaution for the safety of the consignment. When the plaintiff (appellant‑company’s) representative went to take delivery of the goods, the defendant (respondent‑railways) refused to deliver the goods on the ground that they had not yet reached Karachi. For this reason the defendant is responsible at all events to pay the amount in claim.”

 

3. The respondent‑railways resisted the suit on various grounds, including the three legal objections, namely, that the suit was barred by time, that the notice served on the respondent railways under section 80, C. P. C. was defective and that the plaintiff had no locus standi to sue. On facts, it was pleaded that the respondent‑railways had taken all good care and caution for the safe custody of the goods as a bailee, as required under the law, and it was not, therefore, liable for damages. The amount of damages as price of the goods was also not accepted. The following issues were struck in the case :‑

 

(1) Has the plaintiff a locus standi to sue?

 

(2) Is the suit within time ?

 

(3) Is the notice under section 80 valid and according to law ?

 

(4) Did the defendant take as much care of the goods bailed as a man of ordinary prudence would take in similar circum stances in respect of his own goods?

 

(5) What is the amount of damages which the plaintiff has suffered for the alleged negligence of the defendant ?

 

Issues Nos. 1 and 4 were found in favour of the plaintiff. Under issue No. 5, the appellant‑company’s loss was assessed at Rs. 27,738‑13‑0. The suit, however, was dismissed under issues Nos. 2 and 3 with the findings that the suit was barred by time and that the notice served on the respondent‑railways under section 80, C. P. C. was defective in substance, not being in compliance, with the provisions of section 80 of the Civil Procedure Code.

 

4. The learned counsel for the parties have addressed arguments before us on the point of limitation as covered by issue No. 2, and as we reached the conclusion that the suit was rightly held as time‑barred by the trial Court, it was not considered necessary to advert to the other issues. For dis cussion of the question of limitation it is necessary to reproduce some of the relevant facts. As already stated, the consignment in question was booked from Lyallpur on the 30th of April 1954 and reached Karachi, according to one version, on the 8th of May 1954 and, in any case, admittedly before the 12th of May 1954. Mr. M. A. Hadi (P. W. 3), representative of the appellant‑company at Karachi, deposed as follows on this point:‑‑

 

“On 11th May 1954, we received telephonic message from the Railway Authorities at Karachi that our goods had reached Karachi on 8th May 1954 and that they were destroyed due to fire. The letter Exh. P. 5 dated the 12th June 1954, was received by us, telling us that the goods were still lying at Karachi Station and could be taken delivery of. This must be incorrect in view of the earlier telephonic message.”

 

In order to assess the value of the damaged goods the services of a representative of the General Superintendence Company (Pakistan Limited), Karachi, were enlisted. He carried out the Inspection of the goods on the 5th of July 1954 and the Company gave a certificate (Exh. P. 14) to the effect that only two bales were in a sound condition, the third had suffered a damage to the extent of 10 % and the remaining 27 were damaged to the extent of 100 %. On the 20th of August 1954, the Claim Inspector of the N. W. R., Wazirabad, sent a registered notice under sections 55 and 56 of the Railways Act to the General Manager of the Lyallpur Cotton Mills, Lyallpur, stating therein that the consignment covered by Invoice No. 154, R. R. No. 64492 was lying undelivered and if delivery was not taken within one day from the receipt of the notice it would be transferred to the Lost Property Office, Lahore/Karachi and disposed of by public auction to recover charges due to the Railway. A foot‑note was appended to this notice as follows:‑

 

“27 bales of the above consignment which remained undelivered at Karachi have been brought to Lahore. Please depute one of your representatives to effect delivery of the rest 27 bales on assessment at Lahore vide last para. of Survey Report, which is quoted below for reference :‑

 

27 bales stated above as unmarketable could, however, be sold at a nominal price to makers‑up as prints.”

 

It appears that a second survey to assess the damage was also carried out which took place on the 9th of May 1955 and on the same day the plaintiff took delivery of the three bales, two of which, as already stated, were in sound condition and one partially damaged. Finally, on the 9th of December 1954, vide Exh. P. 4, the General Manager (Commercial), Lahore, wrote to the appellant‑company that the inquiries made had revealed that the fire was accidental and not due to the negligence or misconduct of the Railway staff. It was further pointed out that the Railway as a bailee took as much care of the goods as was required by law and that the appellant‑company’s claim, therefore, was not tenable, which was therefore repudiated. This closed the chapter of correspondence between the parties on the subject and the appellant‑company filed the present suit on the 6th of December 1955. On these facts the point to be answered is which is the Article of Schedule I to the Limitation Act applicable to this case and what would be the terminus a qua under that Article ? The learned counsel for the appellant has contended that Article 31 of the Limitation Act is applicable to this case and that the starting point of limitation is the date of the final refusal of the appellant‑company’s claim by the respondent‑railway, which took place on the 9th of December 1954. The learned Advocate‑General, appearing for the respondent‑railway, has, on the other hand, contended that Article 30 of the Limitation Act applies more directly to the circumstances of this case and that even if Article 31 be held applicable, the suit is beyond time as it was instituted more than a year after the “goods ought to have been delivered”, within the meaning of that Article.

 

5. It is well‑settled that in the matter of deciding which Article of the Limitation Act governs a particular case, the Court has in the first instance to peruse the plaint and consider the averment contained therein. What has to be seen is the true effect and tile real nature of tile suit and not its formal or verbal description. The plaintiff is entitled to so frame his suit as to make a certain Article, giving a longer period of limitation, appli cable, and it is not open to the defendant to urge that the plaintiff should have framed the suit in a different manner to make applicable an Article providing a shorter period of limitation. In other words, the question would depend on the true inter pretation of the nature of the suit as framed by the plaintiff and, the argument that the suit could have been more appropriately framed in a different manner attracting a different Article is irrelevant just as the argument that the limitation is to be governed by the apparent label attached to the suit without trying to discover its real purport and content. But if the facts ultimately found or admitted are different from those as alleged in the plaint and the plaintiff’ asks for relief on the basis of the facts found arid the defendant resists the relief on the same facts the question of limitation must be determined with reference to such facts and not to the facts alleged in the plant. But the plaintiff cannot be permitted to change the nature of his suit even for purposes of limitation. Judged by these standards, the real nature and purport of the appellant‑company’s suit on the facts averred in the plaint and as ultimately found proved has to be determined. From the contents of the plaint, it is manifestly a suit for compensation for the loss or injury to the goods sustained by the plaintiff on account of the negligent conduct of the respondent‑railway to whom the goods were entrusted as a carrier. The injury to the goods by fire is a proved fact. This brings into play Article 30 of the Limitation Act which is as follows :‑

 

” Description of suit

Period of limitation

Time from which period begins to run

Art, 30 Against a carrier for compensation for losing or injuring goods.

One year

When the loss or injury occurs.

 

 

6. I have already reproduced the translation of paragraph 6 of the plaint wherein it was definitely alleged that although the defendant (respondent‑railway) bad put forward the pretext of accidental fire the entire responsibility for it lay on its shoulders because it did not take the necessary precautions for the safety of the goods. The heading of the plaint reads as follows :‑

 

“Suit for recovery of a sum of Rs. 27,738‑13‑0 towards the price of the cloth which was gutted in fire while in possession of the defendant because of the negligence and lack of care on the part of the defendant “

 

It is further clear that the factum of the loss by fire had become known to the appellant‑company on the 11th of May 1954, when a telephonic message was received to that effect from an official of the respondent‑railway by Mr. M. A. Hadi (P. W. 3), the appellant‑company’s representative at Karachi. There may have been some doubt as to how many bales had survived the damage wholly or partially, but the matter became absolutely clear when an assessment of the loss was made by the General Superintendence Company (Pakistan Limited), Karachi, on the 5th of July 1954 and when later the certificate (Exh. P. 14) showing the amount of the loss as assessed by General Super intendence Company was issued on the 12th of July 1954. Under Article 30, already quoted above, time starts running for a suit by the plaintiff against a carrier for compensation for losing or injuring the goods the moment the loss or injury occurs and the knowledge of the plaintiff as to that loss is immaterial. On a plain construction of the plaint in this case including the relief sought there is no doubt that the appellant‑company was seeking compensation against the respondent‑railway for losing or injuring its goods and the terminus a quo for that cause of action cannot be placed later than the 11th of May 1954, by which time the loss or the injury to the goods had admittedly taken place. The learned trial Judge has, however, applied Article 31 to the case and made only a passing reference to the fact that the result would be the same if Article 30 of the Limitation Act were to be held applicable because the injury to the goods was caused on the 11th of May 1954. The starting point of limitation under Article 31 is the time “when the goods ought to be delivered”. The learned trial Judge has held that in this case the goods were available for delivery on the 11th of May 1954, by which time they had reached their destination. There is some conflict of judicial authority on the construction of the words “when the goods ought to be delivered”. In Jugal Kishore v. Great Indian Peninsula Railway and another (68 I C 981), it was held that if correspondence between the parties shows that the matter was being inquired into and that there was no refusal to deliver well within a year of the suit, Article 31 of the Schedule I to the Limitation Act cannot be pleaded as a bar, for, in such a case it cannot be said that the suit was brought more than a year from the expiry of a reasonable time, within which the goods should have been delivered. In M: A. P. Palanichand Nadar v. Governor‑General of India‑in‑Council (A I R 1946 Mad. 133) it was observed that the time against the Railway company began to run under Article 31 Limitation Act, from after a definite refusal or declaration of inability to deliver the lost goods. One test of determining when the “goods ought to be delivered” was laid down by Kaikaus, J., as he then was, in the Federation of Pakistan v. Raja Fazal Dad Khan (P L D 1954 Lah. 635) by observing that “from any date on which the plaintiff could have filed his suit without being met by the plea effectively that the suit was premature, time would begin to run against him. He cannot have it both ways. He cannot say : I would have the right to file a suit but still the limitation would not begin to run’. That would be to give him more than a year for filing the suit and that is not the intention of Article 31.” In my view, the words “ought to be delivered” in Article 31 have to be interpreted on their plain meaning with reference to the facts of each case. The word “ought” connote an obligation a duty‑moral or contractual‑to do what is agree or is proper‑befitting or naturally expected. Where a time is specified in a carriage contract, goods have to be delivered at that specified time, but where no such period is specified, they ought to be delivered within a reasonable time, according to the natural expectations depending on the circumstances of each case, Where the goods are admittedly lost or damaged, there is no question of their delivery. The argument that the period during which a carrier may put off the settlement of the matter by promising an inquiry and giving hopes to the consignor of making compensation should be excluded from computation of the period under Article 31 amounts to the importation of an extraneous consideration into the context of that Article. A debtor may go on verbally assuring the creditor that he would pay his debt but that would not enlarge the period of creditor’s time to recover it in a Court of Law. Similarly, if the respondent‑railway in this case had allegedly been putting off the matter, promising to make an inquiry as to the amount of the loss suffered by the appellant company, the situation is not altered under Article 31 even if that Article be held applicable to the case, to stop the time running against the appellant‑company until the final refusal was made by the respondent‑railway on the 9th of December 1954. Time started running when the “goods ought to have been delivered” by the respondent‑railway and that was when the goods reached the destination on the 11th of May 1954 and became capable of delivery. But, as I have already stated above, 1n this case the real Article that applies is 30 and the appellant company’s suit should have been instituted under that Article within a year of the date of the loss and injury to the goods, viz. the 11th of May 1954, as the cause of action was based on loss and injury to the goods. In any case, the appellant‑company suit is hopelessly time‑barred, applying either of the two Articles, 30 or 31, even including the two months’ period of notice served by it on the respondent under section 80 of the Code of Civil Procedure. In the circumstances, we are constrained to dismiss this appeal, but leave the parties to bear their own costs.

 

K. B. A.

Appeal dismissed.

 

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