UNION OF INDIA Vs. FIRM BAIJNATH GOVIND DAS

JUDGEMENT

(1.) A consignment of 106 bales of cloth was dispatched from Ahmedabad to Mirzapur for delivery to the Plaintiff Respondent on 19-2-1947. On 14-3-1947 only 104 bales were delivered and amongst them there of the bales were found tampered with. The remaining two bales were not delivered at all. Two separate notices were given by the Plaintiff to the Defendant claiming damages, one in respect of the shortage that was found in 104 bales, and the other in respect of the remaining two bales referred to above. In regard to the first matter Suit No. 72 of 1948 was instituted in the court of small causes on 15-4-1948 for recovery of a sum of Rs. 197-13-6. In regard to the other matter Suit No. 199 of 1948 was instituted on 8-5-1948 in the court of the Munsif. In this second suit a plea was raised by the Defendant to the effect that the suit was barred by Order 2, Rule 2 of the Code of Civil Procedure. That plea found favour with the learned Munsif and he dismissed the suit allowing the Defendant half of his costs from the Plaintiff.

(2.) In appeal the lower appellate court came to the conclusion that Order 2, Rule 2 was no bar. The lower appellate court accordingly allowed the appeal and remanded the case to the trial court with directions to readmit it in its original number and then to proceed with it according to law. It is against that order that the present appeal has been filed in this Court.

(3.) No appearance has been entered by the Plaintiff-Respondent in spite of due service of notice. Upon a reading of the plaint and the provisions of Order 2, Rule 2 of the Code I am of opinion that the view taken by the lower appellate court was incorrect. In paragraph 7 of the plaint it was stated that "the cause of action for the present suit arose on 14-3-1947 being the date of delivery of only 104 bales and failure of the railway company to deliver the two bales of cloth at Mirzapur." Order 2, Rule 2 of the Code of Civil Procedure provides as follows: