THE ANTARIM ZILA PARISHAD Vs. SRI AMI CHAND

JUDGEMENT

(1.) This is a Plaintiff's second appeal from the decree of the Civil Judge Bijnor reversing that of the Munsif Bijnor and dismissing the Appellants suit for the recovery of Rs. 850/ - as compensation for the Defendant's failure to return 10 bundles of barbed wire. The Defendant Respondent Ami Chand needed some barbed wire for his personal use but the commodity was not available in the market. He learnt that the Antarim Zila Parishad had a few bunde les of barbad wire and he was permitted to borrow them on condition that by December 1950 he would furnish security for the return of barbad wire. He did not furnish any security and in September 1953 the Parishad sent him a notice demanding the return of the good?. As he did not comply with it, the present suit was filed in August 1954. The Defendant denied all liability. He contended that the suit was barred by limitation. He also alleged that he had borrowed six bundles only. The trial court rejected the plea of limitation. It held that the suit was governed by Article 53 of the Limitation Act and therefore within time. It disbelieved the Defendant's story that he had borrowed six bundles only and decreed the suit for all the ten borrowed by him. On appeal the learned Judge reversed the finding of the trial court on the question of limitation. It held that the case was governed not by Article 53 but Article 49. He further held that the possession of the Defendant had become unlawful after December 1950 when he failed to comply with the condition under which he borrowed the barbed wire and failed to furnish security. Accordingly he dismissed the suit The Plaintiff has come here in second appeal.

(2.) It is manifest that the trial court erred in applying Article 53 which prescribes the limitation for a suit for the recovery of the price of goods sold and delivered. In this case there was no sale but only the bailment of goods. Limitation in the present suit is therefore governed by Article 49 which relates to recovery of specific moveable property, or for compensation for wrongfully taking or injuring or wrongfully detaining the same. The Defendant, borrowed a certain quantity of barbed wire but failed to return; it after a demand for its return had been made. He must be deemed to have wrongfully detained the goods and a suit for compensation for failure to return them is governed by this Article. The time limit is three years commencing from the date "when the property is wrongfully taken or injured, or when the detainer's possession becomes unlawful". The Defendant did not like the property wrongfully nor did he injure it. His possession commenced lawfully but at some stage became unlawful. The sole question in this appeal is: when did the Defendant's possession of the barbed wire become unlawful? If it became unlawful in December 1950, the suit was obviously time barred, but if it' became unlawful after the Plaintiff Appellant made the; first demand for its return the suit is within time. The appellate judge was of the opinion that the Defendant's possession became unlawful after December 1950 which was the last date for compliance with the condition on which the goods were lent. I think he was in error. In the absence of any express stipulation to the contrary, a permissive permission does not become unlawful merely because the person in possession has failed to comply with the conditions subject to which it was obtained. Breach of such conditions will entitle the bailor of the goods to demand their return, but it does not of itself make a lawful possession unlawful. It is always open to the bailor or lender of the goods to waive the condition or condone its breach. If he does not chose to do so, he has a right to demand their return. It is only when the bailee refuses or fails to return the goods on demand that his possession becomes unlawful, but until then it remains lawful for the purpose of Article 49, though he may be liable in damages for breach of the condition itself. The weight of judicial authority is in favour of the principle enunciated above. Laddo Bagham v/s. jamalluddin, 1917 ALJ 907; Kali Charan v/s. Ganeshi Lal, AIR 1950 Pat. 372. In these cases the question of the effect of the non -fulfilment of conditions on possession which commenced lawfully did not arise, but in all of them it was held that a permissive possession becomes unlawful when the demand for possession is refused. I have already explained why the breach of condition subject to which permission was given in the present case did not have the effect of making the possession unlawful. In my opinion, the possession of the Defendant became unlawful only when the demand for return was refused or ignored., Therefore the suit was within limitation.

(3.) I allow this appeal and reverse the decree of the lower appellate court. The Appellant's suit for recovery of compensation is decreed with costs throughout.