UNION OF INDIA Vs. AINKUMAR KALURAM

JUDGEMENT

(1.) THIS is a Letters Patent appeal from a decision of Tare J. By that decision the learned Single Judge reversing the judgments of the Courts below remitted the plaintiff-respondent's suit praying for a decree for Rs. 484/11/3 against the appellant for further trial.

(2.) BRIEFLY stated the plaintiff's case was that eight bales of cloth were consigned to him by Messrs Bachharaj Amolakchand of Nagpur from Nagpur to Itarsi on 3rd january 1947; that on 18th January 1947 seven of these bates were delivered but one was not delivered as it was said to have been stolen; that subsequently a case of theft in respect of the bale was registered against one Dwarkaprasad who was tried and convicted for the offence of theft; that the baie was also recovered from dwarkaprasad and during the course of the criminal trial was handed over by the court to the A. D. C. I. , Bhopal; and that it was in the month of November 1952 that the plaintiff came to know for the first time thai the bale had been delivered to the A. D. C. I. , Bhopal. Tile further averment of the plaintiff was that after the receipt of the bale by the a. D. C. I. , Bhopal, the railway administration became a trustee of the property belonging to the plaintiff and that, therefore the railway authorities were bound' to return the bale or its price. The plantiff's prayer was that a decree for Rs. 484/11/3 be passed against the defendant, and, if the bale had been sold at a higher price, a decree for the amount of that higher price be passed against the defendant. The suit was instituted on 3rd November 1954.

(3.) THE learned Civil Judge, Hoshangabad, who tried the suit dismissed it holding that it was barred by time under Article 31 of the Limitation Act. He relied on a decision of the Nagpur J. C's Court to which reference will be made shortly. In appeal, the learned Additional District Judge, Hoshangabad, upheld the decision of the trial Court. In second appeal, our learned brother Tare J. took the view that the cause of action for the suit was not non-delivery of the bale hut ihe refusal of the railway authorities to deliver the bale to the plaintiff after it had been received by them from the criminal Court; that this was another cause of action arising in november, 1952; and that consequently the suit was governed not by Article 31 but by Article 48 of the Limitation Act. He found support for his view in the decision of Patna High Court in Sundarji Shivji v. Secy. of State, ILR 13 Pat 752: (AIR 1934 Pat 507), He further observed that the decisions in G. I. P. Ry. Co. v. Radhakisan Taikisan, AIR 1926 Nag 57 and Ramlal v. B. N. Ry. Co. , Ltd. , Calcutta, 31 Nag LR (Sup) 79 : (AIR 1936 Nag 21) were not in point. Accordingly he held that the plaintiff's suit was within time and made an order of remand.