MANGANI RAM NATHUMAL Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) THIS is a reference from the Single Bench dated 11 -4 -1952. We have heard the arguments of the learned advocates of the parties and record our opinion below.

(2.) THE reference has arisen from a revision petition against the order of the District and Sessions Court, Secunderabad, dated 9 -8 -1951, by which the revision Petitioner's (the joint family of Mangani Ram Nathmal per Manager Nathmal) suit against (1) the Government of the Union of India owning the East Punjab Railway per the Chief Administrative Officer of East Punjab Railway, head office, Delhi and (2) the Government of the Union of India owning the Nizam State Railway per General Manager, Head Office, Secunderabad, was dismissed. Hence the revision and the reference by the Single Bench. The facts alleged are that on 20 -11 -1946 a consignment of two bags of 'alu baqara' and one of 'hing' valued at Rs. 569 were on behalf of the revision -Petitioner handed over to the North Western Railway at Multan City for carriage and safe delivery to him in Hyderabad. The consignment was not delivered in time and was not delivered till the date of the suit i.e., 20 -7 -1950. On 8 -4 -1947, the revision -Petitioner gave notices to both the Respondent Railways under Section 4. 6, Hyderabad Railways Act, corresponding to Section 77, Indian Railways Act. The second Respondent Railway replied on 17 -4 -1947 that the matter was receiving attention and after some correspondence by which they sent for the original 'bichuk' and the receipt, they ultimately intimated the revision -Petitioner on 20 -7 -1948 that, his claim cannot be entertained as it was barred by limitation. The revision -Petitioner carried on further correspondence protesting that his claim was not barred, but the said Respondent on 17 -2 -1949 dismissed his claim again on the same plea of limitation. To enable himself to sue the Respondents Railways, the revision -Petitioner filed an appeal to the Secretary to Hyderabad Government, Railway Department, on 6 -1 -1949 but the Secretary did not reply and it seems that he did not take any action on the appeal till the date of the suit. In these circumstances the revision -Petitioner has claimed that he had no remedy till the advent of the. Constitution on 26 -1 -1950 and the integration of the Nizam State Railway with the Indian Railways on 1 -4 -1950 and hence his suit is within time. Respondent 2 ' filed a written statement on 10 -1 -1951 pleading that the revision -Petitioner was not entitled to maintain the suit as not only he had given no notice under Section 80, Indian Code of Civil Procedure and Section 77, Indian Railways Act, taut his suit is also hopelessly out of time. The first Respondent Railway also filed a written statement on 31 -3 -1951 and it is to the same effect.

(3.) THE most difficult question in this revision, however, is that of limitation. The learned advocates for the Defendants argued that the suit is hopelessly out of time from every point of view. They argued that Article 26, Hyderabad Limitation Act, corresponding to Article 31, Indian Limitation Act, is the only article that is applicable to this suit; that the goods were consigned for delivery on 20 -11 -1946 and, therefore, time began to run as soon as the ordinary period of transit was over; that for a consignment to arrive from Multan to Hyderabad it could not take more than a month or so and, therefore, taking the ordinary period of transit to end, say, on 1 -1 -47 time began to run from that date and the revision Petitioner should have filed the suit before 1 -1 -48 but he has filed it on 20 -7 -1950; that there was no need for the Plaintiff to enter into any lengthy correspondence with the Respondent Railways as they were not admitting any liability; that he should, therefore, have forthwith given the notice and filed the suit in pursuance of Section 77, Indian Railways Act; that even conceding without admitting that he waited for a reply of the Respondent Railways, the first reply was given to him on 20 -1 -1948 and he should have filed the suit within one year of that date; that even conceding further that he entered into negotiations pleading with the Railways that his suit was not barred by limitation, which he should not have done and even exempting this time, he should have filed his suit within one year of the second refusal of his claim on 6 -1 -1949, i.e., on or before 6 -1 -1950 whereas he has filed his suit, as already stated, on 20 -7 -1950' Thus, the learned advocate argued that looked at from any point of view, the Plaintiff's suit is hopelessly out of time. The learned District and Sessions Judge has in the judgment under revision fully endorsed this opinion. We have to examine whether this finding and the contentions of the learned advocates can be upheld after considering the reply of the learned advocate for the revision -Petitioner.