HARBANS LAL SOHNI Vs. PEERZADA GH AHMAD

JUDGEMENT

(1.) THIS is a plaintiffs appeal in a suit for the recovery of Rs. 1900/ - from the defendants, being the price of the articles of food supplied at an At Home given in honour of the Late Bakshi Ghulam Mohd when he laid down the reins of his office as Prime Minister of the State. The plaintiffs case was that in connexion with the aforesaid At Home he was approached by the defendants and asked to supply certain articles of food at an evening party. In obedience to the orders placed by the defendants, the plaintiff supplied articles of food, but a sum of Rs. 1900/ - remained outstanding and has not been paid to him, despite several demands. The suit was contested by defendants 1, 2 and 4 who denied having placed any orders with the plaintiff for supply of any article of food at the Evening Party. The plaintiff examined three witnesses in support of his case, but no evidence in rebuttal was led by defendants. The trial Court accepted the plaintiffs case and decreed the suit. On appeal, the learned District Judge found that the suit was barred by Art. 8 of the Limitation Act and so it was entitled to be dismissed on that ground alone. The learned Judge accordingly dismissed the suit without entering into the merits of the case.

(2.) MR . Tiku counsel for the appellant raised a short question of law. He submitted that on a true and proper interpretation of Art. 8 of the Limitation Act it would appear that this Article has absolutely no application to the facts of the present case. Mr. Tiku argued that Art. 8 is applicable only where food is supplied by the keeper of a hotel, tavern or lodging house (as the case may be). In the instant case it is the admitted case of the parties that food was supplied in the New Secretariat premises where the evening party was given. P.Ws Ghulam Mohd. and H.L. Soni have deposed in support of this case. Mr. Kaul, however, seriously contested the validity of this argument and submitted that Art. 8 is of much wider amplitude and embraces any transaction under which articles of food are supplied even outside the premises of the hotel concerned. Art. 8 runs thus: - For the price of food or drink One year. When the food or sold by the keeper of a drink is delivered, hotel, tavern or loding house. A perusal of article would clearly show that this provision is confined only to the price of food sold by the keeper of a hotel, tavern or lodging house. The next question that arises is where the articles of food should be sold. In our opinion it is clear in Art. 8 that the articles must be sold to the consumer at the hotel, tavern or lodging house. The provision prescribes one years limitation and the intention of the legislature seems to be that this Article should apply only to such cases where the delivery -is made at the premises or sites of the hotel, tavern or lodging house. In the Indian Limitation Act which has recently been amended in the rest of India the period of limitation has been extended to three years. Mr. Kaul, however, relied on an authority of the Rangoon High Court in S. Pershad V. Firm of Unica, AIR 1940 Rangoon 17, and particularly on the following observations of a single judge of that court: "The best definition which I can think of is to say that food and drink, the price of which would come under Art. 8, must be meals or articles of food which are either consumed on the premises or are taken away by the customer which are intended for, or capable of, immediate consumption in the state in which they are sent out, that is to say without cooking; though I am not quite sure if merely heating and not really cooking -that is the necessity for their being heated, would alter them from food and drink to goods, but this point is not required in this case." These observations do not at all imply that even if the articles of food are supplied outside the hotel still Art. 8 would apply. The learned Judge has taken care to mention that the articles of food should be consumed at the premises or sent out or taken away by the customer which means that if after the articles are sold and the customer does not choose to consume the same at the hotel but takes them out or removes them outside the hotel, still Art. 8 would apply. These observations therefore support our view that the main factor which governs the application of Art. 8 is the sale and delivery of food at the hotel, tavern or lodging house. Reid. J. in Bhag Singh V. Dhirta Singh, (1908) PLR 428, 429 observed as follows : - "The practice is that the liquor is consumed on the vendors premises, and the vendors accounts, accepted by the lower appellate Court, contains entries for small sums, e.g., 16, 9, 4Â 1/2 annas, which indicate immediate consumption on the premises. Tavern is defined in Websters Dictionary as a public house where travellers and other transient guests are accommodated with rooms and meals, an inn, a hotel, especially in modern times, a public house licensed to sell liquor in small quantities. The last definition appears to cover a village liquor shop, such as that at which the defendant -petitioner purchased the subject matter of this suit." These observations also indicate that Art. 8 would apply only to cases where the articles are sold at the hotel, tavern or lodging house concerned. That it seems to us that the two essential conditions for the application of Art. 8 are: 1. that there must be a sale by the keeper of a hotel, tavern or lodging house ; 2. that the delivery must be completed at the premises of the hotel, tavern or lodging house. It therefore follows that unless these two conditions are satisfied, Art. 8 would not apply. In this view of the matter, it is manifest that in the present case the articles of food for which orders were placed by the defendants, were not supplied at the hotel but at the premises of the New Secretariat and therefore Art. 52 would apply to this case and not Art. 8. It might be mentioned here that in para (3) of the plaint the plaintiff has made a clear averment that the articles of food were prepared at the New Secretariat lawns and the defendants in their written statement did not specifically deny this averment, although they denied that they had placed any orders with the plaintiff. In view of this unchallenged averment, there is sufficient material on the record to prove that these articles were prepared at the New Secretariat lawns and not in the premises of the plaintiffs hotel.

(3.) LASTLY it was argued by Mr. Kaul that there is no legal evidence to show that the defendants had placed any orders with the plaintiff. We are, however, unable to agree with this contention because two witnesses of the plaintiff namely Ghulam Mohd. and the plaintiff himself have clearly stated that the orders were placed by the defendants and one of the defendants had actually placed the order in presence of others. The defendants did not Choose to adduce any evidence in rebuttal. In these circumstances there is no reason to distrust the unchallenged testimony of the two witnesses produced by the plaintiff.