BRITISH INDIA STEAM NAVIGATION COMPANY, LIMITED, BY THEIR LOCAL AGENTS MESSRS MADURA CO LTD AT CALICUT Vs. HUSSAIN KASIM SHETT, BY MUKHTIAR AND AGENT GANNI HUSSAN SHETT

JUDGEMENT

(1.) PETITIONERS ask for the dismissal of the plaintiff s suit on the ground that it is barred by limitation under Articles 30 and 31 of Schedule I of the Limitation Aet. The plaint as it stands is for damages for non-delivery by a carrier, and according to the fall Bench decision in Jaldu VenkataSubba Rao v. Asiatic Steam Navigation Co.30 Ind. Cas. 840: 39 M. 1: 29 M. L. J. 342: 2 L.W. 805: 18 M. L. T. 236: (1915 M. W.N.644 the period of limitation is one year and the plaintiff s suit is apparently filed too late. The objection as to limitation was not taken in the Original Court where the suit was decreed.The question now is whether this Court should interfere in revision. The only case actually in point that the petitioner s Counsel can quote is Tara Sankar Ghose v. Nasaruddi 29 Ind. Cas. 476: 19 C. W. N. 970, 22 C. L. J. 589 where it was held that e Court acted with material irregularity when it entertained an application which was on the face of it time barred. In the present case, however, the appeal to the Subordinate Judge, with the decree in which we are now concerned, was not filed out of time and we have to consider whether the Subordinate Judge acted with material irregularity in not exercising the powers conferred by Section 3 of the Limitation Act. The Subordinate Judge could not very well dismiss the suit which had already been dismissed, nor could he dismiss the appeal as being out of time. It appears to me that Section 3 does not lay the duty upon Appallate Courts of dismissing suits filed out of time in the Original Court, and in this view I am supported by Dattu v. Kasai(3) 8 B. 535: 4 Ind. Dec. (N. S.) 732. In Duraisami Udayan v. Kadirsa Bowthen, 32 Ind. Cas. 785: 3 L. W. 176.Seshagiri Aiyar, J., took the view that an Appellate Court did not act with material irregularity in not adjudicating upon a plea of limitation which had not been pressed before it and I agree with him. A question of limitation must always be one depending upon the facts,.although upon the facts stated in the plaint, the plea would appear to be justified in the present case, yet if the plea had been taken at the earliest stage, it might have been met by an amendment of the plaint or by a withdrawal of the suit with permission to bring another, whereas plaintiffs are now precluded from obtaining any relief if the plea so tardily raised, is accepted. As interference is certainly not called for on equitable grounds and as I think that the Subordinate Judge was not guilty of material irregularity in accepting jurisdiction, I dismiss this petition with costs.