Authored By : L.W.J. Costello, G.D. McNair

L.W.J. Costello, J.

1. This is an appeal against a judgment and decree ofLord-Williams J. Two points, broadly speaking, were put forward on behalf ofthe defendant-appellant and both of them were in the nature of a demurrer. Thefirst has relation to the question of jurisdiction of this Court to entertain thesuit at all, for that the defendant does not carry on business within thejurisdiction of this Court, and that the requirements with regard to the noticeprovided for by Section 77, Railways Act, (Act 9 of 1890) which has to beserved by the plaintiff before making his claim, did not accurately describethe cause of action so as to bring the matter within the territorialjurisdiction of this Court. The other point was one of limitation. It is con.tended on behalf of the defendant-appellant that Article 30 of Schedule 1, Lim.Act, 1908 applied to the circumstances of this case. There is no doubt that ifthat contention is correct, and if Article 30 does apply to this case, then theplaintiff is unable to succeed, because it is quite clear that the suit wouldbe barred by lapse of time.

2. The learned Judge came to the conclusion that thecontention of the defendant as regards the point of limitation could not besustained, and that the Article governing the facts of this matter is Article115 of Schedule 1, Lim. Act of 1908. This matter has had a somewhat curioushistory with the result that today we are in effect sitting in appeal asregards a judgment delivered by Lort-Williams J. as long ago as 23rd May 1930.The judgment delivered by Lort-Williams J. on 23rd May 1930 was taken in appealand came before She late Chief Justice of this Court Sir George Rankin andPearson J. on 16th April 1931, and the Court of Appeal then held that thequestions discussed before Lort-Williams J. were of such importance that theyshould not have been dealt with on a mere application to revoke leave grantedunder Clause 12 of the Letters Patent. The matter had originally come beforeLort-Williams J. upon an application of that kind. The Court of Appeal remandedthe matter to be dealt when the suit came on for trial in the ordinary course.Thus It came about that the points dealt with by the learned Judge in hisjudgment of 23rd May 1930 came again before the same Judge (as it happened), on9th November 1936. On that date however, neither party availed himself of theopportunity of giving evidence as contemplated by the Court of Appeal, whenthey declined to adjudicate upon the matter in 1931. On 9th November 1936therefore the position, to all intents and purposes, was precisely the same aswhen the matter originally came before Lort-Williams J. on 23rd May 1930; andso it is not surprising, in the circumstances that the learned Judge on 9thNovember 1936, said : "I see no reason to alter the opinion which I havealready given in my judgment, dated 23rd May 1930." It follows, therefore,as I have already indicated that although in form this is an appeal against thejudgment of the learned Judge dated 9th November 1936, in substance it is anappeal from the judgment of the learned Judge given on 23rd May 1930.

3. We have now only to consider the question of limitation,for, that was the only point determined by the learned Judge, and it is theonly point which has been argued before us. All that we have to decide iswhether or not the Secretary of State for India in Council can take advantageof the provisions of Article 30 of Schedule 1 to the Limitation Act, 1908 andavail himself of that provision as a plea in bar of the plaintiffs claim. Thelearned Judge came to the conclusion that Article 115 was the Article mostappropriate to the facts of this case. He based his decision upon this, that ithardly could be intended that a railway administration or Government should beabsolved from the onerous responsibilities of common carriers, and yet at thesame time have the benefit) of the short period of limitation expresslyprovided by Article 30 for traders who are burthened by the law with suchobligations. The learned Judge took the view that as the responsibility of therailway administration for loss of and damage to goods, is regulated by Section72, Railways Act, 1890 which puts a railway company into the position of abailee under Sections 151, 152 and 161, Contract Act of 1872, and the railwayadministration has not the liability of common carriers, it must have beenintended by the Legislature that Articles 30 and 31 should not apply but shouldonly be available to persons who are in the position of common carriers.

4. The learned Advocate-General has re-minded us of the well-knownobservations of Lord Esher with regard to the position of a Court which isbeing invited to express an opinion on the provisions of statutes or otherenactments and it is argued that it is clearly not the function of the Court tomake endeavours to get behind the precise language of an enactment for thepurpose of ascertaining what might be presumed to be the intention of theLegislature at the time when the enactment was made. In the course of theargument, I quoted the words of Lord Bacon when he said that the Court has tojus dicere and not jus dare. We have to interpret the statute as we find it andnot put a gloss upon it or read into it something which is in fact not there.The precise words of Article 30 are these:

Against a carrier for compensation for losing or injuringgoods, the period described is one year from the date when the loss or injuryoccurs.

5. The language of Article 31 is this:

Against a carrier for compensation for non-delivery of, ordelay in delivering goods, one year, when the goods ought to be delivered.

6. Lort-Williams J. was of opinion that word carriershould be read as if it was exactly the same thing as the two words commoncarrier. Mr. Mazumdar has invited us to say that that is the correctinterpretation of the Article. In other words, it is contended on behalf theplaintiff respondent that we ought to place before the word carrier thequalifying adjective common, so that the operation of both the Article (30and 31) should be restricted to those cases in which the defendant is in law acommon carrier. Mr. Mazumdar sought to fortify his argument by an historicalsurvey of various statutes or Acts of the Legislature relating to railways,relating to limitation and relating to carriers. Put quite shortly, that partof Mr. Mazumdars argument which is based on chronological and historicalreview of the enactments of the kind I have enumerated comes to this, thatuntil the Carriers Act of 1865 came into existence there was no specificprovision in the Limitation Act relating to suits against carriers, and it wasonly after 1865, actually in the year 1871, by the Limitation Act of that yearthat for the first time there came into existence a definite provision withregard to limitation in relation to suits of that character. That provision wascontained in Articles 36 and 37 of the Schedule to the Act 9 of 1871.Subsequently those two Articles became Articles 30 and 31 of the Lim. Act of1877. The other fact which Mr. Mazumdar thought of considerable importance forthe purpose of his argument was that an amendment was made touching thequestion of limitation in an Act of the year 1899, Act 10 of that year whichwas described as an Act to amend the law relating to carriers and which in factadded a Section 10 to the original Carriers Act, 1865, and which, at the sametime, by Section 3 of Act 10 of 1893 transferred Articles 30 and 31 of Schedule1, Lim. Act, 1877 from part 5 to part 4, thereby reducing the period oflimitation from two years as it was then to one year as it became from theyear 1899 onwards. At the same time, Section 3 of Act, 10 of 1893 made a slightalteration, or rather made an addition to Article 31 by putting in the wordsnon-delivery.

7. From the circumstances I have just mentioned, Mr. Mazumdarasked us to draw the inference that the word carrier as used in Articles 30and 31 must be looked at in the light of the Carriers Act, 1865, Therefore itcan only have application in the case of common carriers. It is quite clearthat a railway company as regards its responsibility towards persons consigninggoods is liable only to the extent provided for by Section 72, Railways Act1890, which repealed the previous Act of 1879 which Act had contained aprovision, that the Carriers Act of 1865 had no application to railways. Mr.Mazumdar however rests his argument ultimately and indeed fundamentally uponthe fact that in Section 2, Carriers Act of 1865 there is a definition whichseems to put the Government as a carrier outside the category of common carriers.That however, in my opinion, is of little importance and indeed of doimportance at all because as Mr. Mazunadar agrees, railways whether they areowned and controlled by the Government, or whether they are not, that is tosay, whether they are State railways or non-State railways, they are all in thesame position, as regards their responsibility as carriers of goods. Takingtherefore a broad definition of carriers, we find it for example in WhartonsLaw Lexicon, one can scarcely doubt, that railways whether State-controlled ornot, can quite accurately be described as carriers, even though for thepurposes of the Carriers Act, they are not common carriers. It seems to me thatit would be a misuse of language to say that railways which carry goods forreward are not carriers, even though it is quite accurate to say that for thepurposes of the Carriers Act of 1865 and any amendment of that Act they are notcommon carriers. In my opinion, it would not be right that we shouldinterpolate into Article 30 the qualifying restriction implied by the wordcommon as applied to carriers. There is a case, Mylappa Chettiar v. TheBritish India Steam Navigation Co. Ltd. which is varymaterial to the pre-sent discussion. In that case the plaintiff had been theconsignee of certain timber through defendant 1 which was a firm of carriers bysea. The timber was consigned under a bill of lading. Defendant 2 was a firmwhich had a monopoly of landing all the goods from ships belonging to defendant1 but on receipt of separate charges from the consignee. It was held

(1) that there was a privity of contract between theconsignee and the landing agent, defendant a; (2) that the case being one ofcontinuous carriage of goods defendant 2 was a carrier though not a commoncarrier within the meaning of the Carriers Act of 1865; and (3) that the suitagainst both the defendants was governed by Article 31, Lim. Act.

8. This case is of importance for our purpose by reason ofthe second and the third points of the decision. Sir John Wallis, who was thenthe Chief Justice of the Madras High Court at p. 555 says:

The suit as against defendant 1 is barred under Article 31according to the Full Bench ruling in Venkatasubba Row v. Asiatic SteamNavigation Co., Calcutta AIR (1916) Mad 314 ....

9. Mr. Justice Kumaraswami Sastri says at p. 557:

There can be little doubt that defendant 2 company arecarriers though not common carriers within the moaning of the Carriers Act of1865. The word " carrier " in Its general sense means a person orcompany who undertakes to transport the goods of another person from one placeto another for hire and defendant 2 falls within the definition.

10. Lower down on the same page the learned Judge observed:

If however defendant 2 company are carriers and I think theyare, it is clear that Article 31, Limitation Act, would apply equally to them.It is not necessary for the purposes of Article 31 that they should be commoncarriers.

11. With that proposition I respectfully and entirely agree.I am supported in that view of the matter by two cases which were decided inthe High Court of Allahabad. Unfortunately they do not seem to have found theirway into the authorized Law Reports, but they are to be found in the All IndiaReporter for the year 1933. The first of these two cases is F.D. Footwear v.N.W. Railway : AIR1933All348 . The head-note of that case isas follows:

It is true that Government is excluded from the definitionof " common carrier " for the purposes of Carriers Act, 1865, butArticle 31, Lim. Act, does not contain the expression "common carrier"; it only applies to a " carrier " and is therefore presumablyof a wider meaning, and therefore Article 31 does apply to a State Railway.

12. King J. in the course of his judgment at p. 349 said:

The first point taken is that Article 31 does not applybecause Government is not a " carrier " within the meaning of Article31. It is pointed out that in Section 2, Carriers Act 1865, the expression" common carrier " is defined as denoting " a person other thanthe Government, engaged in the business of transporting for hire property fromplace to place, by land or inland navigation for all persons indiscriminately.

13. I am disposed to adopt this language as being of directapplication to the circumstances of this present appeal. The learned Judgecontinued:

The argument is that Government is expressly excluded fromthe definition of "common carrier"; so Article 31 cannot apply to asuit against a State Railway. In this case it appears that both the railwaysconcerned, namely N. W. Railway and the G. I. P. Railway, are State Railways. Ithink there is no force in this contention. It is true that Government isexcluded from the definition of " common carrier " for the purpose ofthe Carriers Act, 1865 but Article 31, Lim. Act, does not contain theexpression " common carrier "; it only applies to a " carrier" and is therefore presumably of a wider meaning. I see no reason on theface of it why it should not apply to a State Railway and Article 31 has beenapplied to the case of a State Railway in Radha Shyam Basak v. Secretary ofState AIR (1917) Cal 640. I may also note that in Mutsaddiial v. B.B. &C.I. Ry. Co., and Rohilkhand Kumaun Ry. Art 31 was applied toa suit of this nature although it does not appear that the railway in questionwas a State Railway.

14. That decision was given on 3rd February 1933. About amonth later, a similar point came before Mukerji J. in the same High Court inthe case in Alamgir Footwear Co. v. Secretary of State :AIR1933All466 . We need not pause to consider the precise facts of the case. Itis sufficient to refer to a passage in the judgment at page 467 where thelearned Judge says this:

The next point urged was that even if the suit wastime-barred, against the Railway Administration it was not barred against theSecretary of State. This is a fallacious argument. The Secretary of State hasbeen impleaded only as the owner of the railway concern and not in any othercapacity.

15. Mr. Mazumdar, in answer to a question from me, said thathe was not seeking to draw a distinction between the Secretary of State and therailway administration. He admitted that for the purposes of the present casethe railway administration and the Secretary of State must be taken to be oneand the same.

16. The learned Judge further said:

The argument that the Government is not a common carrierwithin the meaning of the Carriers Act (Act 3 of 1865) does not make the Secretaryof State for India in Council incapable of taking advantage of Article 31,Schedule 1, Limitation Act. There the word used is carrier and not a commoncarrier. Then there is no warrant for the contention that the word carrierin Article 31 has the same meaning as the words common carrier as defined inthe Carriers Act.

17. This judgment is obviously very germane to the point nowbefore us. It is with considerable regret that 1 find myself unable to agreewith the view taken by Lort-Williams J. in the year 1930 but I think that uponthe plain, unambiguous and unequivocal words of the Article we have toconstrue, one is bound to hold that the word carrier is of a wider meaningthan the expression common carrier and that it is wide enough to cover thecase of a railway owned or controlled by Government which took upon itself tocarry goods belonging to the plaintiff from one place (Poradah Junction) toanother, namely (Cossipore Road). It follows, therefore, that the defendant wasin a position to avail himself of the protection afforded by Article 30 orArticle 31 or both. The appeal is therefore allowed and the suit dismissed,with costs throughout. The applicant will be entitled to retain his costs ofthe appeal and of the suit out of the moneys lying in Court.

G.D. McNair, J.

18. I agree with the judgment which has just been deliveredby my learned brother and I have nothing to add.

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Secretary of Statevs. Golabrai Paliram (03.05.1937- CALHC)