(Prayer: Petitions (disposed of on 25-11-1949) under S. 25 of Act IX of 1887 praying the High Court to revise the decree of the Court of the Subordinate Judge, Guntur in S.C.S. No. 97 of 1946 etc.)

The main and important point for consideration is whether the suit is barred under Art. 30 or Art. 31 of the Indian Limitation Act. The plaintiffs suit was for recovery of the price of certain goods, namely, bales of cotton cloth which had been lost by the defendants who are common carriers during the course of the transit of the articles from Rajapalayam to Guntur. It is common ground that the goods in question were handed over to the South Indian Railway company on 7-9-1944 at Rajapalayam for dispatch to Guntur. It is also proved beyond doubt that these goods reached the Tondiarpet Marshalling Yard in the Madras City on the midnight of 17-9-1944 and that sometime later the goods were lost. On enquiries made by the railway company it was found that a gang of thieves had opened the wagon in the Yard and carried away the packages. Since the goods were not delivered at the destination to the plaintiff, who was the consignee of these goods, in proper time, the suit was for recovery of a sum of money, being the price of the goods as the damages for non-delivery of the goods. Exs. P. 4 to P. 22 are letters between the parties, by which the question of non-delivery was discussed. The substance of this correspondence is that the plaintiff had been writing to the 1st defendant for the payment of the compensation amount and the 1st defendant putting off the plaintiffs claim by saying that the matter was under consideration. Though the first defendant knew as early as 20-9-1944 that the goods were lost, the information to that effect was not passed on to the plaintiff and finally it was only on 20-9-1945 the plaintiff was informed of the 1st defendants inability to deliver the goods as per Ex. P.

2. This date should be taken as the crucial date on which the impossibility of performance of the contract was made known to the plaintiff. The suit was filed on 1-8-1946. The question therefore is whether the lower Court is right in holding that the suit is barred by limitation.

Art. 30 of the First Schedule to the Limitation Act contemplates cases where a suit is filed against a carrier for compensation for losing or injuring the goods and in the third column the time from which period has to begin is mentioned as when the loss or injury occurs. Art. 31 contemplates a suit against a carrier for compensation for non-delivery or delay in delivering the goods and the time for filing the suit is one year from the date when the goods ought to be delivered. There has been a large body of case-law as to which of these Articles has to be applied in the circumstances like the present, and the preponderance of authority in this Court is to the effect that Art. 31 is applicable. Therefore, what we have to see is what was the date when the goods ought to be delivered. As the learned Subordinate Judge finds, there is no date fixed on which the plaintiff was to be handed over the goods in question at Guntur and therefore the proper period should be when the plaintiff was informed that he could not be given the goods, and that was on 20 9-1945. In Palanichami Nadar v. Governor General of India in Council (1945) 2 M.L.J. 448=58 L.W. 592), Yahya Ali J. had to consider a similar case. The learned Judge, after considering the case-law on this topic, came to the conclusion that for a suit against a railway company for compensation for non-delivery of goods consigned for transit, time under Art. 31 of the Limitation Act (period of one year from date when the goods ought to have been delivered) begins to run from after the definite refusal or declaration of inability to deliver by the responsible railway company. The learned Judge followed two earlier decisions of this Court, namely, M. and S.M. Railway v. Bhimappa (23 M.L.J. 511), and South Indian Railway Co. v. Narayana Iyer (46 M.L.J. 302). Very recently my learned brother, Mack J. had also to consider M. Seetharama Sastri v. Hyderabad State (1949) 2 M.L.J. 298). In that particular case, a merchant delivered the goods on 21-8-1944 to the railway company for carriage from Bezwada to Lahore. On 7-11-1944, the merchant received a letter from the consignee that the goods have not reached him. Then the consignor sent a notice on 8-2-1945 to the railway company complaining of the non-delivery of the goods and asking for payment of their value. No reply was vouchsafed to this letter. Therefore, the consignor filed the suit on 31-10-1945 for recovery of the value of the goods. It was held that the suit was filed properly within the period of limitation, namely, one year of the receipt of the information of non-delivery, and that therefore the suit was not barred. The learned Judge also considered the earlier decision of Yahya Ali J. in Palanichami Nadar v. Governor General of India in Council (1945) 2 M.L.J. 448=58 L.W. 592). In the present case, though Exs. P. 4 to P. 22 show that there was correspondence between the plaintiff and the 1st defendant, the 1st defendant company did not definitely and categorically state their inability to deliver the goods till 20-9-1945 and, in the circumstances, following the decisions referred to above, namely, Palanichami Nadar v. Governor General of India in Council (1945) 2 M.L.J. 448=58 L.W. 592), and Seetharama Sastri v. Hyderabad State (1949) 2 M.L.J. 298). I am inclined to hold that the date from which limitation has to be computed is when finally it was mentioned by the 1st defendant that the delivery could not be made.

Mr. V.K. Ramanatha Aiyar, appearing for Messrs. King and Partridge on behalf of the Railway company, has urged that these decisions being by single Judges are not binding on me and that following certain decisions of the Lahore High Court and especially the decision in Secretary of State v. The Dunlop Rubber Co. , (6 Lah. 301), I must hold that the date from which the period of limitation should be computed should be some reasonable period from the date when ordinarily the goods would have reached Guntur. In view of the circumstances that no date was fixed for the delivery of the goods at Guntur, it cannot be said that it is possible for the Court to fix a possible date for such an act. In the cases referred to by me above, the same question arose and both the learned Judges have held that the limitation should be computed only from the period when the common carrier expressed the inability to deliver the goods. It seems to me that the decisions of those learned Judges enunciate the correct proposition. Moreover, these decisions are founded upon the earlier decisions of this Court, one of which at least is a Bench case. M. & S.M. Railway v. Bhimappa (23 M.L.J. 511), is a decision of Benson O.C.J. and Sankaran Nair J. where the learned Judges have held that the burden of proving, in a suit governed by Art. 30 of the Limitation Act, the time when the goods entrusted to the railway company were lost is on the company. Waller J., has also held in South Indian Railway Co. v. Narayana Iyer (46 M.L.J. 302), that the Article of limitation applicable to a suit by a consignee for damages for the loss of goods in transit is Art. 31, the starting point being the date when the railway company finally says that the goods cannot be delivered. In these circumstances and, considering the consensus of authority in this Court, I do not think I will be justified in preferring the Lahore cases which lay down the view contrary to the Madras decisions. I am therefore of opinion that the suit is not barred by limitation.

The next point urged is that according to the risk note in Form Z, which is marked as Ex. D.1(b), it should be proved that the damage or loss arose from the misconduct on the part of the railway administration. Mr. Ramanatha Aiyar argues that in this case there has been no misconduct whatever. The learned Subordinate Judge has considered the question and came to the conclusion that the failure to provide adequate safeguards as well as the non-examination of the sentinels who were keeping watch over the goods in the Marshalling Yard at Tondiarpet lead to the inference of misconduct and wilful negligence on the part of the defendant. The finding regarding misconduct being on a question of fact, I cannot interfere in revision. There is no substance in the argument that misconduct or wilful negligence on the part of the railway company has not been proved.

The last argument of the learned Counsel is based upon an interpretation of S. 75 as well as the second schedule of the Indian Railways Act. According to S. 75, when any articles mentioned in the second schedule are contained in any parcel or package delivered to a railway administration for carriage by railway, and the value of such articles in the parcel or package exceeds Rs. 100, the railway administration shall not be responsible for the loss, destruction or deterioration of the parcel or package unless the person sending or delivering the parcel or package to the administration caused its value and contents to be declared at the time of the delivery of the parcel or goods to the railway authority for the transit. It is urged that in this case the consignor from Rajapalayam has not mentioned that the articles contained lace and that therefore the railway company is not liable. According to the second schedule, item (c) relates to cloths and tissues and lace of which gold or silver forms part, etc., and item (n) relates to lace and furs. It cannot be said that item (c) of the second schedule applies, because there is no evidence that the cloths contained either silver or gold lace. Then we have to fall back upon item (n), that is, lace and furs. Unless the value of the lace or furs comes to Rs. 100 there is no necessity for declaring that amount and from the evidence in this case it is not possible to hold that the lace which are not of any valuable kind are worth Rs. 100 at all. The learned Subordinate Judge was inclined to agree with the plaintiffs version and held that the lace in question was not of such value as to attract the operation of schedule II of S. 75 of the Indian Railways Act. Mr. Ramanatha Aiyar invited my attention to Ex. P. 2 and contended that because the value of items 1 to 4 amounted to Rs. 271 and the rest to more than Rs. 300, it should be presumed that they contained lace of sufficient value so as to make obligatory upon the consignor to declare the amount. I am not satisfied that such an inference can be drawn from Ex. P. 2.

Another complaint of the learned Counsel for the petitioner is that the lower Court did not allow an opportunity for the first defendant to examine one Ganapathi who had stated somewhere that the value of the lace was more than Rs. 200. It is stated that an application for examining him was made to the lower Court and that the learned Subordinate Judge rejected it. I am not satisfied that there was any irregularity in the learned Subordinate Judges rejecting a very belated application to examine a witness who presumably may be on inimical terms with plaintiff in as much as he had already dismissed him. No other point has been argued in this revision petition, which is therefore dismissed with costs.

C.M.P. No. 7885 of 1949 :This is a petition for the admission of fresh documents in the civil revision petition as additional evidence. No authority has been shown to me that the entire provisions of O. 41, Civil Procedure Code and especially O. 41. R. 27 are applicable to the civil revision petitions under the Provincial Small Cause Courts Act. I do not wish to base my decision on that point alone, as there are no justifying circumstances which would allow me, even if O. 41, R. 27 applies, to admit additional evidence in a civil revision petition. This civil miscellaneous petition is therefore dismissed.