Skip to content


Firm of Sivdutt Rai Gulab Rai Vs. the Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal Suit No. 173/1 of 1951-52
Judge
Reported inAIR1960AP406
ActsLimitation Act, 1908 - Sections 14 - Schedule - Article 30; Hyderabad Limitation Act - Sections 15(2) - Schedule - Article 25; Hyderabad Railways Act - Sections 46; Railways Act, 1890 - Sections 77; Government Act, 1320 F - Sections 3
AppellantFirm of Sivdutt Rai Gulab Rai
RespondentThe Union of India (Uoi)
Appellant AdvocateG.P. Shangi, ;Bishamber Dayal and ;Gopal Rao Ekbote, Advs.
Respondent AdvocateS.P. Rai Devi Pershad, Adv.
DispositionAppeal dismissed
Excerpt:
(i) limitation - period of notice of claim - section 14 and article 30 of limitation act, 1908, section 15 (2) of hyderabad limitation act, section 46 of hyderabad railways act, section 77 of railways act, 1890 and (hyderabad ) suit against government act, 1320f - notice of claim to railway authority under section 46 of hyderabad railways act - suit filed after expiry of period of notice - whether period of notice can be excluded from computation of period of limitation - section 46 does not contain any provisions as to bar of suit until expiry of period of notice - notice in question cannot be regarded as notice of suit either - notice period can not be excluded from limitation period. (ii) wrong remedy - section 14 of limitation act, 1908 - period expired on pursuing wrong remedy.....srinivasachari, j.1. this is an appeal on behalf of the plaintiff who filed a suit for the recovery of a sum of rs. 21,910/- being the amount of damages claimed by him on account of damage and breakage to the machinery booked at belgunj railway station (g. i. p.) to hyderabad. the plaintiff alleged that his representative at aligarh made over to the g. i. p. railway at belgunj railway station certain machinery for being sent to hyderabad and that the said machinery was loaded in a covered wagon on 13-7-1946.at the time of the loading it was agreed that the wagon would be weighed at agra in order to determine the weight of the consignment and accordingly the weight was taken at agra and the consignment weighed 8 stones 16 cwt. in the ordinary course, according to the plaintiff, the.....
Judgment:

Srinivasachari, J.

1. This is an appeal on behalf of the plaintiff who filed a suit for the recovery of a sum of Rs. 21,910/- being the amount of damages claimed by him on account of damage and breakage to the machinery booked at Belgunj Railway Station (G. I. P.) to Hyderabad. The plaintiff alleged that his representative at Aligarh made over to the G. I. P. Railway at Belgunj Railway Station certain machinery for being sent to Hyderabad and that the said machinery was loaded in a covered wagon on 13-7-1946.

At the time of the loading it was agreed that the wagon would be weighed at Agra in order to determine the weight of the consignment and accordingly the weight was taken at Agra and the consignment weighed 8 stones 16 cwt. In the ordinary course, according to the plaintiff, the consignment ought to have reached Hyderabad on or about 27-7-1946 but there was delay on the way and the machinery reached Hyderabad only on 27-8-1946. The machinery was received in a badly damaged condition and some parts were broken and some missing. On receipt of the goods the plaintiff applied to the station master, Hyderabad, to reweigh the wagon and give him open delivery after assessing the damages. The consignment was weighed. It weighed 214 maunds 25 seers i.e., 24 maunds 27 seers short.

The plaintiff's allegation is that the station master declined to assess the damage and asked the plaintiff to approach the Head Office for assessment of damages. The plaintiff says that he applied to the Chief Commercial Manager of the then N. S. Railway on 5-9-1946 requesting him to grant open delivery of the consignment after assessment of damages. The Commercial Inspector of the railway was deputed to give open delivery of the consignment and he took a note of the parts missing and broken, and assessed the damages at I. G. Rs. 2000/-.

The plaintiff being dissatisfied with the assessment of damages, issued a notice on 2Ist October 1946 under Section 46 of the Hyderabad Railways Act, corresponding to Section 77 of the Indian Act, to the N. Section Railway as well as to the Government of India owning the G. I. P. Railway. To this notice the plaintiff received a reply on 25-11-1946 from She Government of India to state that the matter was being enquired into by the Chief Commercial Manager of the N. Section Railway as he was the competent authority to deal with the suit claim and that the result of his enquiry would be communicated to the plaintiff.

The plaintiff appears to have sent a further reminder on 20-1-1947 and kept on reminding the railway authorities. Finally, it would appear that the Chief Commercial Manager of the N. Section Railway by his letter dated the 24th November 1958 rejected the plaintiff's claim alleging that under the risk notes under which the goods were consigned, the railway was not responsible. The plaintiff alleges that he subsequently preferred an appeal to the Secretary, Department of Railway, Government of Hyderabad.

It is stated that so far nothing had been known about the appeal before the Secretary. On these allegations the plaintiff filed a suit holding the N. Section Railway and the G. I, P. Railway responsible for the damage caused to the machinery transhipped at Belgunj. The plaintiff assessed the damages at Rs. 21,910/-. The Deputy Chief Commercial Manager of the G. I. P. Railway and the Deputy General Manager of the N. S. Railway both filed separate written statements. In substance they did not admit that any damage was caused.

The further plea was that the suit was barred by limitation; that the suit was not maintainable for the reason that no notice of claim and of the suit as required by Section 77 of the Indian Railways Act and Section 80, C. P. C. respectively were given by the plaintiff. They further contended that the District Court at Secunderabad where the suit was filed had no jurisdiction to try the suit. Yet another plea was raised viz., that unless the plaintiff proved that the partnership under which he was carrying on business, was a registered partnership the suit would not lie.

2. The District Judge framed the necessary issues arising from these pleadings and before the trial began an application was filed on behalf of the defendants under Order 14, Rule 2, C. P. C. praying that the first issue might be decided as a preliminary issue before the other issues were gone into. After hearing the arguments of both the parties, the learned Judge thought that in the circumstances of the case it was desirable to dispose of issue No. 1 in the first instance.

Issue No. 1 related to the question as to whether the suit was barred by limitation, because the delivery of the goods was made on 20-9-1946 and the suit was brought on 28th August 1950 and according to the defendants Article 30 of the Limitation Act applied to the case under which the suit should have been brought within one year of the date of delivery.

3. It may be observed that in his plaint the plaintiff pleaded that no part of his claim was barred by limitation by reason of the fact that from 27-8-1946 till the date of the suit the plaintiff was corresponding with the defendants-railways and he had also filed an appeal to the Secretary, Railway Department, Government of Hyderabad against the orders of the claims Superintendent of the Railway which had not been disposed of. The learned Judge came to the conclusion that the suit was time-barred and, therefore, dismissed the suit. It is this order of the learned District Judge that is sought to be attacked here in appeal.

4. Learned counsel for the appellant advanced a four-fold argument before us. The first contention was that according to the terms of Section 48 of the Hyderabad Railways Act which was the statute governing claims against the railways in Hyderabad, it was incumbent upon him to prefer a claim before the Railway authorities and no suit could be filed in a civil court until the claim was disposed of by the railway authorities. He urged that if the Railway Superintendent disallowed his claim, the matter had to be taken up in appeal before the Secretary, Railway Department, and it was only after the matter had been disposed of by the Secretary that he could file a regular suit and at the instant case the Secretary had not disposed of the case at all and the matter must he deemed to he still pending before him.

The second argument was that the position was such that at the time when the cause of action accrued to the plaintiff there was no forum where he could file a suit. He said that he could not sue the State Government which by then became owner of the N. Section Railway without his having been granted permission by the Legal Adviser for filing a suit against the Government under the provisions of Act V of 1320F. which was the law extant then.

In so far as the G. I. P. Railway was concerned, the contention was that the Hyderabad State had become a sovereign State by that time and under the provisions of international law no suit could be brought in a sovereign state as against another sovereign state. His argument, therefore, was that it was only after 1-4-1950 when the railway was handed over to the Union Government that this bar could be said to have been removed.

5. It was further argued that if for any reason the appellant was not entitled to the exclusion of the above period under Section 15(2) of the Limitation Act he was entitled to such exclusion under Section 14 of the Limitation Act. Learned counsel for the appellant craved leave to amend his plaint by adding a further ground of exemption from limitation in addition to those already set forth. We heard the objections of the other side and we permitted the appellant to amend his plaint by adding a further ground of exemption from limitation.

The further ground of exemption was, that in any event he was entitled to exclude all the period that elapsed in the correspondence with the Railway and the proceedings before the appellate authority, because, according to the appellant he must be deemed to have been prosecuting bona fide and in good faith a civil proceeding in a wrong court. He, therefore, invoked Section 14 of the Limitation Act and urged that if that period was excluded the present suit would be well within time. The appellant filed an amended plaint to which an amended written statement was filed on behalf of the Railway.

6. The first question to be taken into consideration is as to what the period of limitation would be for a suit of this kind. It may be observed that the law of limitation that would apply to this suit would he the Hyderabad Limitation Act, for the Indian Act was introduced in the State only in 1951 by the Part B States Laws Act, Act III of [1951. The relevant Article in the Hyderabad Act was Article 25 corresponding to Article 30 of the Indian Limitation Act. Article 25 Hyderabad Limitation Act -- (Art. 30 of the Indian Limitation Act) is as follows :

'Against a carrier for One year When the losscompensation for losing or Injuryor Injuring goods. occurs.'

The subsequent Article viz., Article 26 corresponding to Article 31 of the Indian Limitation Act would apply where the suit is for compensation for non-delivery or delay in delivery of goods. In this case it is admitted that there was delivery but that the goods delivered had been damaged and therefore Article 30, Indian Limitation Act alone would apply. Applying this article, the date of delivery according to the plaint is 20-9-1946 and the suit in the ordinary course should have been brought by 20-9-1947.

The question, therefore, is whether the plaintiff is entitled to claim exemption from limitation either under Section 15 (2) of the Hyderabad Limitation Act or Section 14 of the Indian Limitation Act. Section 15(2) of the Hyderabad Limitation Act is as follows :

'Where under the provisions of any law, it is incumbent upon the plaintiff to take any proceedings in any department, or to obtain permission or to give notice to the defendant, before filing a suit, all the period which is spent in such proceedings or in obtaining permission or the period of giving such notice, will be deducted.'

Counsel for the appellant placed reliance upon this provision and argued that under Section 46 of the Hyderabad Railways Act it was incumbent upon him to take proceedings before the railway authorities before he filed a suit. Section 46 of the Hyderabad Railways Act is exactly similar to Section 77 of the Indian Railways Act. Section 77 reads as follows ;

'A person shall not be entitled to a refund of an over-charge in respect of animals or goods carried by railway or to compensation for the loss, destruction or deterioration of animals or goods delivered to be so carried, unless his claim to the refund or compensation has been preferred in writing by him or on his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway.'

Learned counsel for the appellant sought to point out a difference between the wording of Section 40 of the Hyderabad Railways Act and Section 77 of the Indian Act. The contention was that the preferring of a claim in writing before the railway administration was a sine qua non to the filing of a suit under Section 46, while it was not so under Section 77 of the Indian Railways Act. In so far as Section 77 of the Indian Act is concerned, it must he taken to he now well settled that the object of this section is surely to prevent stale and possible dishonest claims for loss.

The idea underlying this provision is that it should not become impossible for the railway to trace the transaction or verify the allegations made by the claimant. The evidence should not become unavailable by reason of long delay in preferring the claim. The obj'ect of the section was not to deprive the customers of their legitimate right or stop the claims from going to court to establish their claim. A duty has been cast upon the claimants to prefer their claims expeditiously to enable the railway authorities to investigate into the matter to get the necessary information as to whether any loss had been caused and if so, how.

The prior preferring of a claim before the Railway is only as a weapon of defence for the Railway against any fraud being practised. Not doubt the law enjoins the issue of a notice and the making of a claim to the railway authorities under Section 77 prior to the filing of the suit. But it does not say that the claimant should wait till tie disposal of the claim by the railway authorities before he institutes a suit. It is not necessary to refer to the various authorities on this point. Suffice it to refer to a decision of the Madras High Court in Govern or General in Council v. Ajithbhai Jayanthilal and Co., : AIR1952Mad795 , and a decision of the Hydyerabad High Court in Shankarappa v. Union of India, AIR 1957 Hyd 21. The question is whether the words in Section 46 of the Hyderabad Railways Act are different from those in Section 77 of the Indian Act and are capable of interpretation that is sought to be put on them by the counsel for the appellant,

7. Section 46 of the Hyderabad Railways Act only says that it would not be open to any person to file a suit for compensation for the loss, destruction or deterioration, until he had preferred a claim in writing before the Superintendent (Claims) of the Railway within six months of the date of the delivery of the goods. We do not see any point of distinction whatsoever between this section and Section 77 of the Indian Railways Act. Section 77 of the Indian Railways Act reads as under:

'A person shall not be entitled to a refund of an over charge in respect of animals or goods carried by railway or to compensation for the loss, destruction or deterioration of animals or goods delivered to be so carried unless his claim to the refund or compensation has been preferred in writing by him or on his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway.'

Learned counsel sought to make out from the words. 'It would not be open to file a suit' occurring in Section 46 of the Hyderabad Railways Act that the preferring of a claim before the railway authorities and its disposal by them was a condition precedent to any suit being filed in court of law. The object of Section 46 of the Hyderabad Act is the same as that of Section 77 viz., to prevent stale and dishonest claims being made after the lapse of a long time making it impossible to get any clue or evidence with regard to the lost goods.

It is only a statutory safeguard for the railway to prevent the claimant from putting the railways at a disadvantage for want of evidence, when he files a suit. The claim in the suit would be held to be unsustainable if no application for compensation for loss or deterioration was filed before the railway administration. Section 46 does not provide a remedy but only cuts one in cases where claim would lie according to general law.

If, therefore, the preferring of a claim before the railway authorities is not a condition precedent to the filing of a suit within the period prescribed by law the question would arise as to whether the plaintiff is entitled to deduct the period that elapsed in the correspondence with the railway finally resulting in the latter rejecting his claim. The plaintiff invokes Section 15(2) of the Hyderabad Limitation Act which is in these terms:

'15 (1) x x x x x

(2) If under any law it is incumbent On a plaintiff before filing a suit in a court, to take proceedings in any department or obtain permission or issue notice to the defendant then the time that is taken in pursuing those proceedings or in obtaining permission, or the period of notice prescribed under the law, would be excluded in computing the period of limitation,'

In the Hyderabad State before any suit could be 6Ied against the Government it was necessary that the suitor should apply to the Government (Legal Adviser) for permission to ,sue. An application for permission had to be filed enclosing a copy of the plaint in the suit and it was only after the requisite permission was granted could the suit be filed. This was necessary by reason of Section 3 of the Art relating to Suits against Government Act, V of 1320 F. which was to the following effect:

'No suit shall he filed against the Government without the permission of the Madarul Maham (Prime Minister) and such permission would he accorded only if the conditions and circumstances set forth in the Act ......'

This Act has since been repealed. But at the time when the cause of action for the present suit arose Act V of 1320 F. was extant. The section envisages the seeking of the permission of the Government before instituting a suit only where the Government is the defendant and not otherwise. The delivery of the goods in this case was made on 21-9-1956. If the Hyderabad Government owned the railway then the obtaining of the necessary permission was essential.

We do not think it necessary to go into this question for the reason that the plaintiff in this case did not, as a fact, apply for permission to sue. The contention of the learned counsel in this regard is that he awaited the disposal of the claim preferred by him before the railway authorities in order to apply for permission to sue the Government. When the Railway Claims Superintendent rejected his claim on 24th November 1948 the plaintiff again invited the attention of the railway authorities to the legal position and requested them to consider about the matter over again.

The railway authorities referred to their previous letter dated 24th November 1948 and stated that there were no grounds to admit the claim. The plaintiff says that not being content with the communication of the railway, he preferred an appeal before the Secretary, Railway Department, and it is stated that the said department did not go into the matter and the plaintiff received no reply either fixing a date for hearing or rejecting his appeal. Learned counsel contends that under the circumstances the appeal must be deemed to be pending.

The respondent railway denies that any appeal was preferred and puts the plaintiff to strict proof thereof. The plaintiff-appellant has not produced before the Court any document evidencing the fact of an appeal having been preferred and its being pending. In our opinion even if we assume that an appeal was filed, it does not carry the case of the appellant any further.

8. Herein we may straightaway point out that there does not appear to be any provision in the Hyderabad Railways Act providing an appeal to the Government against the order of the Railway Claims Superintendent. It may be that on the administrative side the Secretary to the Government In the Railway Department is the superior authority over the officer in charge of claims against the Railway. Even on the assumption that the plaintiff had to approach the railway management for a settlement of his claim, before he filed a suit, no appeal having been provided for in the Hyderabad Railways Act the plaintiff could not have waited till the disposal of the appeal, if any, to file a suit.

With regard to the period that elapsed in the correspondence between the plaintiff and the railway management, we are of the opinion that that period cannot be deducted in the computation, of the period of limitation and the plaintiff is not entitled to exclude that period. The claim made to the railway administration under Section 46 of the Hyderabad Railways Act is not a notice of suit as the section does not say that till the expiry of the period of notice, no suit could be filed.

Section 46 no doubt enjoins a claimant for

compensation for loss against the railway to approach the railway administration in the first instance before instituting a suit, but that is only to enable the railway as has been stated above, to make enquiries early about the alleged loss ot goods. The words 'karavai kare' or 'take proceedings' occurring in Section 46 apply to cases where certain preliminary adjudication is necessary such as for example, in cases where the dispute is with regard to crown grants, suite could not be filed without the suitor approaching the revenue authorities for a direction to sue.

The object of preferring a claim before the railway authorities being clear, it has no analogy to taking proceedings before the revenue authorities prior to the institution of a suit regarding Crown grants. The Railways Act does not in our opinion make it obligatory on a claimant for compensation to exhaust his remedies before the railway administration and the appellate authority thereon before he could institute a suit. It does not put a statutory bar to the filing of a suit.

We may refer to a case of AIR 1957 Hyd 21. We are, therefore, of the opinion that Section 46 of the Hyderabad Railways Act cannot be construed as to entitle the plaintiff to exclude the period of correspondence with the railway.

9. Having disposed of the contention of the counsel for the appellant with regard to the exclusion of the period under Section 15 (2) of the Hyderabad Limitation Act, the other argument to be considered is the exemption from limitation claimed under Section 14 of the Limitation Act. This further alternative plea of exemption from limitation was allowed to be raised in this court by permitting the plaintiff to amend the plaint. Plaintiff claims exemption from limitation for the period between 24-9-1948 to the date of the suit, and contends that the period that elapsed in correspondence with the railway administration, the Railway Claims Superintendent and the Secretary to Government in the railway department should he regarded as a civil proceeding prosecuted in good faith in a court which could not entertain it for want of jurisdiction. Learned Counsel's contentions are two-fold in this regard.

He submits that the practice ere-long prevalent in the Hyderabad State with regard to the claims against the railways was to approach the railway authorities in the first instance and on being unsuccessful there to seek permission from the Government for filing a suit after obtaining the requisite permission to file a suit. He urges that he must be deemed to have prosecuted the proceedings bona fide and in good faith having believed that that was the correct procedure. That the plaintiff did not take the necessary proceedings in the Department concerned for permission to sue the Government is admitted.

The explanation given is that he could not approach the Government for permission before the matter had been finally disposed of by the railway and for this Purpose reliance is placed on a letter said to have been received by another party from the Legal Adviser's Office calling upon him to exhaust his remedies. This letter is not addressed to the plaintiff. Further it cannot be held to establish a practice. Above all, a general practice cannot take the place of a statutory obligation.

The appellant seeks to rely upon a decision of the Hyderabad High Court in Mangani Ram Nathmal v. Govt. of India. 1LR (1952) Hyd 983 : (AIR 1958 Hyd 139), and argues that the High Court had accepted that such a practice existed, of approaching the Government for sanction to sue the Government after the stage o appeal in the Railway Department had been gone through. The observations of the learned Judges do not in our opinion amount to the court having given recognition to the practice as an established practice having the force of law for the observations of the learned Judges are only to the following effect:

'We do not think that the plea of the revision petitioner that the Legal Adviser's Office wanted in some kindred cases that he should also file an appeal before the Railway Secretary is incorrect.'

Even otherwise with respect we would say that the statutory law does not justify our holding that the remedy of an appeal should be gone through before applying for permission to sue. Coming to Section 14 of the Limitation Act, the question is as to whether the provisions could be held to apply to the facts of this case. Section 14 of the Hyderabad Limitation Act which is in terms similar to Section 14 of the Indian Act is as follows:

'(I) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding whether in a court of first instance or in a court of appeal, against the defendant shall he excluded, where the proceeding is found upon the same cause of action and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature is unable to entertain it.

10. In order to attract the provisions of Section 14 of the Limitation Act, it is necessary that the prior proceedings should be civil proceedings carried on in a court, and secondly such proceedings should have been prosecuted in good faith and with due diligence. The intention of the legislature in enacting this section appears to be not to punish litigants for mistakes of procedure which had been made on wrong advice. The idea is that a party should be protected where a prior bona fide proceeding proved abortive by reason of want of jurisdiction or some similar cause.

The first question that falls for consideration is whether the proceedings are of a civil nature and in a court. In order to determine as to whether a particular proceeding could be called a 'civil proceeding' within the meaning of Section 14, the precise nature of the proceedings and constitution of the authority before whom such proceedings are taken would have to be looked into. A proceeding before a Settlement Officer for mutation of names in the Revenue records or an application to the Collector under Land Registration Act could not be regarded as a civil proceeding in a court.

Even if the proceeding be considered to be a civil proceeding still it being not before a Court but before a purely executive officer it would not fall under Section 14 of the Limitation Act. In Ramdutt Ramkissen v. E. D. Sasoon and Co., ILR 56 Cal 1048 : (AIR 1929 PC 103), the Privy Council held that a proceeding before an arbitrator is a civil proceeding; so also a proceeding before a Revenue Court would be regarded as a civil proceeding but not one before a Revenue Officer. Proceedings before a Railway administration cannot be regarded as civil proceedings but as proceedings before an administrative officer.

The decision of the Privy Council relied upon by the learned counsel for the appellant cannot help him. That was a case where the previous litigation was in a civil court for the establishment of their rights, and the Privy Council declared that the time taken in previous litigation when they were bona fide litigating for their rights should be deducted; vide Nrityamoni Dassi v. Lakhan Chandra Sen, ILR 43 Cal 660 : (AIR 1916 PC 96). Their Lordships of the Privy Council had to consider a case under the Oudh Estates Act, and they declared that the committee of Taluqdars who gave the award, could not be regarded in any sense, as a court, to make their decision operative as res judicata -- Harshankar Partab Singh v. Lal Raghuraj Singh, 34 Ind App 125.

This would make it abundantly clear that it is not every authority who enquires into a matter and investigates that could be regarded as a court within the meaning of the word 'court' in Section 14 of the Limitation Act.

11. The next question is as to whether the plaintiff could be regarded as having carried on the previous proceedings in good faith. Section 2(7) of the Limitation Act says that nothing shall be deemed to be done in 'good faith' which is not done with due care and caution. Where the law does not enjoin the exhausting of a remedy before a particular authority, before filing a suit in a court of law, if a party carelessly continues to proceed, with his remedy allowing the period of limitation to expire he cannot be held to be prosecuting another civil proceeding in good faith within the meaning of Section 14 of the Limitation Act. We may herein refer to the case, of Section R.M.M.A. Firm v. Maung Po Saung. ILR 7 Rang 466 : (AIR 1929 Rang 297), and the case of Sheo Dhari Ram v. Gupteswar Pathak, 78 Ind Cas 482 : (AIR 1924 Pat 716).

12. It was next urged that if a party pursued a wrong remedy on the wrong advice of counsel that would afford a ground for the party claiming exemption from limitation of the period spent in pursuing a wrong remedy. Reliance was sought to be placed on a decision of the Hyderabad High Court in Azam limit v. Mohd. Aldul Razzack. AIR 1957 Hyd 4. In that case the matter related to the question as to in whose jurisdiction the suit was to be filed.

There was diversity of opinion as to whether the particular piece of land was in the boundaries of one Municipality or of the other. The counsel believing that the land was in one Municipality advised the client to file a suit in the court exercising jurisdiction over that area. On an objection being raised with regard to jurisdiction the Court returned the plaint for presentation to the proper court. The plaintiff presented the plaint in the District Court, Secundarabad. The Secundarabad Court, returned the plaint holding that it had no jurisdiction.

The plaintiff again presented it in the District Court, Hyderabad. The returning of the plaint by the City Civil Court in the first instance and then by the Secunderabad Court clearly indicated that the matter was not clear as to what Municipality the suit land was part of and in that indefinite state of affairs if the vakil advised the client and the plaintiff acting upon such advice instituted the suit in a wrong court those special circumstances were held to be enough to entitle the plaintiff to claim exemption under Section 14 of the Limitation Act.

Mistaken advice of a vakil may be sufficient cause in particular cases. There can be no general doctrine that a party could claim exemption from limitation seeking shelter under the wrong advice of a vakil. Vide in this connection Rajendra Bahadur Singh v. Rajeshwar Bali, AIR 1937 PC 276. There was no justification in our opinion for the plaintiff to await a final communication from the railway authorities to institute proceedings in Court. He did so at his own peril.

There is no evidence on record that he issued a notice to the railway company that he would be compelled to file a suit if the matter was not settled. There has been want of due care in this case which disentitles the plaintiff to invoke Section 14 of the Limitation Act.

13. Yet another argument advanced on behalf of the appellant which requires consideration is that by the time he could file a suit, the Hyderabad State ceased to be under the supremacy of the British Government and became an independent and sovereign State. When Hyderabad State became a sovereign State he could not sue the Union of India which was another sovereign State under the principle that no suit could be filed in one sovereign State against another sovereign State.

This argument in our opinion is fallacious and far-fetched. Learned Counsel attempted to contend that on 15th August, 1947 Hyderabad became a sovereign State when India became independent and the British supremacy was withdrawn. As a fact we do not think that this result followed in consequence of India becoming independent on 15th August 1947. The indecia of a State being independent are that that State in addition to having complete suzerainty over the area covered by the State, other matters such as Defence Communications and External Affairs are also within its control.

If these matters are not within its control and are excluded from the scope of its authority, such a Slate cannot be called an independent sovereign State. We may also point out herein that the so called independence if it could be called independence at all, could be said to have existed only between 15th August 1947 and the date when the Nizam signed the stand-still agreement, which was in October 1947. Once he signed the stand-still agreement and became a party to the terms thereof there could be no independence of the Hyderabad State thereafter.

It became part and parcel of the Indian Union with particular privileges accorded to the former ruler of the State. It would be stretching the point too far to say that the moment the supremacy of the British Government over the protected State of Hyderabad under the Nizam was withdrawn, the Nizam became independent. In our opinion Hyderabad became a constituent part of the Indian Union and was not an independent or sovereign State. Therefore the argument that the plaintiff could not file a suit in Hyderabad, Hyderabad being a sovereign State as against another sovereign State viz., the Indian Union, is devoid of any force.

Learned Counsel invited our attention to the observations of the Supreme Court in The Director of Endowments Hyderabad v. Akram Ali, : AIR1956SC60 . While discussing about the powers exercised by the Nizam their Lordships observed:

'The Nizam was an absolute sovereign of domestic matters at that time and his word was law.'

The position therefore of the Hyderabad State was that the ruler was supreme in so far as domestic matters were concerned and with regard to the other matters such as Defence, Communications, and External matters he was subject to the control of the British Government. This position did not change in consequence of the withdrawal of the British Supremacy. The place that was held by the British Government must be deemed to have been taken by the Indian Government after the Independence and after the coming, into force of the Constitution it became a part of the Union of India comprising various States.

Incidentally learned counsel referred us to a decision of the Hyderabad High Court in ILR 1952 Hyd 983: (AIR 1953 Hyd 139). This was a casa wherein the plaintiff filed a suit against the Union of India owning the East Punjab Railway and the Union of India owning the N. Section Railway for nondelivery of certain goods despatched to Hyderabad from a place in Northern India. The consignment in this case was despatched on 20th November 1946 and it was delivered only on 20th July_ 1950. The consignor issued notices to the two railways, one under Section 46 of the Hyderabad Railways Act to the N. Section Railway and another under Section 77 of the Indian Act to the East Punjab Railway.

After some correspondence the railway intimated to the plaintiff on 20-7-1948 that the claim could not he entertained as it was barred by limitation. The claimant not being content with this carried further proceedings and on 17-2-1949 his claim was rejected as being out of time. The claimant filed an appeal to the Secretary to the Government in the Railway Department and the Secretary does not appear to have taken any steps to dispose of the appeal. Finally he filed a suit. When he was met with the plea of limitation he contended that he had no remedy till the advent of the Constitution and, therefore, his suit was within time.

The lower Court rejected this contention and dismissed the suit. The matter came up in revision before the High Court and the learned Judges who decided the revision held that before the advent of the Constitution and the integration of the State Railway on 1-4-1950 with the Indian Railways the remedy of the plaintiff was suspended. While coming to this conclusion the learned Judges opined that initially the provisions of the Suits against Government Act, Act V of 1320F. was in the way of the plaintiff filing a suit, because the Nizam-State Railway was a State-owned Railway and to sue it the permission of the Government was necessary.

They further held that the legal adviser's Office wanted in some kindred cases that he should also file an appeal before the Railway Secretary before approaching the legal adviser for permission. Having regard to this consideration the learned Judges agreed with the contention that was raised in the case that there were impediments in the way of the plaintiff filing a suit till the advent of the Constitution. We might herein point out that the observation of the learned Judges in the above case to say that the application before the Legal Adviser for permission could not be filed because in certain cases the Legal Adviser wanted that the appeal should be preferred before the Secretary, Railway Department against the order of the railway administration before permission could be granted does not appear to have been based upon any record before the learned Judges, of the Legal Adviser having asked the plaintiff to approach the Secretary and exhaust his remedy of appeal. The learned Judges appear to have acted upon what was stated by the counsel for the plaintiff that In other cases such a thing had happened.

It may be said that the fact that in kindred cases there was a direction by the Legal Adviser to exhaust the remedy of appeal before the Secretary; Railway Department, before applying for permission could not be taken to be the governing law, for the practice of an office cannot take the place of law. As we have observed already, if the plaintiff seeks to rely upon this circumstance as preventing him from applying for permission he ought to satisfy the court by pointing out an express provision of law that before applying for permission to sue the Government he should approach the railway administration and thereafter the appellate authority.

Admittedly there is no appeal provided for in the Hyderabad Railways Act against the order of the Claims Superintendent, and there is no provision of law that the remedy before the Railway authorities should be exhausted. Therefore this contention has no basis. We have thus disposed of the argument that the impediments in his way of suing any of the railways was by reason of the Hyderabad State having become an independent and sovereign State.

14. Much stress was laid by the learned counsel on the fact that Section 14 of the Limitation Act should be construed liberally and reliance was placed on a decision of the Patna High Court in Lal Bihari Lall v. Bani Madhava Khatri, AIR 1949 Pat 293 (FB), and a decision of the Privy Council in 56 Ind App 128 : (AIR 1929 PC 103). Lord Salvesan observed with respect to Section 14 of the Limitation Act that in Indian litigation it is consistent: with the experience of their Lordships that the time necessary for the decision in a suit may be of much longer duration than one is accustomed to in the courts of Great Britain.

Hence a necessity for some provision to protect a bona fide plaintiff from the consequences of some mistake which had been made by the adviser in prosecuting his claims. The Privy Council, as has been stated already, was of the opinion that the wrong advice of a counsel cannot in all cases be plended to claim exemption under Section 14 of the Limitation Act, We are, therefore, of the opinion^that the plaintiff cannot get any exemption from limitation either by virtue of Section 15 (2) of the Hyderabad Limitation Act or under the provisions of Act V of 1320 F. or under Section 14 of the Limitation Act. The suit in our opinion has been rightly dismissed as being out of time. We, therefore, dismiss this appeal with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //