R.N. Gurtu, J.
1. Two points have been raised in this revision before us, one of limitation and the other in regard to notice under Section 77 of the Indian Railways Act.
2. A perusal of the plaint shows that the plaintiff filed this suit for damages as against the Railway on the ground that goods which had been handed over to the Railway for carriage were not delivered to the plaintiff and had been detained by the Railway. The plaint did not allege that the goods had been lost to the Railway. It appears that the goods were handed over to the Indian Railway on the 15th August 1948 on which date they were despatched from Shahzadnagar within India. When they reached Abhor inside the Indian frontier, the destination of the goods being Hyderabad Sindh, in Pakistan, a question arose whether custom duty was payable on the goods to the Indian Government.
In consequence the goods were not forwarded onwards immediately by the Indian Railway, but on the 4th July 1949 the plaintiff was intimated that custom duty was not leviable and that the cheque which the plaintiff had sent to the Indian Railway in respect thereof was being returned and that the goods would be despatched from Abhor, the station inside the Indian territory, within a day or two. Thereafter a telegram was received by the plaintiff intimating that the said goods had been despatched from Abhor on the 22nd July 1949. The goods not having been delivered to the plaintiff in Hyderabad Sindh he caused enquiries to be made from the foreign Railway in Pakistan and he was intimated that the goods were never delivered by the Indian Railway to the foreign Railway at Abhor.
3. On 23-2-1950 the plaintiff instituted the suit against the Indian Railway. He was met with the defence that there was no notice under Section 77 of the Indian Railways Act, the Railway alleging that the goods had been lost to it. It also alleged that the suit was beyond time. The Judge of the Court of Small Causes framed four issues. '(1) Is the suit time barred? (2) Was notice under Section 77 of the Railways Act necessary and given? (3) Are plaintiffs entitled to sue? and (4) What sum is due?'
4. The learned Small Cause Court Judge came to the conclusion that a notice under Section 77 of the Railways Act was not required, because it was not at all established that the consignment was lost or destroyed but, on the other hand, the plaintiff had stated on oath that the consignment was lying on the border. On the question of limitation the learned judge was of the view that, in the circumstances the starting point of limitation for calculating the one year period under Article 31 of the Limitation Act could not be a short period after the date when the goods were actually delivered for despatch to the Indian Railway at Shahzadnagar, in the Rampur district. The learned Small Cause Court Judge has given a history of what happened to the consignment and has come to the view that the words 'ought to be delivered' in Article 31 of the Limitation Act could, in the circumstances of this case, be extended to its last limit and should not be confined to taking into consideration only the normal period of transit.
5. In this revision the conclusions of the Small Cause Court Judge are attacked. We will deal first with the question whether a notice under Section 77 of the Railways Act was necessary. That section runs as follows :
''77. Notification of claims to refunds of overcharges and to compensation for losses. --A person shall not be entitled to a refund of an overcharge 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 me 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.'
6. It will be noticed that that section is attracted when compensation for loss, destruction or deterioration of goods delivered to be carried is claimed. There is no question of destruction or deterioration here and the question is whether loss to the Railway has been established in this case so as to attract the section. We have already stated that the plaintiff did not allege loss at all but alleged that the goods had been detained at the frontier station, and this case of the plaintiff has been accepted by the learned Small Cause Court Judge.
We may point out that there is absolutely no admissible evidence tendered on behalf of the defendant from which it could be concluded that the goods were actually forwarded onward after they had reached Abhor within the Indian territory and were lost to the Railway. There is only a telegram intimating that they had been so forwarded; though the telegram is from the defendant, it does not establish that in point of fact the goods were even forwarded.
All that can be said about the telegram is that an assertion was made by the Railway that the goods had been forwarded from Abhor. No proof was given that the assertion was a fact. In the circumstances, since the claim of the plaintiff was notbased on the allegation that the goods had been lost and also because there is no proof whatsoever of loss., this case is not one which will fall under Section 77 of the Indian Railways Act and so in our opinion, the learned Small Cause Court Judge rightly concluded that the want of notice under the aforesaid section did not bar the suit.
7. The next contention related to the plea oflimitation. It was urged that the goods had beengiven, for despatch on the 15th August 1948 and, inthe ordinary course of things, the goods ought tohave been delivered within a small space or timetherefrom. The relevant Article of the Indian Limitation Act applicable is Article 31 which is as follows:
The First Schedule.
Description of suit.
Period of limitation.
Time from which period begins torun.
31. Against a carrier for compensationfor non-delivery of, or delayin delivering goods.
When the goods ought to bedelivered.'
8. The words 'ought to be delivered' must necessarily mean 'ought to be delivered' after taking into consideration all the circumstances of the case. The expression 'ought to be delivered' does not mean that only that amount of time is allowable which would strictly be needed for purposes of moving the goods from the place of despatch to the place of destination. The words 'ought to be delivered' mean that one must see all the circumstances in order that one might conclude what would be a reasonable date of delivery. In this case, we find that the goods were detained by the Indian Railway at Abhor because some custom duty was considered to be payable by the plaintiff.
Until the question of duty was out of way, the Railway could not move the goods and until the Railway moved the goods from Abhor, the goods could not reach the destination and could not be delivered at Hyderabad Sind. Under the circumstances, the most that the plaintiff could expect was that the goods would be available for delivery within a reasonable time of the date on which they are alleged to have been given to the foreign Railway at Abhor for further carriage on to Hyderabad Sind. According to the telegram, which is the defendant's own documents, this did not happen before the 22nd July 1949, although intimation that the goods were about to be despatched from Abhor was received on the 4th July 1949. Therefore, if the Railway's case was correct, the goods would have reached destination, say within a week of the 22nd July 1949 at the earliest. It was, therefore, reasonable for the plaintiff to conclude that the goods ought to have been delivered within a short time of the 22nd July 1949 in the circumstances. This suit was filed on the 23rd February 1950, which is well within a period of one year from the date when delivery ought to have taken place, according to the representation of the Railway made to the plaintiff in the correspondence. In the circumstances, we are of the view that the suit was within limitation prescribed by Article 31 of the Limitation Act. No other point was argued before us.
9. Accordingly this revision fails and is dismissed with costs.