1. This is a revision against the decision of the Judge, Small Cause Court, at Agra, by which the applicant's suit against the Secretary of State for India in Council and the Madras and Southern Mahratta Railway was dismissed with two sets of costs, one set to each of the defendants. The suit was dismissed on the ground of limitation without going into other questions which were concerned with the facts. The' learned Judge applied Article 31, Schedule 1, Limitation Act. Mr. Shambhu Prasad who argued the case very well for the applicant urged that when the goods arrived at Bangalore the plaintiff asked the Railway Administration to keep the goods till his further instructions as the consignee had refused to take delivery of the same. He urges that because the Railway Administration agreed to this course of action they ceased to be carriers and became bailees and therefore Article 31 did not apply to them. This is a fallacious argument and is based on a statement of law to be found in text books in which it is said that after the goods have reached and the carrier has kept the goods because there has been no delivery, their liability becomes less, viz., from the liability of a carrier to the liability of a bailee, during the period the goods are in the carrier's possession. This statement of the law is in favour of the carrier and has nothing to do with the rule of limitation. All that the text books say is that by 'delaying taking delivery of goods the liability of the carrier as a carrier cannot be continued for an indefinite period, and that for the period following the arrival of the goods, if there be no delivery, the carrier's liability is that of a bailee and not that of a carrier.
2. No authority has been cited before me by Mr. Shambhu Prasad that after the goods have arrived the carrier becomes the bailee for the purpose of limitation and that Article 48 or Article 49, Schedule 1, Limitation Act could apply. I hold with the Court below that Article 31 applies and the suit was time-barred. The learned Counsel for the applicant then argued that his suit was amply within time because of certain acknowledgments alleged to have been made by the Railway Administration from time to time. No such acknowledgments were pleaded in the plaint as required by the law. Order 7, Schedule 1, Civil P.C., Rule 6 lays down that when a suit is instituted after the expiration of the period prescribed by law of limitation the plaint shall show the ground upon which exemption from such law is claimed. A plaint is liable to be rejected if the statement of facts made in it, it appears to be barred by limitation. (See Rule 11, Order 8, Schedule 1, Civil P.C). In the circumstances the Court below was entitled to decide the case on the facts mentioned in plaint. It does not appear that in the Court below any argument was based on the acknowledgments. In this Court I asked Mr. Shambhu Prasad to read out to me any document by which an acknowledgment of liability was made by the Railway Administration or the Secretary of State, but he was unable to point out any such document. A document shown did not amount to acknowledgment.
3. The next point urged was that even if the suit was time-barred against the Railway Administration it was not barred against the Secretary of State. This is a fallacious argument. The Secretary of State has been impleaded only as the owner of the railway concern and not in any other capacity. The argument that the Government is not a 'common carrier' within the meaning of the Carriers Act (Act 3 of 1865) does not make the Secretary of 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 'common carrier.' Then there is no warrant for the contendon that the word 'carrier' in Article 31 has the same meaning as the words 'common carrier' as defined in the Carriers Act. Lastly it was urged that the Court below should not have decreed separate costs against two defendants. The plaintiff did not make the two parties defendants to his suit and it does not lie in his mouth to say that he is not liable for separate costs. The object of making the two parties defendants must have been to hold that if one party was not liable the other was liable. Such an argument was actually advanced before me as noticed by me in this judgment. In the circumstances the two sets of costs were properly awarded in the Court below and must be awarded in this Court also.
4. In the result the application fails and is hereby dismissed with separate costs for each set of respondents.