1. The facts of the case from which this application in revision has arisen are given clearly in the judgment of the trial Court. The learned Judge of the Small Cause Court, has dismissed the plaintiff's suit on the issue of limitation holding that Article 31 Limitation Act applied to the case. It is contended by Mr. Chaturvedi in support of the present application that Article 31, Limitation Act, does not apply because the plaintiff's suit was not one 'for compensation for non-delivery of or delay in the delivery of the goods,' but was clearly one as set forth in para. 7 of the plaint for wrongful conversion' of the goods, to which Article 48 or Article 49, Limitation Act, could be applied so that the period of limitation would be three years and not one.
2. The trial Court has relied on three decisions, but the two Allahabad cases are really by no means parallel to the present one. The case G.I.P. Ry. v. Radhakisan 1926 Nag. 57 is no doubt an authority for his decision. It was held there that a suit against a carrier for compensation for non-delivery of goods is governed by Article 31, whether the non-delivery is due to conversion or to any other reason. There are passages in the judgment which suggest any action which may be brought against a carrier will be governed by Article 31, Limitation Act, on the principle of 'genralia specialibus non derogant.' The plaint in the present suit however is worded as if the plaintiff was suing for damages for a tortious pet, and that, so far as I am able to judge from the review of the facts given by the trial Court, was his real purpose and was not merely an ingenious framing of his plea. The distinction between 'conversion' and non-delivery of goods, is discussed at considerable length in Haryana Cotton Mills Co. Ltd. v. B.B. & C.I. Ry. Co. 1927 Lah. 471 and again in Sundarji Shivji v. Secy. of State 1934 Pat. 507. In this latter decision it has been held that in a suit for damages for conversion Article 48, Limitation Act, applies.
3. The Judge of the trial Court has considered the matter and has given a decision which is supported by authority. But it appears to me that the authority on the other side is to be preferred, and that as the present case is not one that could be called 'A suit against a carrier for compensation for non-delivery of goods,' but was definitely one for damages for tort Article 31 has been wrongly applied, and the plaintiff has therefore been unjustly deprived of an opportunity of proving his case on the merits. I therefore allow the application with costs, if any, set aside the decree and order of the trial Court, and direct that the suit be re-admitted on its original number and decided on the merits according to law.