1. This is a Letters Patent appeal from a decision of Tare J. By that decision the learned Single Judge reversing the judgments of the Courts below remitted the plaintiff-respondent's suit praying for a decree for Rs. 484/11/3 against the appellant for further trial.
2. Briefly stated the plaintiff's case was that eight bales of cloth were consigned to him by Messrs Bachharaj Amolakchand of Nagpur from Nagpur to Itarsi on 3rd January 1947; that on 18th January 1947 seven of these bates were delivered but one was not delivered as it was said to have been stolen; that subsequently a case of theft in respect of the bale was registered against one Dwarkaprasad who was tried and convicted for the offence of theft; that the baie was also recovered from Dwarkaprasad and during the course of the criminal trial was handed over by the Court to the A. D. C. I., Bhopal; and that it was in the month of November 1952 that the plaintiff came to know for the first time thai the bale had been delivered to the A. D. C. I., Bhopal.
Tile further averment of the plaintiff was that after the receipt of the bale by the A.D.C.I., Bhopal, the railway administration became a trustee of the property belonging to the plaintiff and that, therefore the railway authorities were bound' to return the bale or its price. The plantiff's prayer was that a decree for Rs. 484/11/3 be passed against the defendant, and, if the bale had been sold at a higher price, a decree for the amount of that higher price be passed against the defendant. The suit was instituted on 3rd November 1954.
3. The learned Civil Judge, Hoshangabad, who tried the suit dismissed it holding that it was barred by time under Article 31 of the Limitation Act. He relied on a decision of the Nagpur J. C's Court to which reference will be made shortly. In appeal, the learned Additional District Judge, Hoshangabad, upheld the decision of the trial Court. In second appeal, our learned brother Tare J. took the view that the cause of action for the suit was not non-delivery of the bale hut ihe refusal of the railway authorities to deliver the bale to the plaintiff after it had been received by them from the criminal Court; that this was another cause of action arising in November, 1952; and that consequently the suit was governed not by Article 31 but by Article 48 of the Limitation Act. He found support for his view in the decision of Patna High Court in Sundarji Shivji v. Secy. of State, ILR 13 Pat 752: (AIR 1934 Pat 507), He further observed that the decisions in G. I. P. Ry. Co. v. Radhakisan Taikisan, AIR 1926 Nag 57 and Ramlal v. B.N. Ry. Co., Ltd., Calcutta, 31 Nag LR (Sup) 79 : (AIR 1936 Nag 21) were not in point. Accordingly he held that the plaintiff's suit was within time and made an order of remand.
4. At the outset learned counsel appearing for the respondent raised the preliminary objection that this appeal is incompetent as the order of the learned Single Judge is not a 'judgment' as used in Clause 10 of the Letters Patent' This objection cannot prevail in view of the clear decision of a Full Bench of this Court in Manohar Damodar v. Baliram Ganpat, ILR (1952) Nag 471 : (AIR 1952 Nag 357) (FB). In that case the Full Bench has held that when a remand order by a Single Judge sitting in second appeal merely remits an issue for trial or orders some evidence to be taken but does not decide the controversy either wholly or partially, then the remand order is not a judgment within the meaning of Clause 10 of the Letters Patent; but where the Court sets aside a decree making an order on the merits of the controversy and remits the case for trial according to its decision, the order is a judgment Hidayatullah J., with whom Sinha C. J. agreed, observed that the term ''judgment' as used in Clause 10, means a decision in an action whether final, preliminary or interlocutory which decides either wholly or partially, but conclusively in so far as the Court is concerned, the controversy which is the subject-matter of the action. Now, here, the trial Court dismissed the plaintiff's suit on the ground that it was barred by time and passed a decree of dismissal. It did not go into the merits of the plaintiff's claim. That decree of dismissal was set aside by the learned Single Judge. The remand order made by the learned Single Judge is, therefore, not an interlocutory decision made for the purpose of ascertaining some matter necessary to decide finally and conclusively the controversy so far as this Court was concerned in second appeal. The merits of the controversy regarding limitation were finally decided and the decree of the Court below dismissing the plaintiff's suit was set aside. That being so, the decision of the learned Single Judge is clearly a 'judgment' within the meaning of Clause 10 of the Letters Patent.
5. Turning now to the merits of the appeal, we are clearly of the opinion that the plaintiff's suit is governed by Article 31 of the Limitation Act. The plaintiff's suit was essentially and in substance one for compensation for non-delivery of one bale by the carrier, namely, the appellant-railway. The fact that the bale could not be delivered because it had been stolen and that subsequently it was traced and handed over by the criminal Court to the railway authorities does not make the suit any the less a suit for compensation against the carrier for non-delivery of the goods. The position of the railway as carrier ot the bale did not cease when the bale was stolen; it subsisted till the last and even after the handing over of the bale by the criminal Court to them. After receiving the bale from the criminal Court, the possession of the railway was that of a carrier and not of a person who had acquired the bate as a lost property or as a stolen misappropriated property; nor did the railway acquire the possession of the property by conversion or by wrongfully taking it from the plaintiff. Article 48 has, therefore, no applicability. The fallacy in the reasoning of the learned Single Judge lies in the assumption that failure to deliver goods itself furnishes two causes of action, one relevant to Article 31 and the other relevant to Article 48. This is not correct. The non-delivery is the consequence of loss, theft, destruction, misdelivery or conversion. By itself it does not furnish a cause of action distinct from a cause of action for loss, theft, destruction, conversion etc. That being so, Article 31 applies to every case of non-delivery by a carrier of goods entrusted to it for carriage, irrespective of the cause of non-delivery. The non-delivery on the part of the railway authorities may be due to conversion; yet Article 31 will apply on the principle of generalia specialibus non derogant as it is a special article dealing with claims against a carrier for compensation for non-delivery of goods. If, as we think, even after the receipt of the Bale from the criminal Court, the appellant-railway's position continued to be that of a carder in respect of that bale, then Article 31 must apply-That article applies to all cases of claims for nondelivery of goods irrespective of the question whether the suit is laid in contract or tort. The question of limitation arising in this appeal is fully covered by the decisions in AIR 1926 Nag 57, 311 Nag LR (Sup) 79 ; (AIR 1936 Nag 21).
In both these cases it has been distinctly held that Article 31 applies to a claim against a carrier for compensation for non-delivery of goods irrespective qf whether the suit was laid in contract or in tort, and whether the nondelivery is due to conversion or any other reason; and that the operation of general Articles 48 and 49 would be excluded by the specific article 31 dealing with suits against carriers as such on the principle ot generalia specialibus non derogant. All the High Courts are agreed 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 any other reason. The distinction drawn by the learned Single Judge between the present case and the two cases of the Court noted above is untenable. As pointed out earlier, the delivery of the bale by the criminal Court to the railway authorities and the failure of the railway to deliver the bale to the plaintiff thereafter did not furnish any new cause of action to the plaintiff. The decision of the Patna High Court relied on by the learned Single Judge is dearly distinguishable.
In that case what happened was that the plaintiff through some colliery proprietors had ordered certain consignments of coal to be sent to his customers in different parts of the country-One consignment intended for Sikri Brothers of Atampur was sent to a wrong destination. The plaintiff, therefore, made efforts to arrange with another customer at the place where the consignment had been sent to take delivery of the coal and offered to the railway company to take the coal provided the company agreed to remit the charges of wharfage. This was not agreed to by the company. The result was that the railway company was in the position of having at one of their stations a consignment of coal tor which wharfage and freight had not been paid. The railway company then demanded from tbe consignor colliery proprietor the amount of wharfage and freight and informed him that the consignment had been said under Section 55 of the Railways Act. The colliery proprietor settled the claim. The plaintiff thereafter sued the railway company claiming damages which were made up ot the cost of the coal at the pithead, the amount of normal profit, and the amount which he had to pay to the colliery proprietor by way of reimbursement. If was held that the suit fell within Article 48.
It will be seen from the facts narrated above that in the Patna case the suit against the railway was not qua carriers and there was no question of any non-delivery. The railway authorities were wining to deliver the consignment but the plaintiff was not prepared to take delivery after paying the wharfage and freight claimed by the railway company. The suit was thus against a tortfeasor for damages for conversion by reason of wrongful sale under section 55 of the Railways Act and wag not one against a carrier for compensation for nondelivery.
6. In our opinion the plaintiff's suit is clearly governed by Article 31, Limitation Act, and was rightly held to be barred by time by the trial judge and the Additional District Judge, Hoshangabad. There was no dispute in any Court or even before us as regards the starting point of limitation under Article 31. It may be noted that the Second appeal preferred by the defendant was not competent under Section 102 of the Code of Civil Procedure. The plaintiff had only claimed a decree for Rs. 484/11/3 and the suit was of the nature cognizable by a Court of Small Causes. The plaintiff's suit must, therefore, be dismissed on the ground that it is barred by time. At the same time, we must observe that if the railway authorities did receive the bale from the criminal Court and later on sold it away, then the railway authorities should leaving aside technicalities take a fair and equitable view of the matter and do something to satisfy the plaintiff's claim.
7. For all these reasons, the decision of the learned Single Judge is set aside and the plaintiff's suit is dismissed with costs throughout.