S. Barman, J.
1. The defendant is the appellant. The suit out of which this appeal arises was filed by the plaintiff against the Railway Administration for Rs. 1756/- for loss of 45 maunds, 12 seers of sugar in the circumstances hereinafter stated. The defence pleaded limitation which both the courts below rejected and decreed the suit.
2. The facts as relevant for deciding the point of limitation are these :
On September 12, 1957 the plaintiff indented from Sasumusa near Gorakhpur in North Bihar for delivery to the plaintiff at Cuttack 240 bags of sugar under R/R No 10835 Invoice No. 49 dated 12-9-1957 Con North Eastern Railway) Ext. A showing the weight of the goods consigned as 667 mds. 20 seers. It is said that the first unloading in respect of the consignment was on September 25, 1957. The entries in the unloading register (i.e. Full Unloading Tally Book) dated September 30, 1957 Ext. C show that part of the consignment was lost.
The plaintiffs case is that on October 7, 1957 at the time of delivery of the consignment out of 240 bags of sugar only 202 bags of sugar were delivered to the plaintiff in good condition and the remaining 38 bags of sugar were found torn and loose and the extent of damage/ shortage was stated to be 45 mds. 12 seers i.e. R. F. 60 mds. 6 srs. against one good bag sugar 2 mds. 31 seers (105 mds. 18 seers). Open delivery was granted on protest and shortage certificate showing the extent of shortage as 45 mds. 12 seers was granted under the signature, of Delivery Authority (Ext. B). The plaintiff filed the suit on October 5, 1958. The defence is limitation-
3. The relevant Article is Article 30 of the Indian Limitation Act. It reads as follows .-
Description of SuitPeriod of limitationTime from which Period begins to run.
30. Against a car-rier for cotn-peasation for losing or injuring goods.ONE YEARWhen the loss or injury occurs.
The defendant's point is that in this case; the starting point of limitation is September 30, 1957 when the actual shortage was found as recorded in the entries in the unloading register Ext. C, and, not on October 7, 1957 when the shortage certificate was granted. The plain-tiff's point is that the suit was tiled within time as the starting point of limitation was from the date of certificate of shortage, namely October 7, 1957.
4. The question now is: When does the period of limitation under Article 30 begin to run against the defendant? The answer in Col. 3 of Article 30 is that time from which period begins to run is when the loss or injury occurs. The burden is upon the defendant, who seeks to non-suit the plaintiff on the/ ground of limitation, to establish that the loss occurred beyond one year from the date of suit. This proposition is self-evident.
5. Then the question arises: Has the: defendant, on; whom the burden rests to prove that the loss occurred beyond the prescribed period, established the fact inthis case? The suit was filed on December 5, 1958. The relevant entri&s; in the unloading register Ext. C dated September 30, 1957 are these :
XX XX XX XX XX ' 38. Under Inv. Recd. 49 of 1219 R/F 60-S Sr.one good and wg. R/F mds. 2-31 srs. C/R. cotR/F NU w/6 stack CTC Witnessed.
NK W/6 RPF CTC
From these entries the actual shortage was proved on Sept. 30, 1957. The goods clerk D. W. 1 deposed that 129 bags were unloaded on September 30, 1957 under invoice No. 49. He proved the entry in the unloading register Ex. C. The witness further said that invoice No. 49, 38 bags were unloaded under cut and loose condition; the weight was 60 mds 6 seers; against one good bag 2 mds 31 srs. Thus the unloading register Ext. C read with the evidence of the goods clerk conclusively determines that the loss was proved on September 30, 1957. There is thus clear evidence which proved that by or before September 30, 1957 the goods were lost or injured with consequential shortage.
Their Lordships of the Supreme Court decided this question on limitation in Union of India v. Amar Singh, AIR 1960 SC 233 where it was held that on the question of limitation under Article 30 the burden is upon the defendant Railway who seeks to non-suit the plaintiff on the ground of limitation to establish that that the loss occurred beyond one year from the date of the suit. In that particular case it was found that it had not been established by the Railway that the goods were lost beyond the period of limitation and accordingly the suit was found as having been filed within time. According to 3rd column the starting point will be the date when the loss or injury of the goods occurs.
Now when goods had been consigned by the consignor he would not be in a position to know the precise date on which the loss or injury has occurred. It is not a case where no evidence has been adduced on behalf of the railway to show that the loss has in fact occurred more than one year before the suit was instituted. Indeed the actual loss must have occurred before September 30, 1957, in any event by September 30, 1957 as the entry in the unloading Register Ext. C, shows the loss had already occurred and it is from this point of time that the period of limitation must be computed.
On this point several decisions were cited by bath sides which were all decided on the facts of each case. In all these, however, the courts have consistently followed that limitation must run from the time when the defendant railway proved that the loss had occurred.
6. The Courts below have apparently overlooked this aspect of legal position. The learned trial Court foundthus :
'A suit by a consignor against a railway Company far compensation for losing or injuring goods is governed by Article 30 of the Limitation Act. The limitation is one year. The time begins to run from the date when the goods should have been delivered. In this case the plaintiffs took delivery of the goods on 7-10-57. According to Sub-section 2 of Section 15 of Limitation Act, the plaintiffs are entitled to deduct the period of two months which they have given to Govt. before the institution of thissuit. The plaintiffs have instituted the present suit on 1542-58. Therefore the suit is within the period of limitation.'
The learned trial court is clearly wrong in his reading of Article 30 in that he is under misconception that time begins to run from the date when the goods should have been delivered whereas according to the 3rd Column of Article 30 time from which period limitation begins to run is when the loss or injury occurs.
In appeal the learned lower appellate Court also took a wrong view of the law. Ordinarily the attention of the learned lower appellate Court was not drawn to the correct position in law as expressed by the Supreme Court in their recent decisions AIR 1960 SC 233; Jetmull BhojraJ v. Darjeeling Himalayan Rly. Co. Ltd., AIR 1952 SC 1879.
7. It is thus clear that the decision of the courts below is contrary to law. On the authorities cited before me and on the facts and circumstances of the case I am of opinion that the suit is barred by limitation. In this view of the case the decision of the courts belowis set aside. The plaintiff's suit is dismissed as barredby limitation. This appeal is allowed with costs throughout.