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Union of India (Uoi) Represented by the General Manager, Southern Rly., Madras Vs. A.M. Abdul Wasigh and Brother and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 634 of 1958
Judge
Reported inAIR1960Ker306
ActsProvincial Small Cause Courts Act, 1887 - Sections 25; Code of Civil Procedure (CPC) , 1908 - Sections 115; Railways Act, 1890 - Sections 77; Limitation Act, 1908 - Schedule - Article 31
AppellantUnion of India (Uoi) Represented by the General Manager, Southern Rly., Madras
RespondentA.M. Abdul Wasigh and Brother and anr.
Appellant Advocate K.P. Pathrose, Adv.
Respondent Advocate T.L. Viswanatha Iyer, Adv.
DispositionRevision dismissed
Cases ReferredPalanichami Nadar v. Governor General of India
Excerpt:
.....by limitation - correspondence makes it clear that suit was instituted within a year from when goods ought to be delivered - held, suit not barred by limitation. - - ' 8. perhaps the best statement of the law is in bell and co. but instances which readily occur to the mind are cases in which the court which made the order had no jurisdiction, or in which the court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. if i am right in what i say, then it would appear that revising authority cannot interfere with the decision of a lower court on a point like limitation, unless the error is so gross that no..........carried by railway or to compensation for the loss, destruction or deterioration of animals or goods delivered to be so earned, unless his claim to the 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 delivery of the animals or goods for carriage by railway.'10. according to the plaintiffs a case of misdelivery as not a 'loss' within the meaning of that word as used in section 77, and the section as a result has no application to the case. there is a divergence of opinion as to the meaning to be attributed to the word 'loss' occurring in section 77. the cases on the subject are collected and discussed in the commentaries to section 77.in hari rao's indian railways act (3rd edition) and in.....
Judgment:
ORDER

1. This petition, by the Union of India, represented by the General Manager of the Southern Railway, is directed against the decision of the District Munsiff of Ottapalam in Small Cause Suit No. 36 of 1937. The Union of India the defendant in the suit was directed to pay the plaintiffs by way of damages a sum of Rs. 365.13 for the non-delivery of certain goods despatched by them through, the Southern Railway.

2. According to the defendant, the goods were, as a matter of fact, delivered to the consignee, and there was neither mistake nor misconduct on the part of the railway staff. Paragraph 7 of the written statement and issue No. 1 -- 'Whether the suit consignments were delivered to the proper consignee and whether there was any misconduct on the part of the Railway Staff -- deal with the said contention.

3. The fact that the goods were consigned to 'self' is clear from the Parcel Way Bills, produced in the case, Exts. A2 to A7. The lower court found that the goods were delivered not to the plaintiffs or to any person authorised by them, but to one Zahiullah who had no authority to receive them. The delivery was effected without any railway receipt being produced, and even the elementary precaution of obtaining an indemnity bond was not taken.

4. Section 25 of the Provincial Small Cause Courts Act, 1887, provides:

'The High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit.' The section invoked in the petition is not Section 25 of the Provincial Small Cause Courts Act, 1887, but section 115 of Code of Civil Procedure, 1908. There can be no doubt that Section 115 of the Civil Procedure Code has no application to the case. Section 7 of that Code specifically excludes the application of section 115.

5. Counsel for the petitioner submitted that we should deal with the petition as if the section invoked was Section 25 of the Provincial Small Cause Courts Act, 1887, and we propose to proceed on that basis. It is settled law that the powers of revision under Section 25 of the Provincial Small Cause Courts Act, 1887, are wider than those under section 115 of the Code of Civil Procedure, 1908. It has, however, to be remembered that the Act does not provide for any appeal either on facts or on law, and that the powers, under Section 25 should not be so construed as to give, the parties a right of appeal.

6. The scope and ambit of the revisional jurisdiction under Section 25 of the Provincial Small Cause Courts Act, 1887, has been discussed in many cases. In Sayad Mir Shah v. Amar Singh, 4 Pun LR 1903 p. 390, Chatterji, J., dealt with the matter as follows:

'In an appeal it is the right of the appellant to obtain an adjudication, and one in his favour, if his grounds are made out, irrespective of the question whether substantial justice is or is not thereby dispensed in the case. A point of law or procedure may in a particular case work a great hardship, but in an appeal the Court is bound to give effect to it without regard to the consequences. In cases of revision it is quite otherwise. No party has the right to obtain an adjudication, and it is entirely within the discretion of the court to interfere or not as it thinks fit. It will not interfere to perpetrate an injustice, but only to promote the ends of justice. Suppose a just claim is really barred by time but is erroneously held not to be so by the lower court, or a forfeiture clause under a contract, which would work great hardship in a particular instance, is erroneously held not to apply. In such a case, a court of appeal would be obliged to enforce the law, but, a court of revision would ordinarily refuse to act. This I take to be the essential difference between a revision and an appeal in a matter wherein the revisional jurisdiction is established.'

7. Another view is indicated in Mottai Reddy v. Thanappa Reddy ILR 37 Mad 385: (AIR 1951 Mad 635). In that case Sumdara Ayyar, J., said:

'I do not think that this Court as a Court of Revision has any power to consider justice apart from such justice as the law recognises, I believe there are some cases where Courts have gone to the extent contended for by Mr. Govindaraghava Ayyar, but, in the absence of any decision of this Court binding on me, I am not prepared to hold that I can refuse to interfere on the ground that moral, as opposed to legal justice is a ground for refusing, to interfere in revision. No doubt, mere errors of procedure or technical defects not affecting the legal justice of a case will not be encouraged by a Court of Revision.'

8. Perhaps the best statement of the Law is in Bell and Co. Ltd. v. Waman Hemraj, AIR 1938. Bom 223 and in Rajeshwar Viswanth v. Dash-rath Narayan, AIR 1943 Nag 117. In the former case Beaumont, C. J. said:

'In my opinion that section ought not to be construed as giving the parties a right of appeal on points of law. The objects of Section 25 is to enable the High Court to see that there has been no mis-carriage of justice, that the decision was given according to law. The Section does not enumerate the cases in which the Court may interfere in revision, as docs, Section 115, Civil P. C., and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the successful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at'

and in the latter case Bose, J. observed:

'As I see it the Court of revision is not there to set right errors of either law or fact in the lower court but merely to see whether there has been a fair and proper trial according to standards which obtain in courts of justice, ignoring petty errors in procedure and trivial technicalities, and to see whether a judicial mind could have arrived at the conclusion reached. All else seems to me to be foreign to a revision. Any other conclusion seems, to me either to slur all distinctions between revision and appeal or else to break down on a close analysis. If I am right in what I say, then it would appear that revising authority cannot interfere with the decision of a lower court on a point like limitation, unless the error is so gross that no judicial mind could have reached it, as for example, when a lower court refuses to fee bound by a decision of its own High Court or of the Privy Council, or refuses to follow a plainly worded section in an Act about which there could be no reasonable difference of judicial opinion.' The second of the two passages was quoted wife approval in Nagjee Purushottam and Co. Ltd. v. Chathukutty Ramputty, 1958 Ker LT 573: (AIR 1959 Kerala 356).

9. The first of the two contentions urged be-fore us by the petitioner is that the suit is bad for the lack of a notice under Section 77 of the Indian Railways Act, 1890, within the time stipulated therein. Section 77 reads as follows:

''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 earned, unless his claim to the 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 delivery of the animals or goods for carriage by railway.'

10. According to the plaintiffs a case of misdelivery as not a 'loss' within the meaning of that word as used in Section 77, and the section as a result has no application to the case. There is a divergence of opinion as to the meaning to be attributed to the word 'loss' occurring in Section 77. The cases on the subject are collected and discussed in the commentaries to Section 77.in Hari Rao's Indian Railways Act (3rd Edition) and in Sanjiva Rao's Indian Railways Act (3rd Edition, Vol. I).

11. The view that appeals to us is the view adopted in M. and S. M. Rly. Co. Ltd. v. Haridoss Banmali Doss, ILR 41 Mad 871: (AIR 1919 Mad 140), That was a case of misdelivery by a railway to a person who had no authority to receive the goods. The court held that Section 77 does apply to such a case. To the same effect as the statement of Krishnaswami Nayudu, J., in Ramalingam Chettiar v. Union of India, (1955) 1 Mad LJ 255:

'The loss may result in any manner but so long as the claimant does not receive the goods as per the Railway receipt it must be considered as loss and a notice is required. So long as the goods are not delivered to him, he should consider it as a loss. He will be entitled to commence a proceeding only after the issue of a notice under section 77.'

12. Two other decisions which hold that the word 'loss' in Section 77 includes loss arising from whatever cause are Martab Ali v. Union of India, AIR 1954 Bom 297 and Union of India v. Mitayagiri Pullappa, AIR 1958 Andh Pra 475. In the latter case the court said:

'On a true construction of Section 77 loss means loss to the owner by whatever means. There is no warrant for making a distinction between a claim for compensation on account of loss of goods by a Railway Company and a claim for compensation on the ground of non-delivery or mis-delivery.'

13. In Cbangamal v. B. N. W. Rly. Co., 6 Pun Re 1897 it was held that:

''A thing is not lost in the proper sense of the term if the bailee of it detains it wrongfully or wilfully or negligently delivers it to another.'

This decision came up for consideration in Hill Sawyers and Co. V. Secy, of State, AIR 1921 Lah 1. Scott-Smith, J., said:

'The word 'loss' in Chapter VII of the Indian Railways Act includes loss to the owner of goods made over to a railway administration which have been mis-delivered.'

14. The contention is not that a notice was not given but that the notice to the Chief Commercial Superintendent the proper authority entitled to receive the notice according to the petitioner was not within the six months provided in Section 77. Even on the assumption, however, that the earlier letters to the Station Master and the D. T. S. are not sufficient, we must hold that the petitioner is not entitled to succeed.

15. Section 77 is no doubt mentioned in Ext. D-3, the letter of the Chief Commercial Superintendent dated 26-8-1955. But the subsequent correspondence makes no mention of the section and the promises of enquiry and investigation made therein indicate that the said section was not being pressed into service. The suit was instituted on 8-2-1957. The statement even in Ext. B8 dated 10-5-1956 the last of the letters from the Chief Commercial Superintendent is not that the suit was barred under Section 77 but that the Chief Commercial Superintendent had been informed that the matters had been settled between the parties and Zahiullah, and that as a result 'no claim lies against the Railway.' In these circumstances we will certainly not be justified in saying that the lower court was wrong in not dismissing the suit on the ground that there was no proper compliance with Section 77 of the Indian Railways Act, 1890.

16. The second contention urged before us is that the suit is barred by limitation. There can be no doubt that the article applicable is Article 31, of the first schedule to the Indian Limitation Act, 1908, which provides a period of one year for suits 'against a carrier for compensation for nondelivery of, or delay in delivering, goods.' The time from which the period begins to run is from 'when the goods ought to be delivered.'

17. The contract of carriage does not stipulate any particular date. As pointed out by Chitaley:

'where no time is fixed for delivery, if the correspondence between the parties shows that the matter was being enquired into and that there was no refusal to deliver up to well within a year of the suit, this article cannot be pleaded as a bar, for, in such a case, it cannot be said that the suit was brought more than a year from the expiry of a reasonable time within which the goods should have been delivered.' (Limitation Act, Vol. 2, Page 1137).

In Jainarain v. Governor General of India, AIR 1951 Cal 462, Chakravartti, J., surveyed the case-law on the subject and said:

'The impressive array of authorities seems to me to establish beyond doubt that the time 'when the goods ought to be delivered' within the meaning of col. 3 of Article 31 is not the time when they should have been delivered in the normal course, at least in a case where there is no time fixed for a delivery, but the time when they ought to be delivered according to the subsequent promises by the Rly. which informs the parties that it is carrying on enquiries. If I may say so with respect, that seems to be the only reasonable way of construing the Article.'

18. In Governor General in Council v. Kasiram Marwari, AIR 1949 Pat 268, Ramaswami, J., said:

'The question 'when the goods ought to be delivered' is essentially a question of fact. We cannot recognise any universal or inflexible rule that time must begin to run from the expiry of the ordinary period of transit. If no particular date is specified for delivery, it must be determined as a matter of what is reasonable having regard to the circumstances of the contract and the conduct of the parties. In the present case there is evidence that the plaintiff had written to the Chief Commercial Manager who replied that the matter was being investigated. Ultimately, on 1-2-1947, the Chief Commercial Manager informed the plaintiff that the consignment was destroyed by mob violence. It is patent that the plaintiff filed the suit within one year from the defendant's refusal to deliver the consignment. In the circumstances of the case we are unable to hold that the plaintiff has brought the suit more than a year from the expiry of a reasonable time within which the goods should have been delivered.'

19. In Mutsaddi Lal v. Governor-General in Council, AIR 1952 All 897 (FB), the court said:

'When the railway administration on being approached for delivery holds out hope to the plaintiff that the goods would be delivered and that the matter was being inquired into, then the starting point of limitation under Article 31 cannot be said to be the date on which the goods should have reached the destination in the normal course. The phrase 'when the goods ought to be delivered' means the point of time at which the carrier undertakes to deliver the goods or the date when the carrier informs the consignee that it would be delivered or when the carrier communicates to the consignee its inability to deliver the goods on a reasonable date that may be fixed on a consideration of events subsequent to the handing over of the consignment to the carrier for carriage.'; and in Palanichami Nadar v. Governor General of India in Council, AIR 1946 Mad 133;'The volume of authority is definitely in favour of the view propounded on behalf of the petitioner. The construction placed upon Article 31 that time begins to run from after, a definite refusal or declaration of inability, to deliver by the responsible railway company has to be upheld.'

20. The correspondence in this case makes it quite clear that the suit was instituted well within a year from 'When the goods ought to be delivered.' It follows that we must hold that the lower court was not wrong in not dismissing the suit as barred by limitation.

21. In the light of what is stated above the revision petition has to be dismissed. We decideaccordingly. The petitioner will pay the costs ofthe respondents.


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