1. The petitioner is the plaintiff, a merchant of Bezwada, who sued the Nizam State Railway of Hyderabad for the recovery of Rs. 305 being the value of some machinery he consigned: on 21st August 1944 from Bezwada to the Circar Engineering Company, Lahore. It is common ground that the goods had to be carried over three railways. Plaintiff received from the consignee a letter Ex. p-1 dated 7th November 1944 to the effect that the goods had not reached him. He sent a notice to the railway company on 8th February 1945 complaining that the goods had not been delivered and asking for payment of their value. To this letter he was not vouchsafed any reply. He then, after going through the necessary formalities, filed this suit on 31st October 1945. The learned Subordinate Judge dismissed it as time-barred under Article 31, Limitation Act which prescribes as the period of limitation for a suit against a carrier for compensation, non-delivery or delay in delivering goods one year from the date 'when the goods ought to be delivered.' The learned Subordinate Judge attached importance to the evidence of a parcels clerk of the Bezwada railway station who deposed that it would normally take one week by passenger train and 15 days by goods train for a consignment to reach Lahore. On this basis the Subordinate Judge held that the suit was filed out of time. The view taken by him is obviously incorrect and cannot be supported.
2. Two limitation articles which can govern this case are Article 30 which prescribes for suits against a carrier for compensation for losing or injuring goods one year from the date when the loss or injury occurred. In M. & S. M. Rly, Co, Ltd. v. Bhimappa, 17 I. C. 419 : 23 M. L. J. 511, a Bench of this Court observed as regards Article 30 that the burden of proving when the goods were lost is on the railway company and that in that case they had not proved when they were lost and there was nothing in the evidence to show that they were lost more than one year before the institution of the suit. Those observations are relevant and pertinent to the facts of the present suit. As regards Article 31, the difficulty it raises is that it fixes no specific time for the delivery of the goods, the ordinary rule being that goods have to be delivered by a carrier within a reasonable time. What ia a reasonable time has to depend on the facts of each case In Jugal Kishore v. G.I.P. Rly. Co. : AIR1923All22 , the plaintiff consigned goods on 28th August 1918 and filed his suit for damages on 31st March 1920. For more than a year plaintiff had been put off by various statements on the part of the railway companies to the effect that the matter was being enquired into. It was held that the suit was in time and not barred, whether Article 80 or Article 81 was considered applicable to the facts. That suit was filed about a year and eight months after the consignment, whereas the present suit was filed less than one year and three months after the consignment. The learned Subordinate Judge, relied on Palaniahami Nadar v. Governor-General of India in Council : AIR1946Mad133 for the position that time would begin to run under Article 81 from the date of a definite refusal or declaration or inability by the railway company to deliver the lost goods. But that construction of Article 31 has been obviously misapplied by the learned Subordinate Judge to the facts of this suit. In the cases in which that construction was given, it merely enlarged the period within which a suit should be brought from the date on which, after a protracted correspondence with the railway company, they expressed inability to give delivery of the goods for some reason or other. In the present case, the railway company did not even accord the plaintiff the courtesy of a reply to his original letter of complaint. In fact the decision in Palanichami Nadar v. Governor-General of India in Council : AIR1946Mad133 gives very strong support, following as it does, Jugal Kishore v. G. I. P. Rly., : AIR1923All22 and M. & S. M. Rly. Ltd. v. Bhimappa, 17 I. C. 419 ; 23 M. L. J. 511 to the present case of the plaintiff. It has also to be remembered that in 1944 railways were afflicted by war conditions and congestion in transit, and two months and 16 days could not be, in any event, considered to be an unreasonable period within which a railway company ought to have delivered the goods. When the plaintiff received the letter Ex, P-1 from his consignee in Lahore that the goods bad not yet reached there, he can scarcely be blamed for giving a little further time before making his complaint to the railway company. In any event, the suit was filed within a year of EX. P-1. There is no substance in this technical plea of limitation taken on behalf of the railway. Nor can I see any substance in another technical plea to the effect that the railway company has not been correctly impleaded in the suit, The defendant was originally impleaded as the General Manager of the Nizam State Railway and this, on objection being taken by the defendant, was amended to Hyderabad State represented by the General Manager of the Nizam State Railway. Even this amended description of the defendant is now objected to by the learned advocate for the respondent railway on grounds which I am unable to appreciate. It is not disputed, as the learned Subordinate Judge has also found, that the value of the consignment of machinery is Rs. 300.
3. The petition ia allowed with costs and the suit decreed as prayed for against the defendant-railway also with full costs.