1. This appeal is by the Port Trust of Madras. The Good Year India Ltd. at Calcutta consigned to its branch office at Madras 614 packages of tyres, tubes and accessories under two bills of lading M 23 and M 24 both dated 31-1-1962 covering 443 and 171 packages respectively, by the vessel 'Jag Ganga' owned by the first defendant company, the Great Eastern Shipping Co. The vessel arrived at Madras on 6-2-1962. The first plaintiff company applied for delivery, but obtained delivery of only 594 packages. The remaining 20 packages were not delivered. The first plaintiff made an enquiry. The Assistant Traffic Manager of the second defendant Port Trust issued a B Certificate on 30-10-1962. Ex. A.4, stating that 20 packages had not been landed. The first plaintiff, therefore, made a claim on the shipping company. By their letter dated 22-12-1962, the shipping company repudiated the claim on the ground that the Port Trust had granted a receipt to them for having received 610 packages with the mark 'Good Year'. Thus they admitted their own liability to pay for 4 packages and said that in respect of 16 packages, it was the Port Trust which was liable. On that footing the first plaintiff issued a notice to the Port Trust, but the Port Trust did not give any satisfactory reply. The Second plaintiff who is the Insurance company, paid the claim of Rs. 8,653 to the first plaintiff and sought to recover the amount from the defendants-the value of 4 packages from the first defendant and the value of 16 packages from the second defendant.
2. The first defendant in their written statement admitted their liability for the 4 packages and pleaded that it was the Port Trust who were responsible for the value of the 16 packages. The Port Trust in their written statement pleaded that they had received only 594 packages in all from the shipping company, that they handed over those 594 packages to the first plaintiff and that consequently they were not liable to pay anything to the plaintiffs.
3. The learned Judge who tried the suit found that the Port Trust had passed the receipts. Exs. B1. B2 and B3, in the tally sheets of the shipping company for having received 610 packages in all. On that footing he gave a decree against the first defendant shipping company for the value of four packages and against the Port Trust for the value of 16 packages. Aggrieved by this, the Port Trust has preferred this appeal.
4. It is obvious that though 614 packages were booked at Calcutta in the ship only 594 packages were delivered to the first plaintiff. There was thus a short delivery of 20 packages. The first defendant would plead that they delivered 610 packages to the second defendant. They thus admit their liability for the value of 4 packages to the first plaintiff. The second defendant would on the other hand, deny that they received 610 packages and would say they received only 594 packages. The first question which therefore, arises is whether the second defendant received 610 packages from the first defendant or only 594 packages. The tally sheets Exs. B1, B2 and B3, which have been signed by the officer of the Port Trust and the Agents of the shipping company show that 610 packages with the concerned mark were delivered by the Steamer Agents to the Port Trust. They are contemporaneous records and really clinch the matter. It is difficult to accept the plea of the Port Trust that only 594 packages were received. They examined on their side the Shed Master one Kamalanathan, as D.W. 1. His evidence read carefully shows that 610 packages were received by the Port Trust. His evidence is to the following effect. 443 packages should bear the mark "Good Year Madras", and 171 packages should bear the mark 'Good Year Bangalore via Madras'. The marks were not found on all the packages. The mark 'Good Year Madras' was found only on 158 packages. The mark 'Good Year Bangalore via Madras' were found only on 25 packages. But at the time of the delivery the first plaintiff's agent was prepared to take delivery of 411 packages more thus making 594. But D.W. 1 also says that apart from the 25 and 158 packages there was the mark 'Good Year' on 427 packages, but the first plaintiff's agent took delivery of only 411 packages and the remaining 16 were delivered to Dunlop and Co. This evidence would mean that apart from 183 packages on which the marks were clear the mark "Good Year" was available on 427 packages though the additional word 'Madras' was missing. Though the word "Madras" was missing, the mark 'Good Year' was sufficient to identify them as the first plaintiff's goods. But the further evidence is that notwithstanding this circumstance the first plaintiff's agent was prepared to take delivery only on 411 packages and that is why the remaining 16 packages were delivered to Dunlop and Co. Now, we may straightway remark that this version has been put forth only at the time of the trial and was not pleaded at any earlier stage of the case. Therefore, no credence can be given to this version that though the marks were available on 427 packages, the first plaintiff's agent took delivery only of 411 packages. As a matter of probability also it is likely that the first plaintiff's agent refused to take delivery of the remaining 16 packages though they contained the mark. But, at the same time, D.W. 1's evidence shows that the Port Trust received all the 610 packages, namely 25 package with the mark 'Good Year Bangalore via Madras' and 158 packages with the mark 'Good Year Madras" and 427 packages with the mark "Good Year" all totaling up 610. This is in conformity with the tally sheets, Exs. B1, B2 and B3. Therefore, the evidence of D.W. 1, far from supporting the case in the written statement, goes to confirm the calculation in the tally sheets, according to which 610 packages were received by the Port Trust from the steamer agents.
5. Sri R. G. Rajan submits that even so, the Port Trust would not be liable directly to the first plaintiff company. The argument is that on the evidence of D.W. 1, the remaining 16 packages were delivered to Dunlop and Co., who were also consignees in the steamer, and that so far as the Port Trust and Steamer Agents were concerned, the Port Trust delivered all the goods which they had received from the Steamer agents by giving the goods to one or the other of the consignees. But we find that this plea was not put forth in the written statement of the second defendant. Their only plea was that they had received only 594 packages. There was no further plea that even if they had received 610 packages, they were under no obligation to the first defendant or to the first plaintiff. We, therefore, decline to entertain this plea.
6. The next point made by the learned counsel for the appellant is that the suit is time-barred so far as the Port Trust is concerned. This contention is based on Section 110 of the Madras Port Trust Act, 1905, according to which no suit shall be commenced against the Port trust after six months from the accrual of the cause of such suit. The contention is that the cause of action arose on 30-10-1962, when the B certificates was issued and that the suit should have been instituted within six months. Actually, the suit was originally laid only against the shipping company on 6-2-1963, but on 30-4-1963, an application was made to implead the Port Trust. That was ordered on 1-7-1963. The contention of Sri Rajan is that for the purpose of Section 22 of the Limitation Act. 1908, which was in force then the Port Trust was made a party only on 1-7-1963 by which time the period of six months from 30-10-1962 had expired. Section22(1) of the said Act runs thus-
"Where after the institution of a suit a new plaintiff or defendant is substituted or added, the suit shall as regards him, be deemed to have been instituted when he was so made a party." The learned counsel for the plaintiffs-respondents meets this argument by urging that for the purpose of Sec. 22, the Port Trust must be held to have been made a party even on 30-4-1963, the date on which they filed their application to implead the Port Trust. They rely on a decision of a Bench of this Court consisting of Kumaraswami Sastri and Reilly, JJ. in the South India Industrials Ltd. v. Mothey Narasimha Rao, 52 Mad LJ 199 = (AIR 1927 Mad 468). The facts were similar and it was held that for the purpose of Section22(1) what matters is the date of the application made by the plaintiff to implead a new party. The reasoning is thus stated:
"It appears to me to be obviously the right principle to adopt in the matter as otherwise though an application might be made in time as in this case, by the dilatoriness of the Court or by the maneuvers of the opposite party or by a mistaken decision of the Court which had to be put right on appeal or revision the order to which the party applying was entitled might not be made until the suit had become time barred and it would be unreasonable to leave the party who had applied in good time, at the mercy of such chances. It is contrary to one of the clear principles of the law of Limitation that a diligent party who has come to Court with his suit or his application within the period prescribed should be defeated because the Court for some reason cannot or does not give him his relief within the period. The heavy penalty for exceeding the arbitrary periods of limitation is to be counterbalanced by the assurance of safety when within time".
7. The position is this. The plaintiffs had necessarily to make an application under Order I. Rule 10, Civil P. C. to implead the Port Trust and all that they could do on their part was to be vigilant and file the application within the period of six months allowed by Section 110 of the Madras Port Trust Act. They had no control on what happened in the Court after the filing of the application and it would be unreasonable to construe Section22(1) as to defeat their right, even though they had been diligent and for some reason or other the Court could not pass the order within time. It would be a different matter if the plaintiffs could have straightway made the Port Trust a party without the intervention of the Court. But because they had necessarily to file an application justice requires that Section 22 of the Limitation Act, 1908 should be construed as meaning that the date of the application should be taken as the date when the new party was impleaded. This is what the learned Judges stated and we are in respectful agreement with them. It follows that the Port Trust was impleaded within time.
8. Sri R. G. Rajan has brought to our notice two subsequent decisions Thangavel Chetti v. Kuppu Bai, and Ramaprasad v.
Vijaykumar, . No doubt, they refer to the order of the Court permitting addition of a new party and they say with reference to that date that the suit was time barred because of Section 22 of the Limitation Act. But it could not have made any difference in those cases if the date of the application for adding the new party had been made as the relevant date for Section 22. That was why no such contention was advanced in those case and no such question was discussed at all. Hence, they cannot be treated as authorities at all on the question decided by the Bench in South India Industrials Ltd. v. Mothey Narasimha Rao, 52 Mad LJ 199 = (AIR 1927 Mad 468). Having explained the point, we shall refer briefly to these cases.
9. In the first defendant entered into an agreement on 17-4-1953 to sell a property to the plaintiff. But he sold the property to second defendant, who in turn sold it to the third defendant, who in turn sold it to the fourth and fifth defendants. The decision states that the order of the Court permitting addition of the third defendant was made on 2-8-1958 but that was more than three years from the date of the agreement and the suit was time-barred against the third defendant and consequently the fourth and the fifth defendants. Presumably, even the application to implead the third defendant was filed more than three years after the agreement and hence no argument was advanced that if the date of the application was taken as the criterion, the suit would not be time barred.
10. In , one Vijayakumar filed the suit to enforce a mortgage which had been executed in favor of his mother's mother Tara Bai, claiming to have been adopted by her to her husband. The adoption was found against and the suit was dismissed on that sole ground by the trial Judge. On appeal to the High Court, the plaintiff sought to add a new ground that if the adoption was not proved the heirs of Tara Bai would be his mother and his two sisters, but because the two aunts were not available to figure as co-plaintiffs he filed an application to implead his mother as a plaintiff and the aunts as pro forma defendants. This application was allowed by the High Court and a decree was granted in favor of the mother and her sisters without going into the question of adoption.
11. The mortgagee appealed to the Supreme Court. Sarkar, C. J. observed that the order of the High Court was sought to be sustained under Order 1, Rule10(1), Civil P. C. as substituting the correct parties and therefore not attracting the bar of limitation; but repelled the contention holding that the order could not be sustained under Order I, Rule10(1), Civil P. C., because some defendants were also added. Bachawat, J. for himself and Mudholkar, J. observed that the High Court had power to add the new parties under Order I, Rule10(2), Civil P. C., but, then it was too late. The application was made on 3-11-1958 and was ordered on 4-11-1958. It was observed in paragraph 20-
"It follows that as regards Mahabalkumari (the mother) Rajakumari and Premkumari (the aunts), the suit must be regarded as instituted on 4-11-1958. As far as they are concerned, the suit is barred by limitation.............."
It will be seen that even if 3-11-1958 had been taken as the relevant date the result would have been the same. The question considered was entirely different, namely, that by the addition of the new parties, it was not the old right or suit which was continued. The present question whether under Section 22 of the Limitation Act the new person is made a party on the date of the application to implead him or on the date of the order of the Court directing him to implead did not arise there.
12. The learned Judge has directed the entire costs of the plaintiffs to be borne by the Post Trust because they alone contested the claim of the plaintiffs and the first defendant did not contest the plaintiff's claim. We think however that the proper order to make in such a case is to direct the defendants to bear the costs of the plaintiffs in the proportion of 1:4 and we do so in exercise of our powers under Order XLI, Rule 33, Civil P. C. This direction is so far as the costs in the trial Court are concerned.
13. The appeal is dismissed with costs (Counsel's fee one set) which will be shared by the plaintiffs and the first defendant in the proportion of 3:1.
14. Appeal dismissed.