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Secretary of State Vs. Golabrai Paliram - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1937Cal298
AppellantSecretary of State
RespondentGolabrai Paliram
Cases ReferredAlamgir Footwear Co. v. Secretary of State
Excerpt:
- .....owned and controlled by the government, or whether they are not, that is to say, whether they are state railways or non-state railways, they are all in the same position, as regards their responsibility as carriers of goods. taking therefore a broad definition of 'carriers', we find it for example in wharton's law lexicon, one can scarcely doubt, that railways whether state-controlled or not, can quite accurately be described as carriers, even though for the purposes of the carriers act, they are not common carriers. it seems to me that it would be a misuse of language to say that railways which carry goods for reward are not carriers, even though it is quite accurate to say that for the purposes of the carriers act of 1865 and any amendment of that act they are not common carriers. in.....
Judgment:

Costello, J.

1. This is an appeal against a judgment and decree of Lord-Williams J. Two points, broadly speaking, ware put forward on behalf of the defendant-appellant and both of them were in the nature of a demurrer. The first has relation to the question of jurisdiction of this Court to entertain the suit at all, for that the defendant does not carry on business within the jurisdiction of this Court, and that the requirements with regard to the notice provided for by Section 77, Railways Act, (Act 9 of 1890) which has to be served by the plaintiff before making his claim, did not accurately describe the cause of action so as to bring the matter within the territorial jurisdiction of this Court. The other point was one of limitation. It is con. tended on behalf of the defendant-appellant that Article 30 of Schedule 1, Lim. Act, 1908 applied to the circumstances of this case. There is no doubt that if that contention is correct, and if Article 30 does apply to this case, then the plaintiff is unable to succeed, because it is quite clear that the suit would be barred by lapse of time.

2. The learned Judge came to the conclusion that the contention of the defendant as regards the point of limitation could not be sustained, and that the Article governing the facts of this matter is Article 115 of Schedule 1, Lim. Act of 1908. This matter has had a somewhat curious history with the result that today we are in effect sitting in appeal as regards a judgment delivered by Lort-Williams J. as long ago as 23rd May 1930. The judgment delivered by Lort-Williams J. on 23rd May 1930 was taken in appeal and came before She late Chief Justice of this Court Sir George Rankin and Pearson J. on 16th April 1931, and the Court of Appeal then held that the questions discussed before Lort-Williams J. were of such importance that they should not have been dealt with on a mere application to revoke leave granted under Clause 12 of the Letters Patent. The matter had originally come before Lort-Williams J. upon an application of that kind. The Court of Appeal remanded the matter to be dealt when the suit came on for trial in the ordinary course. Thus It came about that the points dealt with by the learned Judge in his judgment of 23rd May 1930 came again before the same Judge (as it happened), on 9th November 1936. On that date however, neither party availed himself of the opportunity of giving evidence as contemplated by the Court of Appeal, when they declined to adjudicate upon the matter in 1931. On 9th November 1936 therefore the position, to all intents and purposes, was precisely the same as when the matter originally came before Lort-Williams J. on 23rd May 1930; and so it is not surprising, in the circumstances that the learned Judge on 9th November 1936, said : 'I see no reason to alter the opinion which I have already given in my judgment, dated 23rd May 1930.' It follows, therefore, as I have already indicated that although in form this is an appeal against the judgment of the learned Judge dated 9th November 1936, in substance it is an appeal from the judgment of the learned Judge given on 23rd May 1930.

3. We have now only to consider the question of limitation, for, that was the only point determined by the learned Judge, and it is the only point which has been argued before us. All that we have to decide is whether or not the Secretary of State for India in Council can take advantage of the provisions of Article 30 of Schedule 1 to the Limitation Act, 1908 and avail himself of that provision as a plea in bar of the plaintiff's claim. The learned Judge came to the conclusion that Article 115 was the Article most appropriate to the facts of this case. He based his decision upon this, that it hardly could be intended that a railway administration or Government should be absolved from the onerous responsibilities of common carriers, and yet at the same time have the benefit) of the short period of limitation expressly provided by Article 30 for traders who are burthened by the law with such obligations. The learned Judge took the view that as the responsibility of the railway administration for loss of and damage to goods, is regulated by Section 72, Railways Act, 1890 which puts a railway company into the position of a bailee under Sections 151, 152 and 161, Contract Act of 1872, and the railway administration has not the liability of common carriers, it must have been intended by the Legislature that Articles 30 and 31 should not apply but should only be available to persons who are in the position of common carriers.

4. The learned Advocate-General has re-minded us of the well-known observations of Lord Esher with regard to the position of a Court which is being invited to express an opinion on the provisions of statutes or other enactments and it is argued that it is clearly not the function of the Court to make endeavours to get behind the precise language of an enactment for the purpose of ascertaining what might be presumed to be the intention of the Legislature at the time when the enactment was made. In the course of the argument, I quoted the words of Lord Bacon when he said that the Court has to jus dicere and not jus dare. We have to interpret the statute as we find it and not put a gloss upon it or read into it something which is in fact not there. The precise words of Article 30 are these:

Against a carrier for compensation for losing or injuring goods, the period described is one year from the date when the loss or injury occurs.

5. The language of Article 31 is this:

Against a carrier for compensation for non-delivery of, or delay in delivering goods, one year, when the goods ought to be delivered.

6. Lort-Williams J. was of opinion that word 'carrier' should be read as if it was exactly the same thing as the two words 'common carrier.' Mr. Mazumdar has invited us to say that that is the correct interpretation of the Article. In other words, it is contended on behalf the plaintiff respondent that we ought to place before the word 'carrier' the qualifying adjective 'common', so that the operation of both the Article (30 and 31) should be restricted to those cases in which the defendant is in law a common carrier. Mr. Mazumdar sought to fortify his argument by an historical survey of various statutes or Acts of the Legislature relating to railways, relating to limitation and relating to carriers. Put quite shortly, that part of Mr. Mazumdar's argument which is based on chronological and historical review of the enactments of the kind I have enumerated comes to this, that until the Carriers Act of 1865 came into existence there was no specific provision in the Limitation Act relating to suits against carriers, and it was only after 1865, actually in the year 1871, by the Limitation Act of that year that for the first time there came into existence a definite provision with regard to limitation in relation to suits of that character. That provision was contained in Articles 36 and 37 of the Schedule to the Act 9 of 1871. Subsequently those two Articles became Articles 30 and 31 of the Lim. Act of 1877. The other fact which Mr. Mazumdar thought of considerable importance for the purpose of his argument was that an amendment was made touching the question of limitation in an Act of the year 1899, Act 10 of that year which was described as an Act to amend the law relating to carriers and which in fact added a Section 10 to the original Carriers Act, 1865, and which, at the same time, by Section 3 of Act 10 of 1893 transferred Articles 30 and 31 of Schedule 1, Lim. Act, 1877 from part 5 to part 4, thereby reducing the period of limitation from two years as 'it was then to one year as it became from the year 1899 onwards. At the same time, Section 3 of Act, 10 of 1893 made a slight alteration, or rather made an addition to Article 31 by putting in the words 'non-delivery'.

7. From the circumstances I have just mentioned, Mr. Mazumdar asked us to draw the inference that the word 'carrier' as used in Articles 30 and 31 must be looked at in the light of the Carriers Act, 1865, Therefore it can only have application in the case of common carriers. It is quite clear that a railway company as regards its responsibility towards persons consigning goods is liable only to the extent provided for by Section 72, Railways Act 1890, which repealed the previous Act of 1879 which Act had contained a provision, that the Carriers Act of 1865 had no application to railways. Mr. Mazumdar however rests his argument ultimately and indeed fundamentally upon the fact that in Section 2, Carriers Act of 1865 there is a definition which seems to put the Government as a carrier outside the category of common carriers. That however, in my opinion, is of little importance and indeed of do importance at all because as Mr. Mazunadar agrees, railways whether they are owned and controlled by the Government, or whether they are not, that is to say, whether they are State railways or non-State railways, they are all in the same position, as regards their responsibility as carriers of goods. Taking therefore a broad definition of 'carriers', we find it for example in Wharton's Law Lexicon, one can scarcely doubt, that railways whether State-controlled or not, can quite accurately be described as carriers, even though for the purposes of the Carriers Act, they are not common carriers. It seems to me that it would be a misuse of language to say that railways which carry goods for reward are not carriers, even though it is quite accurate to say that for the purposes of the Carriers Act of 1865 and any amendment of that Act they are not common carriers. In my opinion, it would not be right that we should interpolate into Article 30 the qualifying restriction implied by the word 'common' as applied to carriers. There is a case, Mylappa Chettiar v. The British India Steam Navigation Co. Ltd. (1918) 5 AIR Mad 341, which is vary material to the pre-sent discussion. In that case the plaintiff had been the consignee of certain timber through defendant 1 which was a firm of carriers by sea. The timber was consigned under a bill of lading. Defendant 2 was a firm which had a monopoly of landing all the goods from ships belonging to defendant 1 but on receipt of separate charges from the consignee. It was held

(1) that there was a privity of contract between the consignee and the landing agent, defendant a; (2) that the case being one of continuous carriage of goods defendant 2 was a carrier though not a common carrier within the meaning of the Carriers Act of 1865; and (3) that the suit against both the defendants was governed by Article 31, Lim. Act.

8. This case is of importance for our purpose by reason of the second and the third points of the decision. Sir John Wallis, who was then the Chief Justice of the Madras High Court at p. 555 says:

The suit as against defendant 1 is barred under Article 31 according to the Full Bench ruling in Venkatasubba Row v. Asiatic Steam Navigation Co., Calcutta (1916) 3 AIR Mad 314....

9. Mr. Justice Kumaraswami Sastri says at p. 557:

There can be little doubt that defendant 2 company are carriers though not common carriers within the moaning of the Carriers Act of 1865. The word ' carrier ' in Its general sense means a person or company who undertakes to transport the goods of another person from one place to another for hire and defendant 2 falls within the definition.

10. Lower down on the same page the learned Judge observed:

If however defendant 2 company are carriers and I think they are, it is clear that Article 31, Limitation Act, would apply equally to them. It is not necessary for the purposes of Article 31 that they should be common carriers.

11. With that proposition I respectfully and entirely agree. I am supported in that view of the matter by two cases which ware decided in the High Court of Allahabad. Unfortunately they do not seem to have found their way into the authorized Law Reports, but they are to be found in the All India Reporter for the year 1933. The first of these two oases is F.D. Footwear v. N.W. Railway : AIR1933All348 . The head-note of that case is as follows:

It is true that Government is excluded from the definition of ' common carrier ' for the purposes of Carriers Act, 1865, but Article 31, Lim. Act, does not contain the expression 'common carrier '; it only applies to a ' carrier ' and is therefore presumably of a wider meaning, and therefore Article 31 does apply to a State Railway.

12. King J. in the course of his judgment at p. 349 said:

The first point taken is that Article 31 does not apply because Government is not a ' carrier ' within the meaning of Article 31. It is pointed out that in Section 2, Carriers Act 1865, the expression ' common carrier ' is defined as denoting ' a person other than the Government, engaged in the business of transporting for hire property from place to place, by land or inland navigation for all persons indiscriminately.

13. I am disposed to adopt this language as being of direct application to the circumstances of this present appeal. The learned Judge continued:

The argument is that Government is expressly excluded from the definition of 'common carrier'; so Article 31 cannot apply to a suit against a State Railway. In this case it appears that both the railways concerned, namely N. W. Railway and the G. I. P. Railway, are State Railways. I think there is no force in this contention. It is true that Government is excluded from the definition of ' common carrier ' for the purpose of the Carriers Act, 1865 but Article 31, Lim. Act, does not contain the expression ' common carrier '; it only applies to a ' carrier ' and is therefore presumably of a wider meaning. I see no reason on the face of it why it should not apply to a State Railway and Article 31 has been applied to the case of a State Railway in Radha Shyam Basak v. Secretary of State (1917) 4 AIR Cal 640. I may also note that in Mutsaddiial v. B.B. & C.I. Ry. Co., and Rohilkhand Kumaun Ry. (1920) 7 AIR All 157, Art 31 was applied to a suit of this nature although it does not appear that the railway in question was a State Railway.

14. That decision was given on 3rd February 1933. About a month later, a similar point came before Mukerji J. in the same High Court in the case in Alamgir Footwear Co. v. Secretary of State : AIR1933All466 . We need not pause to consider the precise facts of the case. It is sufficient to refer to a passage in the judgment at page 467 where the learned Judge says this:

The next point urged was that even if the suit was time-barred, against the Railway Administration it was not barred against the Secretary of State. This is a fallacious argument. The Secretary of State has been impleaded only as the owner of the railway concern and not in any other capacity.

15. Mr. Mazumdar, in answer to a question from me, said that ha was not seeking to draw a distinction between the Secretary of State and the railway administration. He admitted that for the purposes of the present case the railway administration and the Secretary of State must be taken to be one and the same.

16. The learned Judge further said:

The argument that the Government is not a 'common carrier' within the meaning of the Carriers Act (Act 3 of 1865) does not make the Secretary of State for India in Council incapable of taking advantage of Article 31, Schedule 1, Limitation Act. There the word used is 'carrier' and not a 'common carrier'. Then there is no warrant for the contention that the word 'carrier' in Article 31 has the same meaning as the words 'common carrier' as defined in the Carriers Act.

17. This judgment is obviously very germane to the point now before us. It is with considerable regret that 1 find myself unable to agree with the view taken by Lort-Williams J. in the year 1930 but I think that upon the plain, unambiguous and unequivocal words of the Article we have to construe, one is bound to hold that the word 'carrier' is of a wider meaning than the expression common carrier' and that it is wide enough to cover the case of a railway owned or controlled by Government which took upon itself to carry goods belonging to the plaintiff from one place (Poradah Junction) to another, namely (Cossipore Road). It follows, therefore, that the defendant was in a position to avail himself of the protection afforded by Article 30 or Article 31 or both. The appeal is therefore allowed and the suit dismissed, with costs throughout. The applicant will be entitled to retain his costs of the appeal and of the suit out of the moneys lying in Court.

McNair, J.

18. I agree with the judgment which has just been delivered by my learned brother and I have nothing to add.


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