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1958 DIGILAW 93 (RAJ)

Lokchand v. Union of India through Gen. Manager B. B. & C. I. Rly, Bombay

1958-03-21

BAPNA

body1958
Bapna, J.—This is a second appeal by the plaintiff in a suit for recovery of damages. 2. The plaintiff Lokchand booked two items, one cycle and one trunk, from Ujjain to Kishangarh on 27th July, 1947. When he reached Kishangarh on 29th July, 1947, he got delivery of the cycle but not of the trunk. He entered into correspondence with the Traffic Manager, B. B. & G. I. Railway, and gave a notice under sec. 77 of the Railways Act to the Traffic Manager, on 13th August, 1947, and later on under sec.80 of the Code of Civil Procedure on 16th March, 1950, and as he did not receive any satisfaction, he instituted, the present suit on 5th September, 1950, for recovery of Rs.712/8/-as value of the goods which were not delivered. 3. On behalf of the Railway Administration the pleas taken were that the notice under sec. 77 of the Railways Act was not valid, that the notice under sec. 80 C.P.C. was not served, and that the suit was barred by limitation. 4. The trial court dismissed the suit on the ground that the alleged notice under sec. 77 of the Railways Act was not served on the proper officer. 5. On appeal, the learned Civil Judge held that no notice was necessary under sec.77 of the Railways Act, as the case was one of non-delivery and not of loss or deterioration of the goods. He held that the proof of notice having been served under sec. 80 C.P.C. was not sufficient. He held that the suit was barred by limitation. The appeal was accordingly dismissed. 6. Learned counsel urged that the two grounds on which the suit was dismissed were not correct. On going through the record I find that there is no defect of non-service of notice under sec. 80 C.P.C. Mention was made of this fact in para 3 of the plaint, and the postal acknowledgment Ex. P. 3 was produced. Notice was sent by an advocate, Mr. Bakliwal, and is acknowledged by some person on behalf of the General Manager, whose rubber seal is affixed on the postal acknowledgment. The copy of the notice was sought to be produced on 14th May, 1951, but it was objected on behalf of the defendant that the document had not been produced earlier, and being a copy was not admissible. Bakliwal, and is acknowledged by some person on behalf of the General Manager, whose rubber seal is affixed on the postal acknowledgment. The copy of the notice was sought to be produced on 14th May, 1951, but it was objected on behalf of the defendant that the document had not been produced earlier, and being a copy was not admissible. These objections were upheld by the trial court, but quite erroneously. Sec. 65 read with sec. 66 of the Evidence Act permits the production of the copy of the notice without summoning the original. It was for the defendant to show by production of the original that the document did not amount to a notice according to sec. 80 C.P.C.,but the defendant having failed to produce the original could not have any grievance when its copy was produced by the plaintiff. 6. On the second question learned counsel for the plaintiff urged that the Article applicable was 31 of the Limitation Act, and limitation would run from the date when he was told that he would not get delivery of the article. He relied on G.G. in Council vs. Khadi Mandli (1) and Raigarh Jute Mills vs. Commissioners, Calcutta Port (2). 7. In my opinion the view of law taken in the above cases is not correct. Art. 31 of the Limitation Act runs as follows:— Description of suit. Period of limitation. Time from which period begins to run. 31. Against a carrier for compensation for non-delivery of, or delay in delivering goods. One year When the goods ought to be delivered. In the present case, since one item of the luggage was received on the 29th of July, 1947, that was the date when the other item also ought to have been delivered. The time began to run from 29th July, 1947. The suit was instituted on 5th September, 1950, and was obviously barred by limitation. The view which I have taken, finds support in Darjeeling Himalayan Rly. Co. Ltd. vs. Jetmul Bhojraj (3), Rajmal Pahar Chand vs. Dominion of India (4) and Gajanand Kajgoria vs. Union of India (5). It was rightly observed in the Punjab case (4) that the fact that the Railway Administration tried to search the goods or make enquiries would not extend limitation. 8. The suit was rightly dismissed and this appeal fails and is dismissed. It was rightly observed in the Punjab case (4) that the fact that the Railway Administration tried to search the goods or make enquiries would not extend limitation. 8. The suit was rightly dismissed and this appeal fails and is dismissed. I shall not allow costs as two of the pleas taken in defence have been found to be unsustainable.