Decided on January 29,1960

MALIRAM Respondents


- (1.) THIS appeal arises out of a suit for damages, suffered by the plaintiff-respondent, on account of non-delivery of goods, booked by him for carriage by the Eastern Railways. The claim was valued at Rs. 11,160/ -. The suit was decreed for Rs. 9,765/- with proportionate costs, amounting to Rs. 1,838/ -.
(2.) FACTS, in so far as they are material for decision of this appeal, are herein below stated. On September 9, 1949, the plaintiff booked 186 half-bales of jute for carriage, by the Eastern Railway, from Lalgola Station to Cossipore Road Station. He paid Railway freight at Lalgola and obtained Railway Receipt No. 670047. Although in the usual course the goods ought to have been delivered to the plaintiff on September 15, 1949, the Railway Administration failed to deliver the goods. The plaintiff, thereafter, made repeated attempts to obtain delivery, when at last on December 1, 1949, he was told that the Railway Administration was not in a position to deliver the aforesaid goods. After service of usual notices under Section 77 of the Indian Railways Act and under Section 80 of the Code of Civil Procedure, the plaintiff respondent filed a suit in the Original Side of this Court, being suit No. 1009 of 1950 for recovery of damages. The aforesaid suit was filed on February 28, 1950 and a certified copy of the plaint in the aforesaid suit is Exhibit B (l), in this case. The said suit came up for hearing before A. K. Sarkar, J. on May 26, 1952 and his Lordship was pleased to dismiss the suit on the ground that the High Court had no jurisdiction to try the suit. A certified copy of the decree passed in the aforesaid suit has been filed in this case, marked as Ext. '8'. Thereafter, on June 11, 1952, the plaintiff sent a fresh notice under Sec. 80 of the Code of Civil Procedure to the Railway Administration and after the expiry of the statutory period, filed the suit, out of which this appeal arises, on August 20, 1952, in the 1st Court of the Subordinate Judge at Alipore.
(3.) IN paragraphs 11 and 13 of the plaint, the plaintiff invoked the provisions of section 14 of the Indian Limitation Act for the purpose of excluding the period of about 2 years and 3 months, which was consumed in uselessly prosecuting suit No. 1009 of 1950, in the Original Side of the High Court. Paragraphs 11 and 13 are set out below:- "11. That the plaintiff states that hither to before he filed a suit in the Hon'ble High Court at Calcutta in its Ordinary Original Civil Jurisdiction being Suit No. 1009 of 1950 on the 28th February, 1950 for recovery of damages and/or compensation for non-delivery of the said consignment. But the said suit was dismissed on the 28th May, 1952 on the technical ground of want of jurisdiction. 13. That the plaintiff states that the previous suit in the Hon'ble High Court was dismissed as the Court was unable to entertain the same for want of jurisdiction. The time taken in the proceeding of the said suit till its dismissal was 2 years and 3 months. The plaintiff is entitled to deduct the said period of 2 years and 3 months in computing the period of limitation for filing the present suit and hence the plaintiff is within time. ";

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