SECRETARY OF STATE Vs. GOLABRAI PALIRAM

JUDGEMENT

(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 Art. 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 Art. 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 Art. governing the facts of this matter is Art. 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 23 May 1930. The judgment delivered by Lort- Williams J. on 23 May 1930 was taken in appeal and came before She late Chief Justice of this Court Sir George Rankin and Pearson J. on 16 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 23 May 1930 came again before the same Judge (as it happened), on 9 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 9 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 23 May 1930; and so it is not surprising, in the circumstances that the learned Judge on 9 November 1936, said : "I see no reason to alter the opinion which I have already given in my judgment, dated 23 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 9 November 1936, in substance it is an appeal from the judgment of the learned Judge given on 23 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 Art. 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 Art. 115 was the Art. 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 Art. 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 Secs.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.