M.M.Dutt, J. - (1.) This appeal is at the instance of the plaintiff and it arises out of a suit for recovery of the price of goods.
(2.) On June 29, 1948, the appellant alleged to be a dissolved partnership firm, booked 150 bales of piece goods at Wadi Bander on the G.I.P, Railway for carriage by the said railway and also by the E. N. Railway and for delivery of the same to the appellant at Shalimar. It was alleged that on July 17, 1948, the B. N. Railway delivered 140 bales of piece goods and failed and neglected to deliver the remaining 10 bales and/or lost the same and thereby caused loss and damage to the appellant. The appellant accordingly, claimed Rs. 10.183-4-6 on account of the value of 10 bales and Rupees 1,018-6-3 for loss of commission at the rate of 10 per cent of the value of the goods. The total amount claimed by the appellant is Rs. 11,202-4-9. It was alleged that the statutory notices under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure were duly served.
(3.) Initially, the appellant instituted the suit claiming the said amount in the Original Side of this Court being suit No. 3934 of 1949. On September 16, 1957, Lachminarayan Poddar, one of the partners of the appellant-firm died. On January 4, 1957, the High Court dismissed the suit for want of jurisdiction. On January 7, 1957, the present suit was filed in the third Court of the Subordinate Judge, Howrah. It was contended that the period during which the High Court suit was pending should be excluded in computing the period of limitation of the present suit.;