S.S. Dulat, J. - (1.) THE main facts of this case are not in dispute. On the 1st July, 1947 Messrs. Keshodas Hassanand of Karachi handed over to the railway authorities Karachi three cases containing looking glass to be despatched to Delhi Shahdara Railway Station. These goods appear to have been carried from Karachi as far as Mecleod Ganj Road Railway Station and at that place the goods were held up by the Pakistan Customs authorities, the partition of the country having in the meantime taken place. The railway receipts were later endorsed by the consignor in favour of Girdhari Lal, proprietor of Messrs. Bhalla Sales Corporation of Delhi, and enquiries by him from railway authorities at Delhi revealed that the Pakistan Customs authorities were demanding payment of some duty and at one stage the railway authorities informed Girdhari Lal as well as his predecessors -in -interest that it was not possible to have the goods brought to Delhi unless arrangements were made for the payment of the dues claimed by the Pakistan authorities. Correspondence, however, went on for a fairly long time. On the 17th December 1949 the railway authorities wrote to Girdhari Lal repudiating their liability, but a few days later they seem to have offered to go into the matter again and it was on the 6th March 1950 that the railway authorities finally declined to do anything further in the matter. On the 3rd March 1951, Girdhari Lal brought a suit against the Union of India through the Railway Administration for the recovery of Rs. 10,669/ - and costs and future interest in respect of the price of the goods not delivered to him.
(2.) SEVERAL pleas were raised in defence on behalf of the Union of India, but the main defence, with which we are now concerned, turned on the question of limitation. In the plaint Girdhari Lal had averred in paragraph 9 that "in ordinary course the goods should have been delivered to the Plaintiff at Delhi by the end of July 1947" and then went to say that "the said railway finally refused to deliver the goods by letter dated the 6th March, 1950" and then in paragraph 13 of the plaint it was said that "the suit is in time. The Plaintiff further submits that the earliest refusal to deliver the goods was by letter of Defendant No. 1, dated the 6th March, 1950, referred to above, i.e., within one year of the institution of the present suit". The Plaintiff's claims, therefore, that his suit was within time, rested firmly on the ground that, although in the ordinary course the goods should have been delivered to him by the end of July, 1947, the railway authorities did not finally decline to deliver the goods till the 6th March 1950 and time had begun to run only from that date, namely, 6th March 1950, which was the date of the letter terminating further correspondence. In defence, it was said that the suit was not within time because the letter of 6th March 1950 could not in law be the starting point of limitation. When this question of limitation came to be considered by the trial Court, both parties were agreed that the suit, being for non -delivery of goods, was governed by Article 31 of the Limitation Act. The learned Judge then considered whether time could in law be taken to have commenced running from the 6th March 1950, and he relied on a decision of the Madras High Court, to which I need not now refer, and two decisions of this Court, namely, Dominion of India v. Khurana Brothers, AIR 1951 P&H 254 and Dominion of India v. Amar Singh, 57 Pun L.R. 403. In, AIR 1951 P&H 254, Khosla, J., sitting alone, had expressed the view that ("the time in which the goods ought to be delivered (used in Article 31 of the Limitation Act) must be given a slightly more liberal interpretation and in the case of a Railway, where goods are frequently delayed, the date of delivery should be considered to be the date on which the consignee is informed that "the goods are not available either because they have been lost or misdirected". In view of these observations the trial Court held that the time of one year mentioned in Article 31 must in this particular case be counted from the date of the final refusal of the railway to deliver the goods, being the 6th March '1950, and in this manner he held that the suit was within limitation. The other pleas raised in defence were also negatived by the trial Court and, in the result, a decree for Rs. 10,669/ - and costs was granted to the Plaintiff against the Union of India. Against that decree the Union of India appeal. Mr. Nanak Chand for the Appellant contends that the view of the trial Court concerning the meaning of Article 31 of the Limitation Act is wholly erroneous and that the matter has now been set at rest by a decision of the Supreme court in Boota Mal v. Union of India : AIR 1962 SC 1716. He is, I think, right. Article 31 of the Limitation Act fixes the time for a suit against a carries, for non -delivery of goods as one year and this period of one year runs from the time "when the goods ought to be delivered." There was for some time a conflict of judicial opinion regarding the meaning of this phrase. One view was that the phrase "when the goods ought to be delivered" meant the time reasonably taken in the circumstances of a particular case for the transport of the goods from the place of booking to the place of delivery. The other view, which embodied "a slightly more liberal interpretation" in the words of Khosla, J, was that time should betaken to run from the final refusal of the railway to deliver the goods. A Division Bench of this Court, of which I was a member, in 57 Pun LR. 403, was inclined to agree with the view of Khosla J. in, AIR 1951 P&H 254 and Harnam Singh J. said that' the meaning of the phrase "when the goods ought to be delivered" is not the time when the goods should have been delivered in the normal course. The soundness of that view was later doubted in this Court which led to a reference to a Full Bench, and the Full Bench in Dominion of India v. Amin Chand Bhola Nath : 58 Pun LR 364: ((S) AIR 1957 P&H 49), authoritatively held that limitation in such cases starts on the expiry of the time fixed between he parties and in the absence of any such agreement the limitation starts on the expiry of reasonable time which is to be decided according to the circumstances of each case, and the Full Bench expressed their inability to accept view of Khosla J. in, AIR 1951 P&H 254. and the view of the Division Bench in, 57 Pun. LR 403. Then came a concrete case Union of India v. Boota Mal, First Appeal No. 299 of 1951, (Punj) being an appeal to this Court from the decree of a Subordinate Judge who had decreed the suit of Boota Mal holding it to be within lime. The Plaintiff in that case had handed' over to the railway at Gujranwala a consignment of goods on the 5th August 1947. The goods never reached their destination, which was Jagadhri, and a good deal of correspondence passed between the railway authorities in India and the Plaintiff in that case, and the railway authorities ultimately on the 1st December 1948 disclaimed all responsibility. The suit was brought on the 13th December 1949. The question in the case was whether on account of the protracted correspondence between the parties during the course of which the railway authorities had informed the owner of the goods that they had been held up at Gujranwala by the Pakistan Government and could not be brought to India without a proper permit, time should be deemed to run from the date of the final refusal of the railway to deliver the goods. This Court held, in view of the Full Bench decision that the correspondence was of no particular relevance for determining the question of limitation and that the date, on which the consignor was informed that the goods could not be -delivered, was irrelevant Falshaw J., who wrote the main judgment, then considered the question, whether in the circumstances of the case reasonable time taken for the transport of goods could' be extended, so as to bring the suit within limitation and he found that in spite of abnormal conditions following the partition of the country it was clear that even if a period of 5 or 6 months was held to be the reasonable period it would not help the Plaintiff because the suit had been brought more than two years alter the goods were handed over to the railway. In the result, the Division Bench held that the suit was barred by time. An appeal against that decision was taken to the Supreme Court and that Court then had occasion to consider the soundness of the view expressed by the Full Bench. The Supreme Court approved the reasoning of the Full Bench and held that "the starting point of limitation is after reasonable time has elapsed for the carriage of goods from the place of dispatch to the place of destination", and that what is reasonable time will depend on the circumstances of each case. It is thus clear that the view taken by the trial Court in the present case is now unsupportable and, the Plaintiff -Respondent cannot in law claim, as he did in the plaint, that time of one year mentioned in Article 31 of the Limitation Act should be counted from the date of the final refusal of the railway to deliver the goods, namely, 6th March 1950. What is more, the present case is on its facts somewhat worse than the case of First Appeal No. 299 of 1951 (Puni), in which the Plaintiff's claim was held time barred, for here, the suit was brought more than 34 years after the goods were handed over to the railway. And but for that, the facts are very similar. In both these cases 'the goods were handed over to the railway authorities soon before the partition of the country and in both cases the goods were held up by the Pakistan authorities subsequent to the partition. In both cases the Pakistan authorities demanded payment of certain dues and correspondence on that matter went on for some time and in both cases the railway authorities warned the owner of the goods that there was this particular difficulty in bringing the goods to India. In both cases the suits were delayed much beyond the period of one year. Added to this is the fact that in the present case the Plaintiff -Respondent himself averred in the plaint that in the ordinary course the goods -should have been delivered the Plaintiff by the end of July 1947. It is true that in view of the circumstances we may be inclined to extend the period and possibly think that one month was not a reasonable time in the circumstances of this case but there is no material on which we could extend this time, more or less indefinitely. As was held in First Appeal No. 299 of 1951 (Punj), 5 or 6 months may perhaps be considered reasonable in the present case also, but that does not in the least help the Plaintiff, for his suit was brought more "than three years after even the expiry of that much time.
(3.) FACED with situation, Mr. Bhagwat Dayal urges that he should not be tied down to the actual ground on which he had based his claim "that the suit was within time but should be allowed to go outside that claim, and his suggestion is that there are in the correspondence between the parties certain statements which should be taken was written acknowledgments of liability within the meaning of Section 19 of the Limitation Act. I do not, however, see how we can permit this at this stage when there is not even an application for any amendment of the plaint. It is obvious that had the Plaintiff -Respondent taken any such ground in the suit and alleged that any particular acknowledgment was made by the opposite party which had the effect of extending the period of limitation, it would have been open to the other party to show that the acknowledgment was either not made, or that it was not authorised, or that it was not within time, so that, if we were now to allow Mr. Bhagwat Dayal to raise this controversy, we would have to permit a re -opening of the pleadings and a retrial of the suit. There is in the present case no justification for adopting such an unusual course. On the pleadings as they stand, the position is clear and it is that on the Plaintiff's averments the present suit is barred by time. We must, in my opinion, so hold and therefore, allow this appeal and set aside the decree of the Court below, and instead dismiss the Plaintiff's suit but, considering all the circumstances, leave the parties to their own costs throughout. P.C. Pandit, J.;