Wanchoo, C. J. - (1.) THIS is a first appeal by firm Bansilal Sukhlal and others against the judgment and decree of the Civil Judge, Udaipur, by which that court decreed the suit brought by Qurban Hussain Banduqwala plaintiff for a sum of Rs. 7,311/ -.
(2.) THE case put forward by Qurban Hussain in the plaint was this. Another Qurban Hussain Bhujiawla, who is defendant No. 1 in the suit, arranged to get a consignment of 12 bales of Niwar from Seth Gopaldas Rathi of Kanpur, weighing 30 maunds, 18 seers and 4 chhataks. THE Niwar was purchased at Rs. 120/- per maund, and the consignment was sent to Udaipur. THE railway receipt was sent through the Bharat Bank. It so happened that defendant No. 1 Bhujiawala could not pay for the Niwar, but managed to get it from the railway by executing an indemnity bond and giving security of Baqar Hussain. THEn arose the question of payment of customs duty and railway freight, and Bhujiawala had not money even for this. It is said that he had dealings with the firm Banshilal Sukhlal and therefore borrowed some money for payment of customs duty and railway freight from them, and took delivery of the consignment. As a security for this loan, the 12 bales of Niwar were kept in the custody of the firm Banshilal Sukhlal and it was agreed that the firm would return the bales on payment of the amount borrowed from them. It seems, however, that Qurban Hussain Bhujiawala could not arrange to pay them anything, and therefore eventually sold this consignment to the plaintiff Banduqwala for Rs. 300/- and Banduqwala was to pay the price to Gopaldas Rathi of Kanpur and also pay the amount to the firm Banshilal Sukhlal, which was due to them. It is further said that Bhujiawala took Banduqwala to the shop of Banshilal Sukhlal and told them that Banduqwala would pay the amounts due to the firm and they should deliver the consignment to Banduqwala. This agreement of sale took place on the 9th of July, 1948, and is Ext. P-l. THE plaintiff's case further is that he went a number of times to the shop of Banshilal Sukhlal but they put him off on several occasions. Eventually they said that they had never received any bales of Niwar from Bhujiawala, and had nothing to give to Banduqwala. THE exact date of this refusal is not given; but it is said to have taken place sometime in the month after 9th of July, 1948. THE present suit was filed on the 9th of July, 1951, and the plaintiff claimed the return of the 12 bales of Niwar or in the alternative their price at Rs. 240/- per maund. This worked out to Rs. 7,311/ -. Bhujiawala defendant No. 1 supported the case of the plaintiff. The suit was resisted by the firm Banshilal Sukhlal and its partners defendants 2 to 5. Their case, as put in the written statement, was very short. They said that Bhujiawala had never kept the 12 bales of Niwar with them, that they had not advanced any money to Bhujiawala for payment of customs duty and railway freight, and that the plaintiff Banduqwala was not entitled to any thing from them. Seven issues were framed by the court below and were all decided in favour of the plaintiff. The main point, that arises for determination in the appeal, is whether the 12 bales of Niwar were kept by Qurban Hussain Bhujiawala with the appellants, and it was agreed that the appellants would return those bales when they were paid back the sum they had advanced to Bhujiawala for customs and freight, and whether the plaintiff was entitled to claim these bales from the appellants on payment of the necessary amount. Besides this, a number of other with this main point. When evidence came to be given, the appellants came forward with a new case which they had not put forward in the written statement. This new case was that the bales of Niwar had certainly been received by them, but that these bales had been entrusted to them by Baqar Hussain with whom the appellants had dealings, and the appellants had sold these bales on the instructions of Baqar Hussain and credited the amount to the khata of Baqar Hussain with them, and that only a small sum of money was due from them to Baqar Hussain on that account. It is remarkable however that when Baqar Hussain was produced as a witness for the plaintiff, this case was not put to him, and it was only when the defence evidence began to be given that the appellants came out with this story. We have, therefore, to see whether the case put forward by the plaintiff is correct, or the case but forward by the appellants. We have been taken through the evidence on this question of fact. The main witness for the plaintiff is Qurban Hussain Banduqwala himself. He has proved the case that he put forward in the plaint, and has stated that he went a number of times to the appellants and demanded the bales of Niwar from them and they put him off and eventually told him that they did not have any such bales. Various parts of the statements of plaintiff have been corroborated by the evidence of Abid Ali P. W. 4, Baqar Hussain P. W. 5 and Sadiq P. W. 7. We are satisfied from the evidence of these witnesses that the case put forward in the plaint is correct, and that the belated case of the defendants is a concoction, which they had been able to put forward because they had been dealing with Baqar Hussain from before, and these tales happened to be put in a room which had been rented long before from 1946 in the name of Baqar Hussain. Two of the defendants appellants, namely Sukhlal and Banshilal, appeared as witnesses on their behalf, and a perusal of their statements clearly shows that the 12 bales of Niwar, which were entrusted to them, could only have been put there by Qurban Hussain Bhujiawala, and their story about the Niwar having been given to them by Baqar Hussain is not true. It is remarkable that the appellants have had dealings with Baqar Hussain. But still they had not the courage, when this Baqar Hussain appeared as a witness for the plaintiff, to ask whether the 12 bales of Niwar are entrusted to them by Baqar Hussain. The failure, therefore, of the appellants to put this case in the written statement, and then further failure to question Baqar Hussain about it when he appeared in the witness box are circumstances which go strongly against this story put forward at a late stage, and are indicative of the fact that the plaintiff's story is correct when we have clear evidence that 12 bales of Niwar were placed with the defendants, and that they had paid customs duty and railway freight in that connection. Further a perusal of the statements of these two defendants would show that whenever they are unable or unwilling to answer a question each one of them pretends ignorance and says that the other partner would know about it. There are, however, two documents which clearly prove that the plaintiff's story is true, and the case of the appellants is false. First of these documents is Ex. P-3, which is in the hand-writing of Banshilal. This is a letter from the appellant firm to Gopaldas Rathi of Kanpur. In this letter Banshilal says that the goods supplied by Gopaldas to Qurban Hussain Bhujiawala were in their custody, and that Qurban Hussain owed them Rs. 1200/-, and they were prepared to return the goods if Gopaldas gave them this amount. This letter clearly demolishes the case put forward later on by the appellants that these goods were: placed with them by Baqar Hussain. Then there is another document Ex. P-4. This is an intimation to Qurban Hussain Bhujiwala of the arrival of the railway receipt of the bales of Niwar, and it was sent to him through the appellants. Banshilal has admitted the receipt of this intimation, and it seems to us rather daring on the part of the appellants to put up the defence which they did in the end in the face of these two documents. Qurban Hussain Banduqwala plaintiff has also said that he gave notice to the appellants about this when they refused to give him the Niwar. The fact of the notice being received was also denied by the appellants in their statements; but it has been proved from the evidence of Mr. Manaklal advocate that the notice was given by him to the appellants, and he had received a reply to that notice through Mr. Jiwansingh advocate of the appellants. Mr. Jiwan Singh also appeared as a witness, but he did not remember any matter connected with this affair. But Mr. Manaklal's statement is confirmed by the Post Office acknowledgment receipt which is also marked Ex. P-4. On a careful consideration therefore of the evidence in this connection, which has been produced on either side, we are satisfied that the case put forward by the plaintiff is true, and that the 12 bales of Niwar were kept with the appellants by Qurban Hussain Bhujiawala, and it was agreed between them that the appellants would return the bales when Bhujiawala paid back the amount due for customs duty and freight, which he had borrowed from the appellants. It is also proved that Bhujiawala sold these bales to Banduqwala, and told the appellants to return the goods to Banduqwala, and as such the plaintiff Banduqwala became entitled to get back these goods from the appellants on payment of customs duty and freight. The next question is about the rate at which the price of the Niwar should be calculated, as the appellants are not in a position to return the goods to the plaintiff. The plaintiff claims that he should be compensated at the rate of Rs. 6/- per seer. Besides giving his own evidence, he has led evidence to show that the Niwar of this quality was worth about Rs. 6/- a seer in 1948. The appellants, on the other hand, produced two witnesses to show that this Niwar was only worth Rs. 2/8/- or Rs. 2/12/ - per seer. These witnesses are Hiralal D. W. 1 and Naraindas D. W. 5. Their statements are obviously unreliable for the manufacturer's price of this Niwar was Rs. 3/-per seer, and it is no one's case that the price of Niwar had gone down during these days, and therefore the statements of these defence witnesses are utterly unreliable. We are then left only with the statements of the plaintiff and his witnesses, which go to show that the retail price of Niwar of this quality was anywhere between Rs. 5/8/- and Rs. 6/4/- per seer at that time. The plaintiff has claimed compensation at the rate of Rs. 6/- per seer. This however is the rate for retail sale to consumers. It has no where been proved that the plaintiff had a shop for retail sale of Niwar or goods of that kind for he happens to be a tailor. It seems, therefore, that it would not be fair to give the plaintiff compensation at the rate at which Niwar could have been sold to consumers. We think, under the circumstances of this case, the plaintiff is entitled to profits as between a whole-saler and a retailer, and it would be fair to pay him at 50% above the manufacturer's price. We would, therefore, give the plaintiff' a decree at the rate of Rs. 4/8/- per seer, and the amount decreed would be correspondingly reduced. The next point, that is urged, is that the lower court has only deducted Rs. 220/2/- from the amount decreed for customs and freight. The appellants claim that they should have been allowed the rent of the room in which the Niwar was kept and also interest on the amount which they had advanced particularly as Banduqwala's evidence shows that Bhujiawala had agreed to pay interest. The evidence of Banduqwala shows that Bhujiawala took him to the shop of the appellants; the appellants told him that he would have to pay the customs duty and also interest and rent of room, and he came away then without objecting to this demand. Banduqwala's further evidence is that when he went later to get the goods, the appellants demanded a sum which he placed either at Rs. 250/- or Rs. 275 /- as due to them. Under the circumstances we consider that the lower court should have allowed Rs. 275/-in all to the appellants in this connection.
(3.) BEFORE was come to consider the point of limitation that has been raised, we may dispose of one argument, namely that the plaintiff has not produced Bhujiawala as a witness. That is no doubt so; but considering the evidence, that! has been produced and particularly the statements of the two defendants, we are of opinion that the case for the plaintiff is proved amply even without the statement of Bhujiawala. It would have been better if Bhujiawala had been produced in the witness box; but his absence has not, in this case, in any way affected the proof of the case for the plaintiff. Learned counsel for the appellants urges that the suit is barred by limitation. It is not in dispute that the cause of action in this case arose a few days after the 9th July, 1948. The suit was filed on the 9th July, 1951, when the Indian Limitation Act, as adapted to Rajasthan was in force. Again admittedly Art. 49 of the Indian Limitation Act applies to this case, and the period of limitation is three years. Prima facie, therefore, the suit was within time when it was filed on the 9th July, 1951. Learned counsel, however, argues that the period of limitation in this case has expired under the Limitation Ordinance (No. XXXIII) of 1948 of the State of former Rajasthan, and in view of the provisions of sec. 12 (2) (b) of the Rajasthan Limitation Act (Adaptation) Ordinance (No. VI) of 1950, the period of limitation could not be extended if such period had already expired before the commencement of this Ordinance. The argument in relation to the Limitation Ordinance of the State of former Rajasthan is this. The Limitation Act of Mewar State of 1932 provides no special article for a suit of this kind and under the Act the period of limitation for such suits was 8 years under Art. 19 i. e. the residuary article. Under the Limitation Ordinance (No. XXXIII) of 1948 of the State of former Rajasthan, which came into force on the 28th August, 1948, a special article, namely Art. 49 of the Indian Limitation Act came into existence, which applied to suits of this kind, and the period of limitation was fixed at 3 years. It is, therefore, urged that the period of limitation for suits of this kind was reduced from 8 years to 3 years, and sec. 5 of Ordinance (No. XXXIII) of 1948, therefore, comes into play : - "the enactment relating to Limitation of suits appeals and applications, in force in any of the covenanting States of the United State of Rajasthan, and all orders, notifications and other instruments relating to the law of limitation in force as aforesaid are hereby repealed; provided that any suit for which the period of limitation prescribed by the said Act as applied hereunder is shorter than the period prescribed by any such enactments, order, notification or instrument as aforesaid which is applicable thereto may be instituted within the period of six months next after the date of commencement of this Ordinance, or within the period prescribed for such suit by the said enactment, order, notification or instrument, whichever period expires first. " It may be accepted that the period of limitation for suits of this kind was reduced from 8 years, as it was in the Mewar Limitation Act to 3 years under the Limitation Ordinance of the former State of Rajasthan. The question, however, still is whether sec. 5 would apply to a suit in which the circums-tances are which we will narrate just now. When Ordinance No. XXXIII of 1948 came into force, and there was a reduction in the period of limitation in relation to certain suits, three possibilities would arise in such circumstances, namely: - (1) the [reduced period of limitation under that Ordinance might have expired before it came into force; (2) the period of limitation under the old law might not have expired when the Ordinance came into force, but was going to expire in less than six months after coming into force of the former Rajasthan Ordinance; (3) the reduced period of limitation had not expired before the coming into force of the Ordinance, and was going to expire more than six months after coming into force of that Ordinance. The present case is of the third kind, namely where the reduced period of limitation had not expired when Ordinance No. XXXIII of 1948 came into force on the 28th August, 1948, and this reduced period of limitation had still to run for more than 2 years and 10 months on the 28th Aug. , 1948. The question then arises is whether it was the intention of the legislature, even in those cases where the reduced period of limitation under Ordinance No. XXXIII of 1948 was to run for a much longer period than six months provided under sec. 5, to cut down that period to maximum of six months. We are of opinion that this could not have been the intention. Sec. 5, in our opinion, was enacted in order mainly to save those cases where the reduced period of limitation under Ordinance No. XXXIII of 1948 had expired before it came into force and six months' grace was allowed in such cases. Where the period under the old law had not expired and it was less than six months from the date of Ordinance No. XXXIII, the legislature thought it fit not to give any grace at all. It could not have been the intention of the legislature, where the period of limitation was being reduced, say as in this case, from 8 years to 3 years, and when the reduced period was to run for a much longer period than six months, to reduce it still further, and to enact that in such a case also the maximum period would be six months This will be further clear from the fact that the poviso to sec. 5 would not apply in terms to those cases where the period of limitation under the old law was not going to finish within the next six months. The alternatives provided in this proviso would only apply to the first two cases which we have mentioned, and in a case of the third kind, namely where the reduced period was going to run for six months after the Ordinance, the period of limitation as provided by Ordinance No. XXXIII of 1948 would apply, and the proviso would not apply at all. We are, therefore, of opinion that the proviso to sec. 5 does not apply to this case, and therefore the suit was within time. ;