BERI, J. - (1.) THIS is an appeal directed against the judgment and decree dated the 14th September, 1959 passed by the District Judge, Jodhpur in a suit for recovery of goods or failing which money against the State of Rajasthan.
(2.) MST. Soni, a widow, reported to the police that some valuable articles of gold, silver, etc. were stolen from her house. Tansukh Das and Megraj were prosecuted for this theft but were eventually acquitted on 28th February, 1942. On appeal against this acquittal the Chief Court of Jodhpur convicted both the accused persons under sec. 411 of the Marwar Penal Code and directed that the articles recovered from them be delivered to MST. Soni, the plaintiff. A further appeal was taken to his Highness the Maharaja of Jodhpur against the judgment of the Chief Court and the only benefit Tansukhdas and Megraj obtained thereby was that the sentence of fine imposed on them was reduced. Thereafter these two persons Tansukhdas and Megraj instituted a declaratory suit against MST. Soni in the Court of the Judicial Superintendent, Phalodi claiming the articles said to be stolen and recovered from them as their own. They included a number of gold and silver ornaments besides clothes and silver utensils. During the pendency of the suit these articles were obtained from the Magistrate's Court for the purposes of being exhibited in the Civil Court and were ordered by the Civil Court to be kept in safe custody with the Treasury Officer, Jodhpur. The suit of Tansukhdas and Megraj having failed they preferred an appeal before the District Judge and the same was dismissed some time in November, 1950. , An appeal was brought to the High Court on 25th September, 1956. After the judgment of the High Court MST. Soni made an application to the District Magistrate and Collector, Jodhpur, for the return of the articles which were in the safe custody with the local treasury. The District Magistrate ordered that some of the articles which were available with the treasury may be returned through the Sub-divisional Magistrate, Phalodi and for the remainder (the details whereof are given in Schedule A annexed to the plaint) which were not traceable it was said that on their being traced they will be delivered to MST. Soni. This order is contained in Ex. 1. Thereafter MST. Soni served a notice under sec. 80 C. P. C. to the State and as it produced no result she instituted a suit praying that the articles mentioned in schdl. A annexed to the plaint may be returned to her and in the alternative a decree in the sum of Rs 8280/2/9 be passed against the State. The defendant, State of Rajas-than, resisted the suit. The position taken by the defendant was that law had imposed an obligation on servants of the State that they may take into possession property which was stolen and if something happened to the said property on account of their negligence the State is not answerable. It was also pleaded that Article 2 of the Limitation Act, 1908 would apply and the suit was barred by time. The Civil Judge, Jodhpur, decreed the plaintiff's claim and directed the defendant to return the articles mentioned in the Schedule A annexed to the plaint within three months from the date of the decree failing which to pay a sum of Rs. 8280/2/9 with costs to the plaintiff. It also awarded interest from the 30th December, 1958 at the rate of 6 per cent per annum if the defendant failed to return the articles. The State of Rajasthan preferred an appeal. The learned District Judge expressed the opinion that Article 2 governed the circumstances of this case and the suit was, therefore, barred by time and he dismissed the suit. The plaintiff has come up in second appeal. The first point raised by the learned counsel for the appellant is that the learned District Judge was in error in allowing time to the State of Rajasthan to make good the deficiency in court-fee. The only argument advanced for the delay in the payment of court-fee by the State of Rajasthan was that the sanction for preferring the appeal was communicated to the Government Pleader on the day on which the appeal was instituted. In any case it was urged that the Court had only given seven days time for making good the deficiency of the court-fee from 2nd January, 1959 and the court-fee having been paid on 9th even the time extended by the court had expired when the court-fee was in fact paid. The learned counsel for the appellant submitted that the discretion conferred on Courts under sec. 149 of the Code of Civil Procedure was to be judicially exercised and in this case the reasons given by the State of Rajasthan for the enlargement of time did not justify the Court to have exercised its discretion in favour of the State. He placed reliance on Mahanth Ram Das vs. Gangadas (1) and Jodhraj vs. Kesho Deo (2 ). It is correct that whoever makes an application for the benefit of sec. 149 ought to show sufficient reasons. That is what has been laid down by their Lord ships of the Supreme Court in Mahant Ram Das's case (1 ). In Jodhraj's case (2) Bapna, J. observed that a party invoking the aid of sec. 149 must act bona fide adding that mere poverty or ignorance was not a good ground for any indulgence under the section. In this context it will be profitable to turn to Mahasay Ganesh Prasad Ray vs. Narendra Nath Sen (3 ). Their Lordships observed - "secondly, the power of the High Court to allow an amendment under sec. 149, Civil Procedure Code, is clearly one under which the plea of the bar of limitation may be ignored. There are decisions of very high authority taking that view. The contention therefore that by allowing the amendment the High Court took away the present appellants' valuable right to plead the bar of limitation cannot be accepted. It was a matter of discretion for the High Court and the materials put before us indicate no reason to hold that the discretion was exercised so as to violate any recognised principles of law or that by granting leave to amend any gross injustice has been done. As pointed out by the High Court, the payment of court-fees is a matter primarily between the Government and the present respondents and that was the whole fight in respect of this contention. " Their Lordships rejected the preliminary objection. The learned District Judge in the instant case granted seven days' time with effect from the 2nd of January, 1959 to pay up the deficiency of court-fee. The court-fee was paid on the 9th January. The reason urged was that the court-fee stamps could not be purchased. It is a matter of common knowledge that it does take some time for making the purchase of high valuation court-fee stamps and in view of this situation if the learned District Judge exercised his discretion in granting the State of Rajasthan seven days' time to pay up the deficiency of court-fee I am not prepared to hold that it was an exercise of discretion in gross violation of the recognised principles of law and calls for any interference. The question of court-fee is primarily between the Government and the person concerned and the plea of any valuable right on the ground of limitation is not available to the other side. In regard to the second contention that the court-fee was not paid even within seven days I have no difficulty in saying that the contention has no force. In the first place the State of Rajasthan had to pay the court-fee up to 9th January and it paid the court-fee on that date. No argument was ever raised before the learned District Judge on this account. It has not been even raised in the memorandum of appeal before me, and I am, therefore, not prepared to entertain this contention of the learned counsel much less accept it. From the arguments advanced by the learned counsel for the parties two points for determination arise - (1) Whether the learned District Judge was in error in applying Articles 2 of the Limitation Act, 1908 in the circumstances of the case, and if so, which article would apply and whether the suit is within time? (2) Whether the State is not liable for the return of the articles or the payment of compensation? On the question of limitation while the learned counsel for the appellant urges that the District Judge was in error in applying Article 2 and in not applying Art. 49, the learned counsel for the respondent supports the view taken by the learned District Judge. Art. 2 of the Limitation Act, 1908 reads as follows - "art. 2. For compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in India. " Ninety days When the act or omission takes place. For the applicability of this article the suit must be for compensation for doing or for omitting to do an act in pursuance of any enactment in force. In other words where compensation is claimed for the doing of an act or for omission to do an act which act or omission is enjoined by a statute to be done, the applicability of this article is attracted. In a recent judgment of their Lordships of the Supreme Court in State of Punjab vs. M/s. Modern Cultivators (4), Art. 2 has received authoritative interpretation. The Modern Cultivators had instituted a suit against the State of Punjab to recover damages for loss suffered by this firm on account of flooding of its lands as a result of breach of a canal belonging to the State. Hidayatullah, J. held that Article 2 could not apply to this case because this article governs cases where the act or omission complained of is pursuant to some statutory power. After referring to certain cases, Hidayatullah, J. observed - "these cases have rightly decided that Art. 2 cannot apply to cases where the act or omission complained of is not alleged to be in pursuance of statutory authority. I pointedly asked the learned Deputy Government Advocate, appearing in this case on behalf of the respondent, the precise provisions of the statute under which the officers concerned exercised their powers in receiving the articles from the Civil Court for the recovery of which the present suit was instituted. The learned Dy. Government Advocate referred to me secs. 103 and 165 of the Code of Criminal Procedure. Sec. 103 relates to searches. It makes provisions to safeguard against possible unfair dealings on the part of officers connected with search and to ensure honest behaviour and thereby create confidence in the subject who is searched so that reliable evidence is eventually available without any possibility of concoction or mal-practice for administering justice. I am clearly of the opinion that this section has no application to the circumstances of this case. Sec. 165 is another section which relates to a search by a police officer. Whenever an officer incharge of a police station or police officer making an investigation has reasonable ground for believing that anything necessary for the purposes of an investigation into an offence which he is authorised to investigate may be found then after recording in writing the grounds of his belief and indicating the thing for which search is to be made he may conduct a search. I might mention here that the criminal case connected with the theft was over and it is only when the civil suit was instituted by Tansukh Das and Megraj wherein the gold and silver articles were necessary to be exhibited that the necessity for their safe custody with the local Treasury arose. The provisions of sec. 165 had no place or occasion for their operation at the time when the articles in question were handed over to the treasury for safe custody. The learned District Judge has been persuaded to apply Article 2 of the first schedule to the Indian Limitation Act, 1908 because he found that the relief for the recovery of the articles seemed to have been given up and the only question pressed before the trial court was one for claim for compensation. The learned counsel for the appellant strenuously urged and in my opinion rightly that the relief for the return of the articles was never abandoned. In fact this relief was granted by the trial Court, A reference to the judgment of the trial Court in this connection clearly shows that he ordered the return of the articles mentioned in Schedule 'a' annexed to the plaint within three months and it was only on it failing to do so that the defendant was directed to pay the specified amount. The learned Deputy Government. Advocate was unable to show me anything from which this abandonment could be inferred. The learned District Judge has recognised in the course of his judgment that: "in order to bring a case under Article 2 all that is necessary is that the official should have acted under the bona fide belief that his action was justified by the statute, there must be a provision under the law imposing the statutory duty. " But no statute appears to have been referred pursuant to which this duty was being discharged. I am, therefore, of the opinion that the first condition for the applicability of Article 2 does not exist in this case and I shall have to turn to some other article for determining the period of limitation. The learned counsel for the appellant invited my attention to Article 49. It reads as follows: - "for other specific movable property or for compensation for wrongfully taking or injuring or wrongfully detaining the same. " Three years When the property is wrongfully taken or injured, or when the detainer's possession becomes unlawful. I have had an occasion to consider the applicability of this Article in another case. Firm Siremal Dhingarmal Vs. State of Rajasthan (S. B. Civil Second Appeal No. 537 of 1959, decided on 1st September, 1965 ). A suit for obtaining possession of specific movable property or for compensation for wrongfully taking or injuring or wrongfully detaining the same is governed by this article. If it is a suit for recovery of specific movable property then the limitation will be three years from the time when the property was wrongfully taken. If it i? for compensation on account of the injury to movable property then the limitation will be three years from the time when the property was so injured, and if it is for wrongfully detaining the property it will be three years from the time when the possession of the detainer became unlawful. The suit before me is undoubtedly a suit for recovery of specific movable property failing which compensation for wrongfully detaining the same. A part of the property was undoubtedly returned on 26th November, 1956 (Cf. Ex. 1 ). For the remainder it was said that it will be returned when it was traced. A notice under sec. 80 C. P. C. demanding the return of specific movable property or failing which compensation was given on 6th March, 1957. The property was not returned and a suit was instituted on 18th October, 1957. If the period of limitation is 145 computed from the date when the respondent assured the plaintiff that the rest of the articles would be delivered on their being traced and when they were not returned despite notice of demand under sec. 80 C. P. C. their detention because wrongful The suit was therefore, clearly within three years from the date when the detention, became wrongful. Article 49 in my opinion governs this case because the suit is for the return of specific movable property or for compensation on account of its wrongful detention and the suit must, therefore, be held to be within time. The next question which is to be considered is whether the State is liable for the payment of compensation. The learned District Judge relying on Ram Gulam Vs. Government of U. P. (5) held that the Government was not liable. The learned Deputy Government Advocate supported this conclusion and placed strong reliance on M/s. Kasturi Lal Ralia Ram Jain Vs. The State of Uttar Pradesh (6) and Mohammed Murad Vs. Govt of Uttar Pradesh (7 ). This indeed is an important question in this case. It will be profitable to refer to Kasturilal's case (6) and examine the instant case in the light of the propositions laid down by their Lordships of the Supreme Court. In Kasturilals' case (6) a bullion merchant reached Meerut to sell gold, silver and other goods and while he was passing through the bazar of that city he was taken in custody by three police officers. His belongings were searched and he was taken to the Kotwali police station. He was detained there and his belongings which consisted of substantial quantity of gold and silver articles were seized and kept in police custody. The merchant was released on bail and his silver articles were returned to him later. The merchant demanded the return of the gold but when he failed to recover the same he instituted a suit against the State of U. P. and claimed a decree for the return of the gold or in the alternative price thereof and some interest by way of damages. The State resisted the demand saying that the Head Constable in whose charge the said gold was placed misappropriated it and fled away to Pakistan. It was also pleaded that the State of U. P. could not be made liable for the negligence of its officials. After referring to the constitutional provisions and some cases decided earlier their Lordships of the Supreme Court observed: - "thus, it is clear that this case recognises a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of sovereign powers delegated to public servants which are not referable to the delegation of any sovereign powers. If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is: was the tortious act committed by the public servant in discharge of statutory functions which are referable to, and ultimately based on the delegation of the sovereign powers of the State to such public servant? If the answer is in the affirmative, the action for damages for loss caused by such tortious act will not lie; on the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power an action for damages would lie. The act of the public servant committed by him during the course of his employment is, in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose. This distinction which is clear and precise in law, is sometimes not borne in mind in discussing questions of the State's liability arising from tortious acts committed by public servants. " Their Lordships have further observed in para 28 as follows: - "it is not difficult to realise the significance and importance of making such a distinction particularly at the present time when, in pursuit of their welfare ideal, the Government of the States as well as the Government of India naturally and legitimately enter into many commercial and other undertakings and activities which have no relation with the traditional concept of governmental activities in which the exercise of sovereign power is involved. It is necessary to limit the area of these affairs of the State in relation to the exercise of sovereign power, so that if acts are committed by Government employees in relation to other activities which may be conveniently described as non-governmental or non-sovereign, citizens who have a cause of action for damages should not be precluded from making their claim against the State. That is the basis on which the area of the State immunity against such claims must be limited; and this is exactly what has been done by this Court in its decision in the case of State of Rajasthan, 1962 Supp (2) SCR. 989; (AIR 1962 S. O. 933) " It is established that on the orders passed by the Court the ornaments and other valuables were entrusted to the District Magistrate, Jodhpur, presumably as officer incharge of the treasury of the erstwhile State of Jodhpur at Jodhpur. It is also established that some of the said articles were not returned. What happened to them the State has not chosen to throw any light. It will be reasonable to hold that the articles are not available with the treasury. It has to be presumed that their dis-appearance is due to some tortious act of the servants connected with the treasury department. The question which then emerges for consideration in the language of the Supreme Court is - "was the tortious act committed by the public servant in discharge of statutory functions which are referable to and ultimately based on, delegation of the soverign powers of State to such public servant?" While discussing the question of limitation and the applicability of Art. 2 of the Limitation Act I have already held that no statutory provisions governed by the actions of the District Magistrate as in charge of the Treasury. The Officer was not exercising any sovereign powers of the State when he was keeping in safe custody the valuables of the plaintiff. Presumably for want of adequate arrangements for safe custody in the Court, or any other reliable agency the valuables were entrusted to the officer concerned. This task could have been entrusted to any private individual of dependable integrity. I am unable to discover any delegation of any sovereign authority in the transaction. In substance it was a non-government non-sovereign activity and the doctrine of State immunity does not travel to these limits. Learned counsel for the respondent's strong reliance is on Mohammed Murad's case (7) wherein the District Judge, Aligarh in a matter under the Guardian and Wards Act had directed to Nazir to keep some gold ornaments in custody. The Nazir in contravention of the rules framed by the High Court kept these ornaments in the Safe of his office instead of in the box which was to be sent every evening to the Treasury or the Imperial Bank. The lock of the Nazir's room was broken and ornaments stolen. The question arose whether the State of U. P. was liable. The learned Judges observed - "the Governments not liable for the orders passed by Courts of Justice. The reason is obvious. Although the presiding officers of the Courts of Justice may be Government servants in the sense that their salaries are paid by Government and their appointment and removal rest with the Government, yet it goes without saying that once appointed they are independent of the Government. The Government cannot dictate nor even suggest to them in what manner they should decide a particular case. Since they are totally independent of the Government in the discharge of their duties, the Government is not liable for their acts on the ground that it cannot control the said acts. " In the first place the Court ordered the Nazir, a Court official under rules to be the custodian. Secondly in the discharge of his functions under statutory rules he was found to be negligent. There was thus negligence in the discharge of statutory functions. This case is consequently distinguishable. No other point was pressed before me. In the result, therefore, the suit is within time and the State of Rajasthan is not immune from liability. I, therefore, set aside the judgment and decree of the learned District Judge and uphold the one passed by the Civil Judge, Jodhpur. The appellant will get her costs of all the Courts. . ;