1992 PLP 128 (CLC)

(vi) Whether the plaintiff is entitled to the decree as prayed for? (vii) Relief? The respondent in order to substantiate his claim besides recording his own statement produced witnesses namely Muhammad Mushtaq, Muhammad Ibrahim, Muhammad Sharif, Khushi Muhammad, Jamal Zafar, Abdul Aziz Sheikh and Mohammad Arfeen. Whereas the appellant produced witnesses namely Mohammad Sharif, Imama Din and Ghulam Nabi Afridi.

8. The trial Court after recording evidence decreed the suit in favour of respondent and against appellant with cost.

9. Learned counsel for appellant emphasised that the suit filed by plaintiff was barred by time, as according to Article 31 of the Limitation Act, period of one year for recovery of compensation against a carrier for non delivery or delay in delivering goods from the time when the goods ought to have been delivered, has been specified and if after the despatch of wagons, coal was not delivered, respondent would have filed suit within one year from the date, when goods ought to be delivered. In the Railway receipts the time was not fixed for the delivery of goods therefore, the suit should have been filed within one year after lapse of reasonable time whereas in accordance with the plaint, wagons loaded with coal were despatched from various Railway Stations i.e. Kuchlak, Samuggli and Sibi, in between the period of March, 1978 upto November, 1978 and the suit was filed on 9th of February, 1981 which is hopelessly barred by time.

10. On the other hand, learned counsel for respondent/plaintiff has strenuously opposed the arguments of appellant and contended that suit is within time as notice under section 80 of the Civil Procedure Code was issued on Ist of February, 1980 and on the expiry of the period of two months mentioned in notice, within next one year suit was filed which is quite in time.

11. We have heard the arguments of learned counsel appearing for both the parties. The record of the case has also been perused carefully.

12. As the matter relates to interpretation of Article 31 of the Limitation Act, therefore, same is reproduced as under:‑ "

31. Against a carrier for one When the goods ought to be compensation for non‑ delivered delivery of, or delay in, delivering goods. The interpretation of above article has been subject matter before various High Courts and Supreme Court of Pakistan, therefore counsel for both the sides cited various judgments at the time of hearing of appeal, to substantiate their respective claims. The judgments, which are available on interpretation of above article of limitation are hereby summarily examined as under:‑ (i) PLD 1956 (West Pakistan) Lahore 1093: Firm Muhammad Sadiq and Imam Din v. Federation of Pakistan. In this case it was held that time will run for filing of the suit for compensation against carrier within the scope of Article 31 of the Limitation Act, from the definite refusal or declaration of inability to deliver the goods made by defendant and cause of action in such cases arises when the owner of the goods is made aware that there will be no further delivery. (ii) PLD 1958 Dacca 452: Dada Ltd. v. R.S.C. Co. Ltd. In this case Dacca High Court held that time for suit for damages for short delivery of goods will begin to run from definite refusal by carrier. It was also discussed that according to expression "when the goods ought to be delivered" means, when the plaintiff could have filed the suit for compensation that being met by a plea that suit was premature. Although in this case the suit was filed after a period of one year but it was held that since carrier did not inform the owner as to the result of their promised enquiry till the date of the suit, therefore the suit was considered within time. (iii) P L D 1959 Dacca 672; River Steam Navigation Co. Ltd. and others v. M/s. Dada Ltd. This judgment was passed by Division Bench of Dacca High Court in a letters patent appeal filed against the judgment of Single Judge, which is reported in P L D 1958 Dacca

452. In this case the expression "when the goods ought to be delivered" has been discussed and it was held that this expression must be considered to mean, that when the plaintiff realised that defendant by his conduct meant to convey that the goods could not be delivered. In brief the fats of this case are that 726 bags out of 100 of rape‑seed were delivered, on 25‑1‑1951 and in respect of remaining 274 short bags, there was a series of correspondence between the carrier and consignee and only on one occasion reply was given that matter is being enquired into and the result will be communicated to the owner in due course. However, no result was intimated in spite of repeated requests and under these circumstances owner of the goods finally sent a letter on 14‑7‑1951 and thereafter filed a suit for compensation on 12‑6‑1952 and it was held that suit was within time. (iv) PLD 1961 SC

340. Abdul Jald Chaudhry v. Muhammadi Steamship Co. Ltd. and others. In this case, the Hon'ble Supreme Court held that Article 31 of Limitation Act is in almost identical terms with clause 6 of Article III of Schedule to Carriage of Goods by Sea Act (XXVI of 1925) therefore, in view of large number 'of decided cases, limitation for filing of the suit for compensation will start, only when Railway authorities, either refuse, or express its inability to give delivery. It was further held that there is consensus of opinion on the point in pre‑partition India and after partition, the same view was expressed in West Pakistan High Court in case of Firm Muhammad Siddiq and Muhammad Din v. Federation of Pakistan, judgment delivered by SA. Rehman, Chief Justice and A.R. ‑ Changez, Judge, whereby they cited a number of cases, however, in these cases decisions do not explain the basis on which the conclusion could be reached, as Article 31 itself does not speak either of refusal or of inability to deliver but all these decisions are shown to be correct on the ground that in these cases there was correspondence going on between the carrier and the consignee and the carrier was willing to give and consignee was willing to take delivery so there was impliedly an extension of time till there was refusal to give delivery or expression of inabilitv to do so. (v) PLD 1966 Kar. Page

253. Gulzar Ahmad v. Sind Punjab Goods Transport Company. In this case, it was held that calculation of reasonable time for determining period of limitation from date of consignment of goods can be considered keeping in view the date of despatch from a particular place, date of arrival at place and when the goods were placed in deliverable position. The expression "when the goods ought to be delivered" used in Article 31 of Limitation Act, means, that a consignee must be fixed with the knowledge that the goods are ready for delivery or that there is no likelihood to get its delivery so that he may be placed in a position to file a suit for compensation without being met by a plea that the suit was premature. Such event can only happen, when carrier expresses its inability to deliver or refuses to deliver goods. (vi) PLD 1972 Quetta 58: Province of West Pakistan through Vice Chairman, West Pakistan Railway (Headquarter ) Lahore v. Ch. Muhammad Ibrahim. In this case distinction between Articles 30, 31 and 115 of the Limitation Act, was discussed and it was held that Article 115 being general and residuary would be applicable only when no other article is applicable and under Article 30 the onus is upon the carrier to see when actually the goods or part of consignment could be said to have been lost or injured and in that case carrier is under obligation to show as to how the goods were dealt with in all possible stages as long as they were in its custody, whereas under Article 31 time would run from the date when the goods are to be delivered in case of non‑delivery or delay in delivering the goods, and if there is no contract about the delivery then the period of one year would be calculated from the expiry of a reasonable time within which the goods ought to have been delivered having regard to the circumstances of the case and the conduct of parties. In view of above discussion, it was held that the terminus a quo of limitation under Article 31 can be considered from the time when a definite refusal or declaration of inability to deliver the goods has been made by the carrier and the cause of action in such a case would arise when the owner of the goods is made aware that there would be no further delivery. In this reported case 75%o of the onions booked at Quetta Railway Station for Rawalpindi were found damaged and rotten and a claim to that effect under section 77 of the Railways Act was preferred which was rejected on 8th of March, 1966 as such, a suit was filed on 7th of March, 1967 claiming compensation towards the damages at Rs.2,709.75. The Civil Judge dismissed the suit. However, in appeal District Judge reversed the judgment and Second Appeal was filed before this Court wherein in view of above discussed principle it was held that delivery of the. onions was taken by consignee on 12th November, 1965, whereas suit has been filed on 7th of March, 1967, as such, suit was time‑barred. (vii) 1983 C L C 888: National Insurance Corporation v. Shipping Corporation. In this case the Hon'ble Single Judge of Sindh High Court while discussing distinction between Articles 30 and 31 of the Limitation Act. held that a suit for recovery of compensation for the non‑delivery of the goods is governed under Article 31, according to which, limitation is one year which starts running from the date when the goods ought to be delivered and normally the goods are to be delivered at the vessel when it calls at the port of discharge but situation may arise when this date may not be treated as the date from which the period of limitation starts running. Where time of delivery is specified in the contract of carriage but when no such time has been specified the delivery should be effected within a reasonable time. However, determination (if reasonable time shall depend on facts and circumstances of each case. Difficulty has arisen in determining dale of delivery where time of delivery has not been specified and parties have entered into correspondence and negotiation and the carrier has asked for time to make enquiries or searching the goods. In such case the lime shall be computed from the date when carrier informed that the goods have been lost or that they are unable to deliver the goods. This is also because the carrier's such correspondence extends the time of delivery at a future date. (viii) 1985 CLC 360: National Insurance Corporation v. P.N.S.C. The Hon'ble Single Judge of Sindh High Court held that point of limitation for filing suit for compensation would be the date on which the consignee had noticed that delivery cannot be given to him therefore, from this date, within one year suit can be filed. (ix) 1987 CLC 961: Yousaf & Co. v. Oriental Steam & Co. In this case expression "when the goods ought to be delivered" used in Article 31 of Limitation Act was discussed and it was held that time would start running either from the date when the trust being statutory bailee and Agent of Carrier had issued short Landing Certificate to Consignee or from the date when claim of compensation was finally refused by carrier and not from the date when vessel carrying goods arrived at port. (x) 1987 MLD 698: Pakistan National Insurance Corporation v. Pakistan National Shipping Corporation. In this case Sindh High Court while interpreting Article 31 of Limitation Act declared that time prescribed for filing of the suit, is one year when the goods ought to be delivered; and this expression i.e. "ought to be delivered" has reference to date on which Consignee had notice that goods could be delivered to him and suit by plaintiff not brought within one year from date when short landing Certificate was issued by port trust, the suit would become clearly beyond time. It was further held that an agreement between parties for extension of period of limitation would not be binding and particularly when the extension was agreed to by parties without prejudice to their rights as such, such agreement could no provide any help to plaintiff for extending the time in filing of the suit, (xi) 1988 CLC 627: National Insurance Corporation v. M/s. The Halcousis Co. and 2 others. In above case Single Judge of Karachi High Court, while placing reliance on case of Yousaf and Co. v. Oriental Steam Co. reported in 1987 CLC 961 decided that limitation period of one year as prescribed in Article 31' for institution of suit against carrier for compensation for short delivery of goods would start running from the date when consignee's claim of compensation was finally refused by carrier and not from the date when Vessel/goods arrived at Port In this judgment reliance was also placed on the case Abdul Jalil Chaudhry v. Mohammadi Steamship Co. Ltd. and others reported in PLD 1961 SC 340 and the case of National Insurance Corporation v. P.N.S.C. reported in 1985 CLC 360. (xii) AIR 1956 Calcutta Page‑390: Darjeling Himalayan Railway Company Limited and others v. Jatomal Bhojraj and another. In this case provisions of section 77 relating to notification of claims to refusal of over charges and to compensation for losses was discussed and it has been observed that word loss in above‑quoted section, includes loss by the carrier as also to the owner whether for misdelivery or for non‑delivery. However, request for enquiry and for early delivery of the goods which could not be traced cannot be taken as notice of claim for compensation. In the context of Article 31 of Limitation Act, it was held that when a substantive portion of the consignment has been delivered on a particular date that date would be the date when the remaining portion of the consignment ought to have been delivered, as such, the suit should have been filed within one year from this date and if a suit has been filed beyond period of one year that would be barred by limitation. (xiii) AIR 1960 Orissa p‑119: Balasore Textile Distributors Association v, Indian Union (B.N. Rly.) and another. In this case, the goods were booked in one wagon and that wagon duly arrived at the place of destination on a specified date. Short delivery was noticed only on that date. In all further correspondence with the Railway administration the plaintiff‑owner never demanded the delivery of goods and the Railway never held out any hopes that these would be traced out and duly delivered to the claimants. The Railway while acknowledging the claim sent by the plaintiff replied to the effect "that the matter is receiving attention." In view of these circumstances, it was decided that in cases of non‑delivery of goods consigned to Railway either m whole or in part, if in to subsequent correspondence with the claimant the Railway held out hopes, to him that the goods will be traced out and duly delivered then time under Article 31 of Limitation Act, will run from the date on which, the Railway finally declined to deliver the goods.

13. The connotation. "ought to be delivered" has not been defined anywhere under the law of limitation, however, according to plain and ordinary meaning it referred to the date and time when the goods should have been delivered to consignee. The date and the time can be determined on the basis of Contract of carriage namely Railway Receipts etc. executed between parties at the time of booking of goods. If in such contract time is mentioned then the goods shall be delivered on the particular date, but if the goods are not delivered upto stipulated time then within one year, the suit for compensation shall be instituted. There could be a contract of carriage in which, the date and time is not specified for purpose of delivery of goods and claimant calls upon the Carrier for the delivery of goods and in pursuance of such approach, the carrier has entered into correspondence and finally refuses to deliver the goods. In such type of cases, time shall run for filing of suit for compensation from the date when the final refusal has been made by the carrier. There would be yet another type of case, in which, no implied or express contract exists between the parties, mentioning the date and time when the goods shall be delivered therefore, in such type of cases, on non‑delivery of goods the period for counting limitation would be after the lapse of reasonable time when goods "ought to have been delivered" from the place of despatch to the place of destination. In the case of Abdul Jalil v. Muhammadi Steamship Co., reported in PLD 1961 SC 340, it was held that under Article 31 of Limitation Act., the period of limitation starts only when the carrier either refuses or express its inability to give delivery of goods. It was further held that unfortunately the decisions do not explain the basis on which such conclusion can be based. For reference relevant para is reproduced hereunder:‑ "We may point out that Article‑31 of the Limitation Act is in almost identical terms with clause‑6 and we see no reason to place on this clause an interpretation different from that which has been placed on Article‑

31. There are a large number of decisions under Article 31 wherein it has been held that limitation starts only when the Railway authority either refuses, or express its inability, to give delivery. There was almost a consensus of opinion on the point in pre‑Partition India and after Partition the same view was taken in West Pakistan High Court vide Firm Muhammad Saddiq Imam Din v. The Federation of Pakistan PLD 1956 Lah. 1093, a decision of S.A. Rehman, CJ. and A.R. Changez, J., where a number of cases are cited. Unfortunately these decisions do not explain the basis on which this conclusion could be reached, for Article‑31 does not speak either of refusal or of inability to deliver, but all these decisions can be shown to be correct on the ground that in these cases there was correspondence going on between the carrier and the consignee and the carrier was willing to give and the consignee was willing to take delivery, so that there was impliedly an extension of time till there was refusal to give delivery or expression of inability to do so."

14. In another judgment from Indian jurisdiction, reported in AIR 1962 SC‑1716, the relevant Article of Limitation Act. i.e. Article 31, was dealt with in a very exhaustive manner. However, for benefit the following relevant portion is reproduced as under:‑ "5". Two lines of reasoning seem to have governed the decisions of various High Courts on the interpretation of these words in the third column of Art.

31. The first is based on the consideration that it was for the railway to prove what time ought to be taken for the delivery of the goods and therefore limitation can only start when the railway says finally that it cannot deliver the goods. The second line of reasoning seems to be based on the principle of estoppel and is to the effect that where the railway enters into correspondence end says that efforts are being made to trace the goods the railway would be estopped from pleading that time began to run from sometime anterior to the period before the correspondence on the question came to an end. It may however be noticed that though the majority of the decisions follow these two lines of reasonings and hold that time begins to run only when the railway finally refuses to deliver the goods, here and there a dissident note has also been struck. We shall consider some of these cases later. "

6. Let us first see what these words in Art. 31 mean on a plain grammatical construction. It would be noticed that Art. 31 as it now stands after the Limitation Acts of 1877 and 1908, governs two classes of cases, namely, (i) where there has been no delivery of goods and (ii) where there has been delay in delivery of goods. In both classes of cases the time begins to run from the date when the goods ought to be delivered. These words therefore in column three of the Article must have a meaning which will apply equally to the two situations, envisaged in column one. Whether there has been non‑delivery or there has been delay in delivery, in either case limitation would run from the date when the goods ought to be delivered. Now it is not in dispute that if there is a term in a contract of carriage fixing when the goods have to be delivered that would be the time "when the goods ought to be delivered" within the meaning of the words used in the third column of Art.

31. The difficulty however, arises in that class of cases where there is no term in the contract of carriage, whether express or implied, from which the date on which the goods have to be delivered can be inferred. It is in these cases that the question of interpretation of the words in the third column of Art.31 seriously arises. But these words can only mean one thing whether it is a case of late delivery or of non‑delivery. Reading the words in their plain grammatical meaning they are in our opinion capable of only one interpretation, namely that they contemplate that the time would begin to run after a reasonable period has elapsed on the expiry of which the delivery ought to have been made. The words "when the goods ought to have been delivered" can only mean the reasonable time taken in the absence of any term in the contract from which the time can be inferred expressly or impliedly in the carriage of goods from the place of despatch to the place of destination. Take the case where the cause of action is based on delay in delivering the goods. In such a case the goods have been delivered and the claim is based on the delay caused in the delivery. Obviously the question of delay can only be decided on the basis of what would be the reasonable time for the carriage of goods from the place of despatch to the place of destination. Any time taken over and above that would be a case of delay. Therefore when we consider the interpretation of these words, in the third column with respect to the case of non‑delivery, they must mean the same thing, namely, the reasonable time taken for the carriage of goods from the place of despatch to the place of destination. The view therefore taken by some of the High Courts that the time begins from the date when the railway finally refuses to deliver cannot be correct, for the words in the third column of Art. 31 are incapable of being interpreted as meaning the final refusal of the carrier to deliver. We may in this connection compare the language used in the third column of Article 31 with certain other Articles of, the Limitation Act which will show that where the legislature intended that time should run from the date of refusal it has used appropriated words in that connection. For example, in Article 18, which provides for a suit for compensation against Government when the acquisition is not completed, the time begins to run from "the date of the refusal to complete." Similarly, in Art. 78 which provides for a suit by the payee against the drawer of a bill of exchange which has been dishonoured by non‑acceptance, time begins to run from "the date of the refusal to accept". Again in Art. 131 which provides for a suit to establish a periodically recurring right, the limitation begins to run "when the plaintiff is first refused the enjoyment of the right. " Therefore if the legislature intended that in case of non‑delivery, the limitation would start on the final refusal of the carrier to deliver, such a case would have been provided for by a separate Article and we would have found appropriate words in the third column thereof. The very fact that Art.31 deals with both cases of non‑delivery of the goods and delay in delivering the goods shows that in either case the starting point of limitation is after reasonable time has elapsed for the carriage of goods from the place of despatch to the place of destination. The fact that what is reasonable time must depend upon the circumstances of each case and the further fact that the carrier may have to show eventually what is the reasonable time for carriage of goods would in our opinion make no difference to the interpretation of the words used in the third column of Art.

31. Nor do we think that there could be generally speaking any question of estoppel in the matter of the starting point of limitation became of any correspondence carried on between the carrier and the person whose goods are carried. But undoubtedly, if the correspondence discloses anything which may amount to an acknowledgment of liability of the carrier that will give a fresh starting point of limitation. As we have said already, the words in the third column refer to reasonable time taken for the carriage of goods from the place of despatch to the place of destination and this reasonable time generally speaking cannot be affected by the subsequent conduct of the parties. We are therefore of opinion that the answer given by the Full Bench in the case of Aminchand Bholanath CA. No. 97 of 1949 D/‑ 2‑5‑1956: (S) AIR 1957 Punj 49) (Supra) that "the limitation in such cases starts on the expiry of the time fixed between the 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" is correct."

15. The instant case falls in a category where there was no mention of date and time for delivery of goods to defendant, at the place of destination i.e. Kharian. In such view of the matter the respondents were legally bound to institute suit within one year, from the lapse of reasonable time. In order to determine the reasonable time in the present case, it is essential to refer to evidence of PW Mohammad Sharif Opel son of Mian Imam Din. This witness stated that a wagon was loaded with coal bearing No.75357 from Kuchlak Railway Station on 3‑3‑78 in pursuance of R.R.No. 064950 which reached at Kharian Railway Station on 27th of March, 1978, delivery whereof was given to Noor Mohammad and another wagon No.70069 booked on 29‑8‑79 from Samuggli Railway Station reached at Kharian on 20‑9‑78 and delivery whereof was given to Noor Mohammad by Imam Din Station Master on 22‑9‑

78. Similarly another wagon No.65734 was booked from Sammuggli Railway Station on 8‑10‑1978 for Kharian vide R.R.No. 800752 and delivery whereof was given to Noor Mohammad on 9‑10‑1978 and another wagon No.60989 was also booked from Samuggli to Kharian on 20‑9‑1978 vide R.R.No.800881, this wagon reached Kharian on 14‑10‑1978 which was delivered to Noor Mohammad on 15‑10‑1978 and wagon No.43754 booked from Sibi to Kharian on 18‑11‑1978 vide R.R.No.829379 which reached at Kharian on 15‑12‑1978 and the delivery whereof was given to Noor Mohammad on 20‑12‑1978.

16. All the wagons as mentioned above, have reached in the month of December, 1978 at the place of destination therefore, the respondent was legally bound to institute a suit within one year, i.e. up to December, 1979, whereas present suit was instituted in the Court on 9‑2‑1981.

17. The counsel for respondent contended that a notice dated 6‑12‑1978 was issued to the General Manager, Pakistan Railways, which was duly received by him, but no reply was given, therefore, respondent had to wait till the reply of the notice sent to Railway authorities. We have examined this notice, the contents whereof indicate that the case set up by the respondent was that within a period of fortnight the wagons are not reached on the place of destination the plaintiffs has right to demand compensation of the amount, details whereof were given m notice. It is respondent's own case that if wagons will not reach Kharian Railway Station, within the stipulated time as provided in the notice referred to above, suit shall be filed for compensation, but surprisingly after the lapse of this period instead of instituting the suit, respondent kept on waiting for another long period unnecessarily therefore, this notice cannot render any help to respondent for seeking condonation in filing the suit with delay.

18. Learned counsel for plaintiff further argued that plaintiff‑respondent had been approaching Railway authorities for redress of grievance by issuing notice and finally last notice was sent under section 80 of Civil Procedure Code, to Railway department on 19‑7‑1980 and a period of two months was mentioned therein for the redress of grievance, and because in spite of lapse of period as mentioned above, the grievance was not redressed i.e. compensation in the sum of Rs.58,121 was not paid therefore, suit was brought within the period of one year from the date of expiry of two months period as mentioned in the notice.

19. This argument of learned counsel appears to be devoid of legal force as the law i.e. Article 31 of the Limitation Act does not contemplate for sending a notice under section 80, C.P.C., nor provides that the time shall start running from the date of expiry of period mentioned in the notice. The plaintiff‑respondent in fact in order to cover the period of limitation has got issued notice through counsel therefore, such type of notice will not furnish basis for condoning delay in filing of the suit.

20. Learned counsel lastly contended that the Railway department has not notified the amount of the loss accrued to plaintiff due to non‑delivery of goods, under section 77 of the Railways Act therefore, plaintiff had to wait till, the time such compensation or the loss was notified. We failed to associate ourselves with this contention of learned counsel because such notification is to be issued by the Railway authorities in cases where it has been acknowledged that the loss has been accrued to the owner of the goods, due to fault of Railway Department. As in the present case obviously according to the Railway Department, no loss has accrued to plaintiff therefore, it was not necessary to issue the Notification under section 77 of the Railways Act. In fact the grievance of respondent appear to be that Noor Muhammad who is the Coal Agent has succeeded in obtaining the delivery without depositing the amount in the bank but the fact remains, that plaintiff himself issued directives to him for taking delivery of the goods at Kharian and if the amount has not been deposited by him in the bank the suit should have been filed against Coal Agent for recovery of the amount. In this behalf para. 3 of the plaint is relevant which is reproduced hereunder:‑ "

3. The plaintiff sent intimation to Ch. Noor Muhammad, Coal Agent Dinga Road, Kharian and sent to him the Trade Invoices asking him to deposit the value of the goods in the banks at Kharian and get the railway receipts released from the banks to enable him to take delivery of coal loaded in abovesaid wagons from Station Master Kharian Station." In view of above discussion, it is abundantly clear that the plaintiff had no cause of action for filing of the suit after one year from the date when the wagons had reached at Kharian and delivery was taken by their Coal Agent. As the suit appears to be barred by limitation being filed beyond stipulated period provided under law therefore, the decree passed by trial Court, is not sustainable. Resultantly the appeal is accepted and judgment/decree dated 31st of December, 1989 passed by District Judge (Ad hoc), Quetta is set aside. Parties are left to bear their own costs. AA./395/Q Appeal accepted,