1991 PLP 818 (CLC)

S.H. Fani for Respondents. Date of hearing: 6th March, 1991. In continuation of what was observed on 3‑3‑1991, learned counsel for the respondents had placed on record the certified copies of the three depositions in the suit from which this revision application arises. I have gone through the same. The point urged by Mr. Choudhry Rashid Ahmed on behalf of the applicant is that the suit which was decreed at trial and concurrently on appeal was barred by limitation on the two scores; Firstly, no notice, as required in terms of Section 77 of the Railways Act, 1890, was given by the respondents‑plaintiffs and secondly, in terms of Articles 30 and 31 of the Limitation Act, either of which may be applied, the suit was likewise barred. As regards notice under Section 77 of the Railways Act, 1890, for damages or compensation, it is an admitted position that there was exchange of correspondence between the parties, reflected in Exhs. 8 to 11, produced from the side of the plaintiffs. In fact, letter dated 2‑8‑1967, addressed within about a month's time from the booking of the goods on 29‑6‑1967 and receipt of the consignment at Karachi on 2‑7‑1967, is admitted as per ground No.VI in the Memo of appeal riled by the applicant before the learned appellate Court, though in another context. It would thus seem that appropriate action was taken within the prescribed period of six months in terms of Section 77 ibid. Such question has been permitted t6 be urged even though it was not pressed at the trial and was argued only at the appellate stage. The next question pertains to the suit not being within one year either in terms of Article 30 or Article 31 in the First Schedule to the Limitation Act. The case of the respondents‑plaintiffs seemed to be initially that the consignment was not delivered to them even though several attempts were made to obtain delivery. Subsequently, it would appear that the goods were sent back to Lahore. At the same time, it has come up in evidence that during the relevant period, on account of rains, damage was caused to the goods. It is, therefore, difficult to say as to which of the above Articles in the Limitation Act specifically, applied to the suit. It could be that either or both of them were relevant though, perhaps, at different stages. However, it has been the case of the applicant‑defendant that it has always been ready and willing to deliver but the respondents‑plaintiffs avoided to take delivery. If that be so, Article 31 in the Limitation Act may not be specifically applicable since such Article is attracted only on refusal of or delay in making delivery. Furthermore, it is also the case of the applicant‑defendant that the goods were not even damaged. In that event it would be difficult to apply Article 30 of the Limitation Act either, because that gets attracted only in the event of loss or injury to the goods. If this be so, the residuary Article 115 in the Limitation Act, pertaining to contracts, may be appropriately invoked. The suit was thus in time. In this situation, it becomes manifest that the question of limitation was not all that crucial and it were the merits of the controversy which really mattered, to which both the learned Courts duly addressed themselves and findings in relation to which do not suffer from any jurisdictional error. In view of the above, I find no cause for interference. Dismissed. H.B.T./1‑160/K Petition dismissed.