P L D 1960 Dacca 321 (PLP)

KHAN, J.‑This appeal arises out of a suit filed by the plaintiffs for recovery of compensation from the defendants for rash and negligent act of the serang and crew of the steamer Alwar belonging to the defendants.

2. The plaintiff's case, as set out in the plaint, is as follows: On 12‑12‑50, a country boat of the plaintiffs, laden with about 3,500 maunds of fire‑wood, lay at anchor at night‑fall, below the Chalna Station towards the west bank of Chunkuri river. A crew of the said boat was on sentry duty and the other crews were sleeping. They kept a hurricane light burning on the top of the mast of the boat. At about 2 a.m. in that night, a steamer called Alwar with two flats on two sides was coming from Calcutta side towards Khulna and another steamer was proceeding to Calcutta from Khulna. As soon as the steamer Alwar was proceeding towards the boat, the boat‑men of the boat woke up and raised alarm asking the serang and the crews to stop the steamer but the serang and the crews of the steamer paid no heed to it and consequently the steamer of the defendant dashed against the country boat of the plaintiffs with the left side of her fiat and, as a result of the impact, due to the rash and negligent act of the serang, plaintiffs' boat sank with all its contents including a dinghy‑boat which was attached to it and no trace of the boat nor of the contents thereof could be found. It is alleged by the plaintiffs that had the defendants' serang taken due care, the accident could have been easily avoided and, as a result of the rash and negligent act of the serang, the plaintiffs have suffered a loss of about Rs. 15,000, being the price of the wood, the cost of the boat, the value of the other contents as mentioned in the plaint Schedule and, as such, the defendants are liable to pay ‑ the said sum by way of compensation, as the sinking of the plaintiffs' boat with its contents, etc., was due to gross negligence and rashness of defendants' serang in the matter of steering. Plaintiffs, therefore, laid their claim at Rs. 15,000.

3. Defendants Nos. 1 and 2 contested the suit by filing two separate written statements. They alleged that the steamer Alwar belongs to defendant No. 2 and as such, the plaintiffs have no cause of action against defendant No. 1 and the suit is liable to be dismissed against it. Defendant No. 2 contends that the suit is barred by limitation ; that the boat of the plaintiffs was anchored fore and aft with two anchors obstructing the navigable channel and did not exhibit any light as prescribed by the rules and the crew of the boat also did not raise any alarm ; that, as soon as the serang saw the boat, he stopped the brake and put it to full astern giving the necessary sound signals as prescribed by 'aw but due to the flow tide and the fact that the vessels were too close before action was taken, it was impossible fully to avoid the boat within the shortest time available to the serangy and the foreside of the flat Rosa struck the country boat and, owing to the over‑loaded condition of the boat, she capsized being swamped by the wash of the steamer's paddles going astern and, as such, the boat did not capsize due to any rash and ‑ negligent act of the serang of the steamer but it was due to the negligence of the boat‑men in not showing any light as required by the navigation rules;

4. Defendant No. 2 has further contended that the claim is highly inflated and absurd.

5. Upon these pleadings, the following issues were framed by the learned Subordinate Judge :‑

(1) Is the suit maintainable in its present form ? (2) Is the suit barred by limitation ? (3) Was there any negligence or rashness on the part of the steamer Alwar ? (4) Is the claim excessive ? (5) What relif, if any, are the plaintiffs entitled to ?

6. The learned Subordinate Judge, on a consideration of the evidence on record, has found that there was negligence on the part of the crew of the steamer Alwar and that they could have easily avoided the accident had the serang of the steamer been careful from before and that no question of contributory negligence arises in this case. He has further found that the suit is not barred by limitation as Article 49 of the Limitation Act is applicable to this suit and that the claim is excessive. On these findings, he decreed the suit in part against defendant No. 2 for Rs. 6,400 with proportionate costs and dismissed the suit against defendant No. 1 without any costs. Hence this appeal by defendant No. 2.

7. Mr. P. C. Pakrashi, the learned Advocate appearing on behalf of the appellant, has contended before us that the Court below ought to have held that the suit is governed. by Article 36 and not by Article 49 of the Limitation Act and ought to have dismissed the suit as barred by limitation ; that on the facts and on the evidence, the learned Subordinate Judge has erred in holding that the boats were sunk on account of the; impact due to the negligence of the serang of the steamer Alwar and he ought to have held on the evidence and the facts and circumstances that the impact was due to carelessness and negligence of the boat‑men and that the learned Subordinate Judge ought not have awarded compensation on the basis of the price of fire‑wood which the plaintiffs would have got by selling the same at Bhatiapara.

8. Now as to the question of limitation, the learned Subor dinate Judge has observed as follows: "The alleged occurrence took place on 12‑12‑50 and this suit was filed on 11‑12‑

53. The plaintiffs' contention is that the suit is governed by Article 49 of the Limitation 'Act. Article 49 reads as follows:‑ for other specific movable property, or for compensation for wrongfully taking or in juring or wrongfully detaining the same'. In this particular case, the property alleged to have been injured belonged to the plaintiffs and the same was in custody of some persons other than the plaintiffs. The defendants' contention is that the case is governed by Article

36. Under this Article, the period of limitation is 2 years and relates to suits for compensation for mal‑feasance, non-feasance or mis‑feasance independent of contract. This Article is a general one for suits for com pensation for torts which are not specifically provided for elsewhere in the Act. In my view, Article 49 makes a specific provision and so, the general Article, namely, Article 36, is not applicable. The suit is not, therefore, barred by limitation."

9. In our opinion, the learned Judge was clearly in error in applying Article 49 of the Limitation Act to this case. Article 36 of the Limitation Act, as contended by the learned Advocate for the appellant, will apply to this case. Article 36 runs as follows :‑-- "For compensation for any mal‑feasance, mis‑feasance or non‑feasance independent of contract and not herein specially provided for, two years when the mal‑feasance, misfeasance or non‑feasance takes place". Thus this Article prescribes for limitation of two years to suits "for compensation for any mal‑feasance, mis‑feasance or non feasance independent of contract and not therein specially provided for." This Article is a general Article. It refers to actions which may be taken on account of the commission of some act which is in itself unlawful "mal‑feasance", or being the improper performance of some lawful act "mis‑feasance", or the omission of some act which a person is by law bound to do "non‑feasance." It is a general Article for suits for compensation and omissions commonly known as torts, that is wrongs indepen dent of contract, and which are not provided for by other Articles. Thus Article 36 refers to actions on torts or such wrongs as are distinguishable from breaches of contract. That this Article is applicable to a case like the present one is supported by the decision‑ reported in the case of Essoo Bhayaji v. The Steamship Savitri (I L R 11 Bom. 133). In that case, plaintiff's ship was lost at sea on the 5th January 1883, owing to a collision which took place on that day with steamship Savitri of the defendant. On the 7th January 1886, the plaintiff filed a suit to recover the sum of Rs. 5,500, which he alleged to be the value of the Pattimar, and a further sum of Rs. 200, belonging to him, which was on board at the time of the wreck. It was held in that case that both the vessels were equally to blame for the collision and that the owner of each vessel was to bear half the loss as occasioned by the collision. The plaintiff, therefore, reduced his claim to half and the suit having been filed after two years from the date of the collision the question arose whether the suit was barred by limitation. It was contended on behalf of the plaintiff that the law allows him three years within which to bring his suit for a cause of action of this nature. The defendant contended that the plaintiff was bound to commence the suit within two years after the collision. It was held: "A suit to recover damages for the loss of a ship caused by collision at sea is an action of tort founded upon the negligence of the defendant or his servants in the management of hi vessel, and must be brought within two years under the provisions of Article 36 of Schedule It of the Limitation Act, XV of 1877. Article 49 of Schedule II of the Limitation Act, XV, of 1877, applies only to suits in respect of property in the hands of some other person, and not to suits in respect of property in the plaintiff's own' possession, and the injury to property there mentioned is limited to cases of injury to property while in the custody of some person other than the owner. From the provisions of Articles 36 and 115 of Schedule II of the Limitation Act, XV of 1877, the intention of the Act appears to be that not more than two years should be allowed for bringing a suit founded on tort, except in certain well defined particular instances." At page 135 of the report, Fatran, J. has observed as follows: "The only Articles in Schedule II of Act XV of 1877 within which the case can be suggested to fall are Articles 36 and

49. Article 36 provides a limitation of two years to suits `for compensation for any mal‑feasance, mis‑feasance or non‑feasance independent of contract, and not therein specially provided for.' Article 49 provides a limitation of three years to suits `for other specific movable property, or for compensation for wrongfully taking or injuring or wrongfully detaining the same.' The time from which the limitation begins to run is, in each case, the same, namely, the time when the wrong complained of is done, and not, as in Article 48, the time when it becomes known to person wronged. The expression `other specific movable property' in Article 49 seems to be used in antithesis to the specific movable property referred to in Article 48 which prescribes a limitation of the same period of three years to suits `for specific movable property lost, or acquired by theft, or dishonest mis‑appropriation, or conversion, or for compensation for wrongfully taking or detaining the same' but fixes the period from which limitation is to run, at the time `when the person, having the right to the possession of the property, first learns in whose possession it is.' Compensation for injuring specific movable property of the latter description, curiously enough, is not provided for in Article 48, so that, in respect of injury to such property, the complainant is, apparently, thrown back upon the general provision of Article

36. I mention this as an instance to show how unsystematically the Schedule is framed. The words `malfeasance, mis‑feasance, or non-feasance independent of contract' used in Article 36 are of the widest import, and embrace all possible acts or omissions, commonly known as torts by English lawyers ; that is to say, wrongs independent of contract. For the sake of brevity, I use the expression `torts' throughout my judgment as the equivalent of the expression employed in Article

36. For torts, a two‑year period of limitation is thus provided as the general rule, subject to special exceptions contained in other Articles of the Schedule, as three years is the general rule in case of breaches of unregistered contracts (Article 115)". At page 137 of the report, Farran, J., has observed as follows: "What is the meaning of `specific movable property' as used in Article 49 ? The word specific applied to property in one's own possession is meaningless. In addition to its medical, natural history, and botanical meanings, Webster's Dictionary defines it as `tending to specify or make particular, definite, limited, precise.' All property in possession of an owner is in this sense specific, as well the corn in his barn as the horse in his stable. Lawyers use the words `specific property' in a different sense, viz., as equivalent to property to which you may demand the delivery in specie. Thus a specific legacy is a legacy 'which can only be satisfied by the delivery of the ' identical subject'. The phrase is only apt when the thing to which you are entitled is in the possession of some third party. It is in this sense, I think, that the word 'specific' is used in Article

49. Expanding the expression, the Article will read thus : 'For other property of which the owner is entitled to demand the return in speeie, or for compensation for wrongfully taking or injuring or wrongfully detaining such property.' Injury to property will thus be limited to injury to the property of another in the possession of the person in whose custody it is injured, and several provisions of the Article will be in their proper places as special exceptions to the general rule laid down in Article

36. The construction of a statute is to be made of all the parts together, and not of one part only by , itself. In civile est, nisi tota lege perspecta, unh aliqua particula ejus proposita, judicare vel responders. Such .a survey is always indispensable even when the words are the plainest for, the true meaning of any passage is that which best harmonises with the subject and with every other passage of the statute‑Maxwell on Statutes ; p. 35 ; Smith v. Bell 10 Maw

378. There is no difference between causing injury to a ship and causing injury to a carriage, or any other kind of movable property. A suit to recover compensation for damages caused by. a collision is an action of tort founded upon the negligence of the defendant or his servants in the management of his vessel. I decided the issue before me in favour of the defendants."

10. We are in respectful agreement with the above obser vation of Farran, J. Mr. Maksum‑ul‑Hakim, the learned counsel appearing on behalf of the respondent, has contended before us that Article 49 is applicable to this case and Article 36 is inapplicable. In support of his contention, he has relied on the decisions reported in I L R 22 Cal. 877 ; 25 Cal. 692 and A ( R 1934 Cal.

46. In the case of Surat Lall Mondal and others v. Umar Hazi and others referred to above, the plaintiffs brought a suit for damages for misappropriation of paddy grown on plaintiffs' land on the allegation that the defendants had wrongfully and forcibly reaped and misappropriated the crops, the defendants pleaded limitation of two years under Article 36 of Schedule II of the Limitation Act (XV of 1877). The Munsif negatived the plea of limitation raised by the defendants. The defendants appealed ; the District Judge dismissed the suit on the ground of limitation holding that the suit was barred under Article 36 of the Limitation Act. An appeal was taken to the High Court where Mr. Justice Ghose and W. Justice Rampini differed in their opinion on the question of limitation. Rampini, J., held that the suit was barred by limitation under Article 36 of the Limitation Act, while Ghose, J. held that Article 49 of the Limitation Act would apply to the facts of the case and, as such, the suit was not barred by limitation. So, the appeal was referred to a third Judge, namely, to Norris, J., who held (without expressing any opinion on the applicability or otherwise of Articles 39, 49 and 109) that all the conditions existed in this case to bring it within Article 48 of Schedule 11 of the Limitation Act.

11. Mr. Maksum‑ul‑Hakim has urged before us that the ruling reported in 11 Bom. was overruled by this decision. We are, however, unable to accept this contention. It appears that the learned counsel has mis‑read the judgment of Norris, J. Norris, J. has only referred to the case of Essoo Bhayaji v. The Steamship Savitri with respect to the meaning of the word 'specific' movable property as used in Article 49 as bearing the same meaning in Article

48. He has observed at page 882 of the report as follows: "I am of opinion that the suit falls under Article 48, which is as follows : 'For specific movable property lost, or acquired by theft, or dishonest misappropriation or conversion, or for compensation for wrongfully taking or detaining the same, three years from the time when the person having the right to the possession of the property first learns in whose possession it is.' The meaning of the words 'specific movable property' as used in Article 49 (and they must bear the same meaning in ' Article 48) was considered by Farran, J. in Essoo Bhayaji v. The Steamship Savitri. The learned Judge says: 'The word specific applied to property in one's own possession is meaning less. In addition to its medical, natural history and, botanical meanings, Webster's Dictionary defines it as tending to specify or make particular, definite, limited, precise. All property in possession of an owner is in this sense specific, as well the corn in his barn as the horse in his stable. Lawyers use the words 'specific property' in a different sense, viz. as equivalent to property of which you may demand the delivery in specie. Thus a specific legacy is a legacy which can only be satisfied by the delivery of the identical subject. The phrase is only apt when the thing to which you are entitled is in the possession of some third party. It is in this sense I think that the word specific is used in Article

49. Adopting this explanation, Article 48 would then read thus: 'For property lost or acquired by theft, dishonest misappro priation or conversion of which the owner is entitled to demand the return in specie from the person in whose possession it is or for compensation for wrongfully taking or detaining such property, three years from the time when the person entitled to demand the return of such property first learns in whose possession it is' ".

12. Thus it appears that Norris, J. did not dissent from the ruling reported in 11 Bom. The facts of the case decided by Norris, J. are quite distinguishable from the facts of the case of Essoo Bhayaji v. Steamship Savitri. In the Full Bench case of Maghun Jha and others v. Dolhin Golab Kuer and others (25 I L R Cal. 692) it has been held that a suit for damages does not come within the terms of Article 36 of Schedule II of the Limitation Act (XV of 1877) and that such a suit comes under Article 49 or 48, as the crops, after they bad been cut, come under the description of specific movable property. In the case of Arjun Kaibarta and others v. Monoranjan De Bhoumick and others (A I R 1934 Cal. 461) it has been held that the period of limitation for wrongful taking of fish is not different from that for a suit for damages for cutting and carrying away or misappropriating crops, or from a suit for compensation for wrongful removal of trees after they have been cut down ; and the proper Article is Article 49 of the Limitation Act. This case and the cases reported in 22 Cal. and 25 Cal. referred to above, relate to claim for compensation for damages for cutting and carrying away plaintiffs' paddy or plaintiff's fish from his fishery and misappropriating the same. These facts are quite distinguishable from the facts of the instant case. The facts of the instant case are on all fours with those of the case reported in 11 Bom.

133. So the rule of law laid down in that case is aptly applicable to the facts of the present case and, as such, we hold that the suit is barred under Article 36 of Schedule I to the Limitation Act (Act IX of 1908, as amended upto date). The decision cited by Mr. Maksum‑ul‑Hakim do not apply to the facts of this case at all. The accident in the instant case is an action for tort founded upon the carelessness and negligence of the defendant's servants in the management of his vessel. We, therefore, hold that the suit is clearly barred by limitation, Article 36 limiting the period to two years.

13. As the suit must fail on the ground of limitation, we do not think it necessary to enter into the merits of this case but, as Mr. Pakrashi has pressed us to give our decision on questions of fact, we propose to do so. [Discussion of evidence on facts omitted.]

14. In the result, the appeal succeeds on the ground of limitation.

15. The appeal is accordingly allowed. The judgment and decree of the learned trial Judge are set aside and the suit is dismissed as barred by limitation.

16. Parties are to bear their own costs in this appeal as well as in the Court below. AKBAR, J.‑I agree. K. B. A. Appeal allowed.