P L D 1964 (W (PLP)

The short point arising for decision in this appeal is, whether the learned lower appellate Court was justified in ordering a remand of the case in the following words: "As I go through the plaint, I find that the case is necessary to be remanded for its retrial on issue No.

1. It was clearly stated in paragraph 7 of the plaint that the cause of action had arisen to the plaintiff on 11‑6‑1952. In the written statement it was pleaded that the suit was beyond limitation. It was in the replication that the plaintiff averred that the limitation started running against him on 7‑8‑1954. He did not, however, put in any application for the amendment of the plaint in order to be able to state in the amended plaint to consider that the date of the cause of action, as stated in the plaint, should have been taken as the real date on which the cause of action accrued to the plaintiff and not the date which had been stated in the replication. The plaintiff could no doubt ask for the amendment of the plaint and it was for the trial Court to decide whether or not the amendment should, under the circumstances, be allowed. The date "7‑8‑1954," as stated in the replication could not have been taken as the date on which the cause of action arose to the plaintiff without an order of the amendment of the plaint. A study of the judgment of the trial Court on issue No. 1 shows that it was assumed there that the cause of action had arisen to the plaintiff on 7‑8‑1954. Such an assumption was not warranted from a reading of the plaint. I do not, therefore, express any opinion on the point of limitation and remand the case to the trial Court under Order XLI, rule 23‑A, C. P. C. with a direction that the plaintiff shall be granted an opportunity to put in an application for the amendment of the plaint and only a reply try such an application being received from the defendant, the application shall be decided one way or the other. The case shall, thereafter be decided according to law,"

2. The facts are that on the 5th of June 1952 the plaintiff respondent consigned two cases containing linen by parcel way Bill No. 684650 (not R. R as mentioned in the judgments of the Courts below) with the North‑Western Railway (the appellant) at Lahore Railway Station for delivery to the consignor at Karachi City. The goods reached the destination on the 9th of June 1952 and as the packages were found to have been tampered with; open delivery was allowed by the Railway authorities to the consignee on the 11th of June 1952, when a short deliver certificate (Exh. P. 9) was given by the appellant's servants wherein the value of 10 Thans short delivered was assessed at Rs. 2,013‑4‑

6. Thereafter, a claim under section 77 of the Railways Act was preferred by the respondent and after exchange of several letters between the parties wherein demand was made every time by the respondent and the appellant replying that the matter was under inquiry and investigation the respondent was constrained to institute a suit for the recovery of the amount of Rs. 2,013‑4‑6 on the 26th of February 1955, after having served a notice under section 80 of the Civil Procedure Code. Various pleas were taken which need not detain us any longer as the same are clear from the issues framed by the trial Court:‑ (1) Is the suit time‑barred ? (2) Were not all the notices under section 77 of the Railways Act and section 80, C. P. C. validly served ? (3) Has the plaintiff no locus standi to sue the defendant ? (4) Has this Court no jurisdiction to try the suit ? (5) Whether the defendant acted with negligence in carrying the goods in suit ? (6) If issue No. 5 is decided in the affirmative to what damages is the plaintiff entitled. (7) Relief.

3. The first Court found all the issues for the plaintiff respondent and decreed the suit. The Federation of Pakistan (now Pakistan) preferred an appeal before the Additional District Judge, Lahore, who passed the aforesaid order of remand with respect to the question of limitation under issue No. 1.

4. In the present appeal before this Court the learned counsel for the appellant has urged that since the plaintiff had preferred a claim for the value of the goods short delivered on the 11th of June 1952, when open delivery had been granted to the consignee, the suit brought on the 26th of February 1955, was beyond time and the same should have been dismissed by the trial Court under section 3 of the Limitation Act. He argued that the provision of law applicable in the case was Article 30 of the Limitation Act and not 31, in view of para. 7 of the plaint, which reads as under:‑ "That the cause of action arose at Lahore, first on the 5th of June 1952, when the goods were despatched and then on 11th June 1952, when open delivery of the goods was received by the plaintiff, short of the goods in dispute. Therefore, the Lahore Courts have jurisdiction to deal with the case. The defendants have their Head Office at Lahore." and that the terminus a quo mentioned as 7‑8‑1954 in replication did not save the suit from dismissal being beyond time. He further maintained that the remand was illegal under the circums?tances of the case. In support of his arguments that the case was governed by Article 30 of the Limitation Act, the learned counsel has relied on an unreported judgment of their Lordships of the Supreme Court in River Steam Navigation Company Limited and two others v. Messrs Dada Limited, Civil Appeal No. 27‑D of 1960, delivered on the 21st of April, 1961, in which the decision of the Dacca High Court dated 1st May, 1959, in Letters Patent Appeal No. 9 of 1958 was reversed. In that case the plaintiff respondent M/s. Dada Limited, delivered to the appellants on 11th January 1951, one thousand bags of rape‑seed for being carried from Chittagong to Khulna. On the 25th of January, 1951, the respondent took delivery and 274 bags were found torn and re‑sewn and the consignment was delivered short by 15 maunds and 1 seer. The respondent wrote to the appellants bringing the shortage to their notice and was formally informed in reply that the matter was being inquired into. Further letters having failed to elicit reply from the appellants, the respondent brought the suit on the 12th of June 1952, for damages. In the High Court at second appeal stage, the learned Single Judge reversed the judgment and decreed the suit and the Letters Patent Appeal also failed. In the Supreme Court their Lordships after reviewing the position of the case‑law on the question of limitation observed: " The result of what has been stated above is that if from the words or conduct of the parties it appears that the carrier was willing to give delivery and the consignee was prepared to take delivery even after the expiry of that period within which the contract was originally to be performed limitation will begin to run only on the expiry of the further period agreed to between the parties. On this basis all those cases wherein it has been held that time will run only when the carrier either refuses or expresses his inability to deliver the goods are good law." Their Lordships further observed: " If the consignee is agreeable to take delivery at an extended date terminus a quo will be affected." On the facts of the case before their Lordships, they came to the conclusion that since in the plaint itself it is stated by the respondent that the goods bad been lost in transit by the appellants, Article 30 was applicable.

5. From the various documents on this record I find that as late as 26th June 1953 (Exh. P. 36) the appellant assured the plaintiff of delivery in the case, because it was categorically written in the said letter that the matter was under police investigation and a definite reply would be sent in due course. This could only mean that the question was not with regard to the price of the goods or authenticity of the Beejuck or genuineness of the claim preferred by the plaintiff but was with regard to the possibility to trace out the pilfered goods and delivery of the sane to the plaintiff. The correspondence that has followed thereafter does not point to the contrary and I follow with respect to the dictum of their Lordships of the Supreme Court, in the case cited by the learned counsel for the appellant that time will run only when the carrier either refuses or expresses his inability to deliver the goods and that when the carrier was willing to give delivery and the consignee was prepared to take delivery even after the expiry of that period within which the contract was originally to be performed limitation will begin to run only on the expiry of the further period agreed to between the parties. The learned counsel for the respondent was justified in maintaining that Exh. P. 7, the letter preferring claim for the value of the goods short delivered in no way suggests that the plaintiff had accepted for all times that the goods were lost and there was no hope of any subsequent delivery as the plaintiff was under a legal obligation to prefer claim under section 77 of the Railways Act and non‑compliance of the said provisions of law would have resulted in the plaintiff being non‑suited. To interpret Exh. P. 7 to mean that the plaintiff‑consignee was not prepared to take delivery, after the expiry of the period within which the contract was to be originally performed, will be unjustifiable. I find no force in this argument. I further hold that the appellant having held out a promise to give delivery at some future date and the consignee having agreed to take delivery at an extended date terminus a quo was affected and the time would start running only from the last and ultimate refusal of the carrier to deliver the goods.

6. No other point having been urged by the learned counsel for the appellant against the order of remand, the appeal fails and the same is dismissed with costs. The parties to appear before the District Judge, Lahore on 24‑3‑

64. The District Judge will extend the case to the competent Court for further proceedings. K. B. A. ??????????? Appeal dismissed.