P L D 1954 Lahore 634 (PLP)

KAIKAUS, J.‑This is a second appeal filed by the Federation of Pakistan against a decree in a suit for compen sation for non‑delivery of ten bags of black paper which were delivered to the railway at Rawalpindi for being carried to Karachi. The claim has been decreed in full. The sole point argued before us is that the suit is time‑barred. The plaint in this case was based on non‑delivery as well as loss. It is stated in para. No. 6 of the plaint that there was some correspondence between the plaintiff and the railway with respect to the delivery of goods and that up to the 6th of May 1949, there was no refusal on the part of the railway to deliver the same. It is further stated in the same paragraph that this was a case of loss of goods in transit and the cause of action accrued only when the railway finally said that the goods could not be delivered. We are to consider in this case whether the suit is within time either under Article 30 or 31 of the Limitation Act. I have already explained in Federation of Pakistan v. Muhammad Iqbal (P L D 1953 Lah. 460.), that in cases where the claim is or can be regarded as based on alternative causes of action, both the Articles have to be considered. I will first take up Article 31, that is, the one relating to non‑delivery. The terminus a quo under this article is the date "when the goods ought to have been delivered". I will first refer to the facts in so far as they have a bearing on such a date. These ten bags of black pepper were delivered to the railway on 19th of December 1947. The first letter of the plaintiff, which is on the record, is of the 24th of February 1948. It is not exhibited but is mentioned in para. No. 6 of the plaint and has been filed by the plaintiff. In this letter a claim has been made for a sum of Rs. 2,898 because the goods had not reached the destination although more than two months had passed. It is a simple claim for money and does not ask for delivery of goods. The next letter on the record is Exh. P. 2, dated 29th of February 1948. This is addressed to the General Manager, (Commercial), North Western Railway, Lahore. It states that ten bags of black pepper which had been despatched to Karachi City had not as yet reached their destination and asks for enquiries to be made into the matter. It then goes on to say that the price of the goods is Rs. 2,898 and in case they are not traced this amount should be paid. On 7th of April 1948, there is a letter by the plaintiff saying that the payment of his claim should be expedited. This letter too is not exhibited but is mentioned in para. No. 6 of the plaint and has been filed by the plaintiff. This letter of the 7th of April 1948, has been acknowledged in the letter of 11th of July 1948, Exh. P. 6, which is from the Divisional Superintendent, Karachi. It says, "such action as may be called for will be taken and you will be addressed again on the subject". On the 10th of July 1948, the plaintiff was asked to send his railway receipt in original. On the 4th of April 1949, a notice was sent by counsel for the plaintiff to the Chief Commercial Manager, North‑Western Railway saying that if the sum of Rs. 2,898 was not paid a suit would be filed. A reference was made to the‑letter of the 29th of February 1948, characterising it as a notice under section 77 of the Railways Act. For determining the point of time from which limitation is to run, we have simply to find out the date when the goods "ought to be delivered". I have already explained in Federation of Pakistan v. Muhammad Iqbal (supra), that these words have reference to the time when the contract for delivery ought to have been performed. In cases where no time for delivery is fixed it has to be performed within a reasonable time and limitation has to start when the reasonable time expires. Except when there is an extension of time under section 46 of the Contract Act or a novation of Contract under section 63, limitation will begin to run on expiry of reasonable time. In the present case the plaintiff had made a claim in his letter dated 24th of February 1948, for money. It is quite obvious that unless and until the reasonable time had expired and the plaintiff had become entitled to delivery, no question of compensation for non -delivery of goods arose. The plaintiff must be deemed to have admitted that the time for delivery had passed when he sent the letter of the 24th of February 1948. On the 7th of April 1948, he had again asked that the payment of his claim should be expedited. These two letters are, however, not exhibited and an argument can be put forward that if the defendant wanted to rely upon them he should have got them exhibited in the trial Court. There is no doubt that a party is entitled to accept and can get exhibited any document that is produced and relied upon by the other party. There is no necessity of proof in such case, but in this case the defendant did not accept in the lower Court the documents mentioned above, and it is now in the course of arguments before us that the learned counsel for the defendant wanted to take advantage of them. Under Order XIII rule 7 C. P. C. these documents ought to have been returned to the plaintiff as they had not been made evidence in the case. It will be proper, therefore, if I exclude these documents from consideration. However, the result so far as Article 31 is concerned is the same. If I exclude the letter of 24th February 1948, the first letter that was written to the railway by the plaintiff is that of 29th February 1948. It cannot be said that reasonable time had not expired by then. There is no doubt that time can be extended but that can be done before the expiry of the time that is either fixed or is reasonable under the circumstances. After the expiry of time there can be only a novation of contract. In that case the suit will be based on a new contract. In so far as the original contract for the delivery of goods is concerned after the expiry of the reasonable time limitation begins to run, so that on 28th of February 1948, time had already started. The letter of 29th of February 1948, makes an alternative claim and says that enquiries should be made and it is only in case goods could not be delivered that compen sation was asked for, and I would not regard this letter as definitely admitting that the plaintiff was entitled to compen sation at the time when he wrote the letter. But as I have already stated reasonable time had passed even before this letter was written. For the carriage of goods from Rawalpindi to Karachi two months would not in any case be less than reasonable time. A good many authorities have been cited by both parties with respect to the starting of time under Article

31. There are some cases holding that time runs when the plaintiff becomes hopeless or there is a definite refusal on the part of the railway to deliver the goods. I have explained the position in Federation of Pakistan v. Muhammad Iqbal (supra) and I have in brief reiterated it above. The article does not speak of refusal by the carrier nor does it refer to the time when the plaintiff becomes hopeless. There are some Articles in the Limitation Act which refer to refusal, for instance 78, 103 and

131. If the intention of the legislature was that time should run only from the refusal of the carrier to deliver it would have been quite easy to put in such words. The article simply refers to the time `when the goods ought to be delivered'. A proper way of determining "when the goods ought to be delivered" is to find out when the plaintiff could have filed a suit for compensation without being met by a plea that the suit was premature. From any date on which he could have filed such a suit and the suit could not have been dismissed on the ground that it was premature, time would begin to run. The plaintiff cannot have it both ways. He cannot say, "I would have the right to file a suit, but still the limitation would not begin to run". That would be to give him more than a year for filing a suit and that is not the intention of Article

31. There is no doubt that the attitude of the railway in putting off the plaintiff and not refusing delivery does raise a question as to whether it is proper that in the circumstances the suit should be held as time barred. The plaintiff brings it to the notice of the railway that goods have not been delivered and the railway simply says it is making enquiries. It has appealed to some learned judges that under the circumstances it is not proper for the railway on one hand to hold out hopes to the plaintiff and on the other to plead limitation. However, we have to decide on the wording and intention of the article. A debtor may go on orally saying to the creditor that he will pay the debt but that would not extend limitation. Similar is the case here. The attitude of the railway may be that they will still deliver the goods but that would not mean that the time within which they ought to have delivered the goods has not passed. I may also draw attention to the fact that the article applies not only to cases of loss but even to cases of delay in the delivery of goods. Iii case of delay for delivery of goods it should be obvious that the reference is oily to the original time for the performance of contract which may be either fixed or a reasonable time with respect to reasonable time there is one matter that needs explanation. It should be understood that reasonable time has no reference to the acquiescence of the plaintiff. It is a matter to be determined by external circumstances. All that we have to find out is the time that was reasonably required for the performance of the contract. In the present case we are to determine as to how much time the railway required for carrying goods from Rawalpindi to Karachi. It would make no difference that the plaintiff does not mind if the goods are delivered sometimes later than what is reasonable time. That attitude of his may affect the question of extension of time, but it does not in any way affect the original reasonable time As I have already stated, it is open to him to extend time with the acquiescence of the other party and in that case the limitation shall begin when the extended time passes. There is no proof of such extension in this case. The suit would not, therefore, be within time under Article

31. Under Article 30 time runs from the date when the goods are lost. "Loss", as has been held in East Indian Railway Company v. Jogpot Singh (I L R 51 Cal. 615.), occurs "whenever the Railway Company to which the goods have been consigned for conveyance involuntarily or through inadvertence loses possession of the goods, and for the time being is unable to trace them". That I regard, with respect, a fair criterion for determining the time of loss. The facts in so far as they bear on the question of loss are that these goods were, according to the Booking Clerk of Rawalpindi Railway Station, Mubarik Hussain (D. W. 1), put in wagon No. 35317. Abdur Rashid Guard (D. W. 2), who was conducting the train to which that wagon was according to D. W. 1, attached, says he is not sure whether he brought that wagon from Rawalpindi. Muhammad Usman (D. W. 3), who is the Guard who took charge of the train at Lala Musa, is quite definite that wagon No. 35317 was not given in his charge at all. The next infor mation which we got about this wagon is from D. W. 5, Barkat Ali who says that on 24th of December 1947, when he was posted' at Qasur he found that wagon No. 35317 was attached to a train of empty wagons. He says he had checked all the wagons in the train to find out whether they were empty and the method he employed was that he just knocked with a stick on the wagon and made an inference from the sound it created as to whether it was empty or not. That is all the evidence about the loss. The onus of proving the time when loss occurred is on the railway, for that is within their special knowledge. The evidence on the record is wholly insufficient for proving the date of loss. In the first instance it is difficult to say that wagon No. 35317 was empty at all on the 24th of December 1947, when Barkat Ali (D. W. 5) found it with a train of empty wagons. In his examination‑in‑chief he had simply stated that it was attached to a train of empty wagons. He stated in his cross‑examination that he knocked at the wagon to find out whether it was empty or not. He was only referring to a practice of his and had no recollection of this particular wagon. Assuming even that the goods were not in the wagon at that time they might have been in possession of the railway and might have been put into some other wagon. There is no evidence whatsoever as to any enquiry having been made by any officer and a conclusion reached that the goods were not traceable. It is only when a conclusion like that is reached that loss can be said to have occurred according to the definition of loss which I have adopted. As the defendant has failed to prove the date when loss occurred, the present suit is within time under Article 30 the onus of proving it beyond time being on the defendant. As a result this appeal should be dismissed with costs. AKHLAQUE HUSSAIN, J.‑I concur in the order proposed. I entirely agree with my learned brother that this suit is governed by Article 30 of the Limitation Act and is within time. In the circumstances it is unnecessary for me to express any opinion on the question whether the suit is barred under Art.

31. A. H. Appeal dismissed.