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Petitioner: PAKISTAN RAILWAY VS Respondent: SHAHID FAROOQ
Court Name: Balochistan High Court Judge(s): Iftikhar Muhammad Chaudhry, Amir-ul-Mulk Mengal Title: PAKISTAN RAILWAY vs SHAHID FAROOQ Case No.: Regular First Appeal No,43 of 1990 Date of Judgment:1991-08-13 Reported As: 1992 CLC 128 Result: Appeal accepted
JUDGMENT
JUDGMENT ' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This appeal is directed against the order/decree passed by District Judge, (Ad hoc), Quetta, dated 31st of December, 1989, whereby suit filed by respondent/plaintiff was decreed for sum of Rs,58,083, with cost. 2. The facts in brief arc that five Railway wagons of coal were loaded and booked from various Railway stations i,e. Kuchlak Samugli and Sibi to Kharian Railway station, details whereof are as under:-{{TABLE}} Date of Wagon Station Booked P.R. No, Net weight Booking No, from by (in tons). 3-3-1978. 75351 Kuchlak Rafi & Co. 064950 24.4. 29-8-1978. 70069 Samugli Spinzar Coal 800548 23.8. Road Co. 14-9-1978 65734 Sadaqat 800752 24.00 Minerals 20-9-1978 60989 Sibi East West 800881 23.0 Co. 18-11-1978 43576 Qasim Ali 829379 24.4. and Mushtaq Ali. 3. The claim of the respondent is that his firm purchased coal from various owners and obtained above Railway Receipts from them with the endorsement that his firm is authorised to take delivery of consignment at Kharian Railway Station. ' Railway receipts were handed over to a bank at Quetta with instructions to transmit the same to the bank at Kharian for releasing the Railway Receipts to concerned party after charging the value of coal and intimation was sent to one Ch. Noor Muhammad Coal Agent, Dinga Road, Kharian and
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invoices were also sent to him with directions to deposit the price of the coal in the bank of Kharian and get Railway receipts released in order to take delivery of the coal from the Station Master of Kharian Railway Station. 4. The Coal Agent namely Ch. Noor Muhammad, failed to make payment of value of the coal in the bank with the result that the railway receipts of the above wagons were not released and after some time banker returned it to Quetta bank for the purpose of re-delivering to respondent, which were accordingly received by him. The Station Master of Kharian Railway Station did not send any invoice to stations from where coal was booked about the non-delivery of above-mentioned five wagons which he was required to do under the Railways Act. 5. In these circumstances plaintiff preferred his claim of non-delivery of coal against the Railway department by sending various letters, although these letters were acknowledged but have never been replied and finally a notice as contemplated under section 80 of the Civil Procedure Code was sent under registered cover on 19th of July, 1990 wherein request was made to the Railway authorities to settle the claim but they failed to do so. 6. It was alleged by respondent that the misappropriation of coal loaded in the above wagons was due to misconduct and wilful non-observance of Railway Rules on the part of Station Master of Kharian Railway Station because Railway Receipts relating to above wagons were lying in the bank, therefore, delivery would have not been made to anyone without production of original Railway Receipts or by execution of indemnity bond as such, in view of above misconduct, on the part of Railway functionaries a loss to the tune of Rs,58,083 has been caused to respondent, therefore prayer was made for passing of a decree for the above amount with interest from the date of suit to the date of payment of decretal amount, the cost of the suit was also claimed. 7. The appellant/defendant resisted the suit and besides repudiating the claim of respondent on merits, in the preliminary objections, the plea of limitation was raised and it was contended that suit being barred by time is liable to be dismissed, it was also one of the objections that there is no privity of contract between the parties because the goods in suit were booked by different parties i,e. Rafi and Co. To self against R.R. No,064150, Spinzar Coal Co. To self against R.R. No,800548, Javel Coal Co. To self against R.R. No,800572, East West Coal Co. To self against R.R. No,800881 and Qasim Ali Mushtaq Ali to self against R.R. No,829379, it was further contended that no notice as required under section 77 of the Railways Act, was served by the owners of the goods therefore suit is liable to be dismissed. On merits, it was stated that the goods were delivered to Ch. Noor Muhammad Coal Agent of Kharian on execution of indemnity bond etc. The trial Court in pursuance of pleadings of parties framed seven following issues:- (i) Whether the suit is not competent in view of the preliminary objection of the written statement? (ii) Whether the suit is time-barred? (iii) Whether there is no private of contract between the parties. (iv) Whether no notice as required under section 77 of the Railways Act was served by the owner of goods ? If so to what effect? (v) Whether the suit suffers from non-joinder of a necessary party as objected in preliminary objection 6 of-written statement. (vi) Whether the plaintiff is entitled to the decree as prayed for? (vi) 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, (mama Din and Ghulam Nabi Afridi. 8. The trial Court after recording evidence decreed the suit in favour of respondent and against appellant with cost.
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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 nondelivery 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 1st 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) PLD 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 PLD 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 facts 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.
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(iv) PLD 1961 SC 340. Abdul Jalil 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 HI 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 S.A. 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 inability 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% 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 CLC 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
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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 of reasonable time shall depend on facts and circumstances of each case. Difficulty has arisen in determining date 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 time 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 not 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.
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' 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 in whole or in part, if in the subsequent correpondence 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 A 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, C.J. And A.R. Changez, J., where a number of cases arc 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
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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:- ' 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 and 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…
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