Patna High Court
Union Of India (Uoi) vs Kedar Nath Babulal on 12 December, 1958
Equivalent citations: AIR1959PAT252, AIR 1959 PATNA 252
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT
1. In the suit out of which this appeal arises the plaintiff claimed damages for loss and deterioration o£ a certain consignment of piece goods, made over to the railway authorities at Bhavanagar railway station for being taken to Ranchi. The plaintiff based his case on the ground of negligence and misconduct on the part of the railway administration and the allegation of the plaintiff was that the damage was caused by rough handling on the part of the railway staff. The suit was contested by the defendant railway, firstly on the ground of limitation, and secondly on the ground that there was no misconduct or negligence on the part of the railway staff. Both the Tower courts have accepted the case of the plaintiff and given a decree in favour of the plaintiff for damages against the defendant railway.
2. The point of law put forward on behalf of the appellant is that the suit is barred by limitation. It appears that open delivery of the goods was taken on the 16th August, 1950, and notice under Section 77 of the Indian Railways Act was given to the appellant by the respondent on the same day, and another notice under the same section was given on the 23rd January, 1951. Two notices were also served by the respondent under Section 80 of the Code of Civil Procedure on the 29th June, 1951, and the 3rd July, 1951.
The suit was ultimately brought on the 29th! November, 1951. It was conceded by both the parties that if the plaintiff is not entitled to any deduction of the period under Section 15 (2) of the Limitation Act, with regard to the notice under Section 77 of the Railways Act, the suit would be barred by limitation. The question for decision in this appeal, therefore, is whether the plaintiff is entitled to deduct the period under Section 15 (2) of the Limitation Act with regard to the notice given by him under Section 77 of the Railways Act.
3. On behalf of the respondent reliance was placed upon the decision of a Division Bench of this Court, consisting of Gout's and Adami JJ., in B. and N.W. Rly. Co. v. Ramsarup Lal, AIR 1922 Pat 549, in which it was held that the plaintiff i" that case was entitled to deduct the period of 15 days given to the. railway company under Section 77 of the Railways Act, read with Section 15 (2) of the Limitation Act.
It was submitted by learned Counsel on behalf of the appellant that this proposition of law is erroneous and needs re-consideration in view of the decision of a Full Bench of this Court in Dominion of India v. Hazari Lal, AIR 1949 Pat 410 and also in view of a decision of a Division Bench in Union of India v. Fateh Alam, 1958 BLJR 615. It was also pointed out by learned Counsel on behalf of the appellant that a different view has been taken with regard to the effect of the notice under Section 77 of the Railways Act in Dominion of India v. W.N. Sareen Co., AIR 7 1953 Nag 10 and in Shankarappa v. Union of India, AIR 1957 Hyd 21.
4. In our opinion, the contention put forward on behalf of the appellant is well founded and must be accepted as right. Section 77 of the Railways Act states as follows : --
"77. Notification of claims to refunds of overcharges and to compensation for losses.
A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss, destruction or deterioration of animals or goods delivered to be so carried, unless his claim to the refund or compensation has been preferred in writing by him or on his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway".
Section 15 (2) of the Limitation Act enacts as follows :--
"15. (2) In computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded".
Article 30 of the Limitation Act prescribes a period of one year as the period of limitation within which the suit should be brought against a carrier for compensation for loss or injury to the goods. In our opinion, the notice given under Section 77 of the Railways Act is not a condition precedent for bringing a suit against the carrier for compensation for loss or damage.
The language of the section does not support any such construction and this view is also supported by a Full Bench decision of this High Court in AIR 1949 Pat 410, where all the three learned Judges expressed the opinion that Section 77 did not provide that no suit shall be brought in the absence of a notice, but only provided that it cannot be decreed and so the court had always the jurisdiction to entertain the suit and then to decide the necessity of a notice before granting a decree. In other words, Section 77 by its terms does not impose a bar against the court entertaining a suit in the absence of a notice contemplated by it.
It merely disentitles the- plaintiff to the relief which he claims. A similar view has been taken in another case namely, AIR 1953 Nag 10, with regard to the effect of a notice given under Section 77 of the Railways Act. It has been held in that case that the plaintiff was not entitled to exclude the time granted tinder Section 77 of the Railways Act for the purpose of computing limitation under Section 15(2) of the Limitation Act and that the claim under Section 77 of the Railways Act was not notice of the suit but was only notice of the claim.
In our opinion, the decision in AIR 1953 Nag 10 lays down the correct law oh the point and the view of the learned Judges in AIR 1922 Pat 549 on this point is not correct. Actually the decision in the latter case can be supported on the ground that the plaintiff in that case was entitled to deduct a period of two months in view of the notice under Section 80 of the Code of Civil Procedure.
It was observed in that case that in a single suit which was properly brought against several defendants, if the plaintiff was entitled to deduct a certain period from the period of limitation in respect of one defendant, he was also entitled to the same period of limitation in respect of other defendants. It is obvious, therefore, that in that case the suit of the plaintiff was within time if the notice under Section 80 of the Code of Civil Procedure was taken into consideration, The actual decision therefore, in that case is correct; hut the view expressed by the learned Judges with regard to the effect of Section 77 notice can no longer be considered to lay down the correct law, because there is the decision of the Full Bench in AIR 1949 Pat 410 which states that a notice under Section 77 is not a condition precedent for the entertainment of the suit for compensation for loss or damage to the consignment.
In a later case, 1958 BLJR 615, also it has been held by a Division Bench that a notice or claim under Section 77 of the Railways Act was not ,1 condition precedent to the institution of a suit for a refund or for compensation, and, therefore, the notice under Section 77 cannot form part of the cause of action upon which the suit of the plaintiff was based. As we have already said, the decision of the Division Bench in AIR 1922 Pat 549 with regard to the effect of Section 77 notice on the period of limitation is not authoritative in view of the subsequent Full Bench decision in AIR 1949 Pat 410.
We have already indicated the reasons for holding that the notice given under Section 77 of the Railways Act does not fall within the ambit of Section 15(2} of the Limitation Act, and so the plaintiff is not entitled to the deduction of the time given under Section 77 of the Indian Railways Act. It follows, therefore, that the suit of the plaintiff must be dismissed on the ground of limitation.
5. For these reasons we allow this appeal, set aside the decree of the lower appellate court and order that the suit of the plaintiff must be dismiss ed. The parties will bear their own costs through out.