Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Second Appeal No. 350 of 1951, decided on 16th June 1953, from the decree of A. Lazarus, District Judge, Gujranwala, dated the 11th July 1951, affirming that of Salah‑ud‑Din Hanif, Senior Civil Judge, Gujranwala, dated the 23rd January 1951.
S. 80‑Substantial compliance with provisions sufficient‑-Notice to General Manager Commercial, N. W. R. and addressed to General Manager, Claims Section, held, proper‑Notice received by proper person, but not so addressed, held sufficient.
A technical compliance with the provisions of section 80, C. P. C. is not essential. It is one thing to say that the provi sion about notice is mandatory and it is another to say that compliance is to be literal. All that is needed is a substantial compliance.
The object of the notice is that information be given to the party concerned of the suit that is to be filed and if the notice substantially fulfils that object it is valid.
Organisation Order N. W. R. No. 170 shows there are no less than fifteen different sections mentioned in that Organisation Order. It does not mean that there are fifteen General Managers, but only that there are fifteen sections of his office.
Though the notice under section 80 was to the General Manager Commercial the address given was only "General Manager, Claims Section." Little fault can be found with a notice which bears this address.
The fact that defendant admits receipt of notice in the written statement is sufficient by itself to debar the defendant from taking my objection as to proper service of notice, though the objection is to its sufficiency may yet remain. Apart from the legal effect of an admission in the written statement, even if a notice is proved to have been received by the proper person and dealt with by him, though is was not addressed to the proper person, the service is sufficient.
[Case‑law referred to].
S. 80‑--Notice to General Manager, N. W. R. not stated that suit would be filed against Federation of Pakistan but saying instead that suit would be filed against "you" Notice, held, not objectionable.
The notice did not say that a suit was to be filed against the Federation of Pakistan, but used the word you' which would indicate that the General Manager, Commercial' was to be sued.
Held, if on the reading of the notice either the person con cerned in fact understood that intention was to sue the Govern ment or ought to have understood that such was the intention, the notice cannot be attacked on the ground that it does not " mention who was intended to be sued.
Sch. First, Arts. 30 and 31‑Applicability according as cause of action is stated .to be loss or non‑delivery.
The applicability of Articles 30 and 31 would depend on the cause of action, or the infringement of right which is the basis of the claim. If the basis of the suit be the act of carrier in losing the goods. Article 30 would apply and if the basis of the suit be the right of the plaintiff to delivery of goods which right has been infringed Article 31 will govern.
The view that in case of loss Article 30 only can apply is untenable. However, really it is a question of substantive law whether a suit for non‑delivery lies even in case of loss. For if it does lie, and there is no reason why it should not, the plaintiff cannot be forced to file a suit in respect of loss. If he bases a claim on non‑delivery the Article applicable must be 31.
S. A. Mahmood, Assistant Advocate‑General for Appellant,
Respondent in person.
Iqbal Medical Stores, respondent in this appeal, filed a suit against the Federation of Pakistan for Rs. 311‑11‑0 as compensation on account of the loss of medicines booked from Karachi in the respondent's name on 17th of February 1948, by Spencer & Co. of Karachi. The trial Court decreed the claim. The learned District Judge dismissed the appeal and the Federa tion of Pakistan has filed this second appeal.
There is no contest on the merits, Only two points were argued before the learned District Judge, i.e., want of proper notice under section 80, C. P. C. and limitation. The same points have been argued before me.
With respect to notice two objections are taken. The first is that the notice was addressed to the General Manager Commer cial whereas it should have been addressed to the General Manager. The second is that it does not say that suit would be filed against the Federation of Pakistan.
As regards the first objection it was not the defendant's case either in the trial Court or before the learned District Judge that it had not received the notice. Both the Courts have expressly recorded that this objection was not taken before them and that the only point argued was that the notice was not in proper form. In the written statement the plea had been put in the following words "Receipt of notice is not denied but its validity is not admitted:" Before me learned Assistant Advocate‑General argues that it is a pure question of law and he is not debarred from taking this objection. Whether notice was received by the proper person is not a pure question of law and I am not inclined to allow it to be raised before me for the first time. The fact that defendant admits receipt of notice in the written statement is sufficient by itself to debar the defendant from taking any objection as to proper service of notice, though the objection as to‑its sufficiency may yet remain. Apart from the legal effect 4f an admission in the written statement, even if a notice is proved to have been received by the proper person and dealt with by him, though it was not addressed to the proper person, the service is sufficient. This proposition is fairly, well established. in cases under section 77, Railways Act, vide Devi Ditta Mal. v: Secretary of State (A I R 1926 Lah. 253 (F. B.)) (Judgments of. Campbell, Harrison and Fford, JJ)., A. Mahadeva Ayyar v. The South Indian Railway Co. (A I R 1922 Mad. 362 (F. B)), Secretary of Slate for India in Council v. Dip Chand Podder and others (I L R 24 Cal. 306), Mahabir Pershad and another v. Secretary of State (A I R 1927 Oudh 1), and Dhanpat Mal‑Lubba Mal v. Agent B. B. & C. L Railway Co., Bombay (A I R 1928 Lah. 438), and has been applied even in cases under section 80, C. P. C., vide Chekka Subrahmanyam v. Union of India, represented by the Secretary to the Government of India incharge of Railways, New Delhi (A I R 1951 Mad. 416) and Governor‑General of India in Council by General Manager, the M. & S. M. Railway Co., Madras v. G. Krishna Shenoy (A I R 1951 Mad. 327). In the last mentioned case a notice was addressed to the Secretary of State but it was received by the Governor. General and dealt with by him and the notice was held valid.
The learned Assistant Advocate‑General has relied in this connection on Messrs Kumar Bros. v. The Governor‑General in Council, New Delhi (P L D 1949 Lah. 239), Gujar Mal v. Narayan Singh (A I R 1931 Lah. 504), Rattan Chand Dharm Chand v. Secretary of State and another (A I R 1915 Cal. 62) and firm R. S. Ganga Ram and R. S. Rupchand & Co. v. Secretary of State (A I R 1937 Sind 291). In the first case, a very short judgment, the notice was addressed to Secretary, Railway Board. It was neither shown that he was the same person as the Secretary, Central Government, nor was there any proof that in fact the notice bad reached a Secretary to Central Government. Certain observations in Jagdish Chandra Deo v. Debundra Prasad Bagahi Bahadur & Co. (A I R 1931 Cal. 503), do support the appellant. The case lays down that provisions of section 80, C. P. C., are to be strictly complied with and that the provision with respect to mode of service of notice is also mandatory. With all respect I do not agree that a technical compliance with the provisions of section 80, C. P. C. is essential. It is one thing to say that the provision about notice is mandatory and it is another to say that compliance A is to be literal. All that is needed is a substantial compliance. In Union Steamship Co. of New Zealand v. Melbourne Habour Trust Commission (1884 A C 365), their Lordships of the Privy Council said:‑
"Some cases have been quoted for the purpose of showing that notices of action are not to be construed with extreme strictness, a rule to which their Lordships subscribe. Cases have been quoted in which notices of action have been upheld which would have been bad upon special demurrer, or perhaps upon general demurrer; but those cases have no bearing on the present, where the notice of action is not, in form or substance, a compliance with the Act." (p. 368).
In Halsbury's Laws of England, Volume I, page 40, it is stated with respect to such statutory notices of action "but an error or omission which cannot mislead the defendants is immaterial." The object of the notice as has been held in M. Yenkatakrishnier v. Secretary of State and another (A I R 1926 Mad. 408), Jehangir M. Cursetji v. The Secretary of State for India in Council (I L R 27 Bom. 189) and Secretary of State v. Dhirendra Nath Roy and others (A I R 1934 Cal. 187), and a number of other cases, is that information be given to the party concerned of the suit that is to be filed and if the notice substantially fulfils than object it is valid. Rattan Chand Dharm Chand v. Secretary of State and another (supra) relied upon by learned counsel does not deal with the question under discussion. In F. R. S. Ganga Ram and R. S. Rupchand & Co. v. Secretary of State (supra) the plaint contained a statement that a notice had been 'sent' and not a statement that it had been delivered' or 'left'. The learned Judicial Commissioner dismissed the suit on the ground that it did not satisfy the provisions of section 80, C. P. C. I have already stated that I regard substantial compliance sufficient and, there fore, I regret with all respect my inability to subscribe to the view expressed in this judgment. I would, respectfully, agree, on the other hand, with the opposite view expressed in Muhammad Farooq v. Governor‑General in Council (A I R 1949 Pat. 93) and A. Sankunni Menon v. South India Railway (A I R 1952 Mad. 502).
I have, however, considered this objection as to service of notice on the merits and I find no substance in it. The contention of the learned Assistant Advocate‑General is that the General Manager, Commercial is different from the General Manager. I asked him to support his argument by a reference to the Railways Act or the rules framed thereunder. He was unable to give me any information as to who this General Manager Commercial is. I made inquiries in the matter myself and the result of my enquiry is that there is no such officer as General Manager Commercial. The reason why the word Commercial' is added to General Manager' will appear from Organisation Order No. 170 of the North Western Railway, which I reproduce below:‑
"NORTH WESTERN RAILWAY.
Organisation Order No. 170.
With immediate effect, all letters from the Headquarters Office to D. Ss. Supdt. Mech. Workshop, Chief Accounts Officer and Chief Auditor and other officers to whom correspondence is addressed from G. M. including the public, will be issued thus:‑
From General Manager (Personnel) ............
(Commercial) ....... .
(Pass) ....... .
(Statistical) ....... ..
(General) ..".
The officer of the General Manager is divided into a number of sections for the purpose of convenience and the words in brac kets quoted in the above mentioned order are added after General Manager' in order to indicate from which section the letter is being issued. Then the public or other officers address the General Manager they too similarly add the corresponding word in brac kets to indicate to which section the letter is to go. I have quoted above only five sections from Order No. 170. Actually there are no less than fifteen different sections mentioned in that Organisation Order. It does not mean that there are fifteen General Managers, but only that there are fifteen section of his office. I a letter is issued by "General Manager (Pass)" it only means that it comes from that section of the General Manager's Office which issues passes. If a railway officer has to address the General Manager in connection with a pass he will address the letter "General Manager (Pass)". .
The notice, therefore, was addressed to the General Manager of the railway. I have not tried to find out whether, when a notice is sent to‑ the General Manager under section 80, C. P. C. it is the section named "Commercial" that deals with it. Probably that is so, for so far as claims under section 77 are concerned they axe admittedly dealt with by the Chief Commercial Mana ger., Even if Commercial' were not the appropriate section, the notice would be in order. The letter did reach the office of the General Manager and if it went to the wrong section, that sec tion ought to forward it to the section whose duty it is to deal with the letter.
At the same time, I find that though the notice under section 80 was to the General Manager Commercial the address given was only "General Manager Claims Section" as will appear from the postal acknowledgment receipts. Little fault can be found with a notice which bears this address.
The second objection with respect to notice is that it doe not say that a suit was to be filed against the Federation of Pakistan, and that the notice uses the word you' which would indicate that the General Manager Commercial' was to be sued. I have already made it clear that General Manager Commercial' refers only to the General Manager'. The notice makes it clear that the person at fault and who is liable to the plaintiff is the Railway Administration. It says "Loss to us is caused by negligence, default and misconduct on the part of the railway only". When the plaintiff uses the word you' he only means the General Mana ger as representing the Railway Administration. Three provi sions may be kept in view in interpreting‑the word you'. The first is section 3 (6) of the Railways Act under which the Railway Administration' means the Manager of the railway. The second is a notification of the Pakistan Government No. E.‑48‑L.L.‑2/5 dated 29th of June 1948, by which the General Manager has been authorised to act on behalf of the Central Government in all proceedings relating to railways. The third is section 145 of the Railways Act which empowers the General Manager to authorise any person to act on his behalf in any civil, criminal or other Court. To this last provision, I refer because the proceedings in Civil Courts in which the General Manager may authorise a person to act on his behalf will not be those in which he is personally interested but only those in which he represents the Administration. These three provisions will be sufficient to show that the General Manager fully represents the Railway Administration and is really identified with it. A notice to the General Manager would, therefore, even in the absence of other circumstances, be sufficient to show that the intention was to sue the railway.
If on the reading of the notice either the person concerned in fact understood that intention was to sue the Government or ought to have understood that such was the intention, the notice cannot be attacked on the ground that it does not men tion who was intended to be sued, vide Chekka Subrahmanyaml v. Union of India represented by the Secretary to the Government of Indian incharge Railways and A. Sankunni Menon v. South India Railway already cited.
With respect to lamination the first question is whether Article 30 or 31 of the Limitation Act is applicable. Article 30 governs a suit against a carrier for compensation for losing or injuring the goods while Article 31 applies to a suit for compensation for non‑delivery. It should be apparent that the applicability of any of these Articles would depend on the cause of action, or the infringement of right which is the basis of the claim. If the basis of the suit be the act of carrier in losing the goods, Article 30 would apply and if the basis of the suit be the right of the plaintiff to delivery of goods which right has been infringed Article 31 will govern. However, when the goods have in fact been lost the question arises whether the suit would still be governed by Article 31: It is argued sometimes that as there is a specific Article applicable to a case of loss the Article ap plicable can only be 30. There is no warrant for such a proposi tion and I will presently demonstrate that it leads to an absurdity. If, though the goods have been lost the plaintiff still bases his claim on non‑delivery there is no reason why Article 31 should not apply. The cause of action which the plaintiff has on account of non‑delivery, is not destroyed by the loss of goods. The carrier had entered into a contract with the plaintiff for the delivery of goods and though the carrier has lost the goods, the plaintiff can still sue for the performance of that contract. It will be open to the defendant to show that he took such care of the goods as he was in law bound to take and, therefore, is discharged of liability. If we were to hold that in case of loss of goods by the carrier, Article 31 cannot apply, the result would be that without being in any way to blame the plaintiff may in some cases lose his right altogether. Suppose goods are delivered to a shipping company under an agreement that the company will deliver them, at a particular place fifteen months after the con tract. The very next day the goods are lost to the company. The plaintiff knows nothing about the loss and is not in a position to know it. He files a suit for delivery after the expiry of fifteen months. Is he to be told that the goods were lost more than a year before suit and the only Article applicable being 30 his suit is time‑barred I have cited this example to show that the view that in case of loss Article 30 only can apply is unten able. However, really it is a question of substantive law whether a suit for non‑delivery lies even in case of loss. For if it does lie, and there is no reason why it should not, the plaintiff can not be forced to file a suit in respect of loss. If he bases a claim on non‑delivery the Article applicable must be 31.
At the same time, it is to be remembered that though, in case of loss of goods, the plaintiff may still sue for non‑delivery, he is not bound to do so. He may, if it suits him, sue for loss or he may sue in the alternative on both causes of action. If the claim is based on both the alternatives, then we will apply both Articles 30 and 31. In so far as the claim is based on non‑delivery, Article 31 will apply and in so far as it is based on loss, Article 30 will apply. The plaintiff need not in so many words take alternative pleas. In fact generally the plaint will state the facts and make a claim for compensation. We are concerned with the substance of the pleading and though the plaintiff does not specifically take alter native pleas we will in case of loss consider both the causes of action. If the suit be within time on either of the two bases of claim, if the facts needed for that basis be all stated and that basis be not definitely excluded by the wording of the plaint, the suit shall be within time qua that basis. But in such a case the right of the plaintiff is only to be judged with respect to that claim which is within time. That claim may be barred by some provision of substantive law and the mere existence of limitation may not avail the plaintiff.
The plaint in the present case is based on loss rather than on non‑delivery. In paragraph 3 of the plaint it is distinctly stated that the railway are liable because goods have been lost by their negligence. However, there is nothing in the plaint to exclude a plea of non‑delivery and as there is nothing to show that the right to delivery is barred by some other provision of law, I will consider both grounds of claim. Therefore, I will determine whether the suit is within time under either Article.
I will first consider Article 31. Learned Assistant Advocate- General argues that under this Article limitation is to be reckoned from the time when in the ordinary course goods should have reached Gujranwala Railway Station. The terminus a quo in Article 31 is the time when goods ought to have been delivered. That obviously refers to when it was according to the contract of parties the duty of the railway to deliver them. In cases governed by Article 31 the terminus a quo would depend, in the first instance, on the terms of the contract. If the time of delivery is fixed that would (in the absence of an extension) pro vide a terminus a quo. If no time is fixed then according to sec tion 46 of the Contract Act, the contract has to be performed within a reasonable time and that will have to be determined with reference to the particular circumstances of each case.
But that is not all. Under section 63 of the Contract Act the promisee may extend time and if there is either an express grant of extension or the inference from conduct of parties and circumstances is that the promisee extended time, the breach of agreement can take place only when the extended time expires. Of course, as held in Mutthaya Maniagaran v. Lekku Raddiar and others (I L R 37 Mad. 412), time can, under section 63, be extended only with the consent of the promisor. The gist of the matter is that we have to find out by the application of the law of contract as to when a breach of the contract to deliver has been committed and that is the starting point under Article 31. We cannot even entirely ex clude the case of a second breach as when the first breach is condoned and a fresh valid agreement by express words or such conduct as is capable in law of founding an agreement, comes into being. Time would in such a case run from the second breach.
In this case the plaintiff sent a claim (Exh. P. 7) under section 77, Railways Act, which was received in the railway office on 30th of April 1948. The suit was filed on 7th February 1950, and if limitation were to run from this date the suit would be time‑barred. This notice says, "The goods have not reached him so far and have been lost". Then there is a claim made for Rs. 307‑8‑0, the value of the goods. It is clear that when this notice was sent the plaintiff considered that time for delivery had expired and he was entitled to compensation. If the suit be based only on the right of delivery, it would be barred. Learned coun sel has relied upon Secretary of State v. The Dunlop Rubber Co. Ltd., Delhi (A I R 1925 hah. 474) a case of short delivery. In that case part of the goods had been delivered and the learned Judges held that the undelivered part had also to be delivered at the same time and, therefore, time should run under Article 31 from the date when part of goods were delivered. I have already stated that the question as to what is reasonable time is a question of fact to be decided on the circumstances of each case. The learned Judges inferred from delivery of a part that the balance of goods should also have been delivered at the same time. The learned Judges were dealing with a simple case which was not complicated by any additional circumstances affecting the time of delivery. For instance, goods though consigned in one lot may be sent by the railway by different, trains and in instalments for the sake of convenience and in such a case it could hardly be argued that the arrival of one instalment will provide a terminus a quo for a suit with respect to the remainder. Some circumstances beyond the control of the railway may delay the arrival of the remaining goods and reasonable time in respect of these goods may have to be judged on different considerations. Extension of time may be granted with the consent of the party concerned. Any of these matters, or some similar consideration, may take the case out of the rule enunciated in Secretary of State v. The Dunlop Rubber Co. Ltd., Delhi (supra). Learned counsel has referred to some other cases dealing with Article 31 but I need not consider them as I hold that the claim for non‑delivery would in the present case be barred.
I proceed now to consider whether the suit for compensa tion for loss is within time. The terminus a quo under Article 30 is the date of the loss. The time when goods were lost being peculiarly within the knowledge of the carrier the burden of proving that they were lost more than a year before the suit is on the carrier. Rivers Steam Navigation Co. Ltd. v. Bisweswera Kundu (A I R 1928 Cal. 371), The Madras and Southern Marhatta Railway Co. Ltd., Madras v. Bhimappa and, another (17 I C 419), G. I. P. Railway v. F. Radhey Mal Manni Lal (A I R 1925 All. 656) and Jugal Kishore v. G. I. P. Railway Co. (A I R 1923 All. 22) Loss means loss to the railway, The Secretary of State for India in Council through Manager, N. W. R. v, Babu Imam Din (170 P L R 1913) and Jugal Kishore v. G. I. P. Railway Co. (supra) and it occurs in the words of Page, J., in East Indian Railway Co. v. Jogpat Singh (I L R 51 Cal. 615) "Whenever the railway to which 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." The Patna High Court has held to the same effect in the Full Bench case Puran Das v. East Indian Railway Co. (A I R 1927 Pat. 234).
In the present case the goods had been despatched from Karachi on 17th February 1948. As would appear from the R. R. (Exh. P. 2) and the statement of the plaintiff, he went to the Railway Station, Gujranwala and asked for the goods a number of times, but he was given dates to come again. Those dates are 9th of March, 13th of March, 18th of March, 22nd of March, 31st of March, 2nd of April and 19th of April It seems that tired of getting dates, the plaintiff wrote out a claim on 2nd of April 1948, although actually it was despatched later and reached the railway office only on 30th of April 1948. It is stated by the plaintiff in paragraph 2 of the plaint, and not denied by the defendant in the written statement, that a long correspondence ensued and that he received on 5th of February 1949, the letter Exh. P. 3 which said that according to enquiries made loss was due to a running train robbery.
Learned Assistant Advocate‑General argues that loss in this case occurred on 24th of February 1948. He refers to the evidence of Bashir Ahmad (D. W. 1) who was a parcel clerk at Gujranwala on 24th of February 1948. This witness states that the guard who was with the train called 67 up gave him a number of packages and stated that they were 22. The witness accepted the word of the guard and signed a memo for receiving 22 packages. However, when he counted them they were in fact only 21. He went towards the guard's compartment to inform him of the deficiency, but the train moved in the meantime and he could not contact the guard. Learned Assistant Advocate‑General says an inference arises that goods were lost the same day. He asks me to hold that in fact 22 articles were taken down from the train and that one was lost on the platform. This is directly opposed to the state ment of Bashir Ahmad D. W. who distinctly says that in fact 21 packages were taken out of the train. I have drawn the attention of the learned Assistant Advocate‑General to the fact that the case for the railway as stated in Exh. P. 3, which is accepted by theta in the written statement, is that loss was due to theft in a running train and he is now putting forward a case of loss on the platform. He says the railway have got a form for sending replies to all claims and that form contains the statement that loss was due to theft in a running train'. That is no credit to the method adopted for dealing with such cases, but, however, that maybe, it is impossible on the evidence produced by the defendant to hold that loss occurred on 24th of February 1948. Bashir Ahmad D. W. not only does not support this story but contradicts it. Also loss can, on the principles stated above, occur only when after an enquiry goods are not traced and not merely in a moment when the guard says they were 22 and are found to be 21. The only date which the learned Assistant Advocate‑General can put forward as the date on which loss occurred is 24th of Febru ary 1948. No other plea is put forward in this connection. I hold, therefore, that the defendant has failed to prove loss within a year and the suit is within time.
This appeal fails and is dismissed with costs.
A. H. Appeal dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer