ORDER
S.N. Guha Ray, J.
1. This is an application by the plaintiff Gajadbar Shaw for revision under Section 25 of the Provincial Small Cause Courts Act, of an order passed by a Small cause court Judge of Howrah, dismissing a suit for compensation against the B. N. Rly. for non-delivery of a part of the goods consigned by him. It appears that on 10-6-1950 the plaintiff consigned from Ghatsila 18 tons 10 cwt. of scrap iron which was despatched in one wagon and reached the destination, namely, Saliinar on 3-7-1950. On weighment on route at Kharagpore the goods were found to weigh 18 tons 10 cwt. On arrival at the destination on 3-7-1950 when delivery was taken the goods were found to weigh 13 tons only, so that there was a short delivery of 6 tons, 10 cwt. The plaintiff asked for compensation for this short delivery. The suit was first instituted in the Small Cause Court at Sealdah on 4-8-1951, hut on 30-1-1952, on the prayer of the plaintiff himself, after hearing the lawyer of the parties the. Senldah court directed the plaint to be returned for presentation before the proper court. The plaint was filed again before the Small Cause Court Judge at Howrah on 21-2-1952. The learned Small Cause Court Judge dismissed the plaintiff’s suit simply on the ground of limitation after having found that there was undoubtedly a short delivery to the extent of 6 tons, 10 cwts.
2. The only question, therefore, for decision now is whether the suit was barred by limitation.
3. As it was a suit for non-delivery of a part of the goods, the Article of the Limitation Act which governs the suit is Article 81 under which the starting point of limitation is the time “when the goods ought to be delivered.” What the precise meaning of the expression ”when the goods ought to be delivered” is has been considered in a number of cases and the point has been argued before me at considerable length by both the parties. There are two lines. There are two lines of cases in which two different views appear to have been taken.
4. The first line of case begins with Jugal Kishore v. G. I. P. Rly. Co.. ILR 45 All 43: (AIR 1923 All 22(2)) (A). It is a case in which the plaintiff made over on 28-8-1918, certain bales of cloth to a railway company at Rombay for transmission to Chunar and as the goods did not arrive at Chunar, the plaintiff began to make inquiries about them both from the railway concerned and front the East Indian Railway company, to whose line the goods would in the ordinary course of business have been transferred at a certain function, and for considerably over a year the Plaintiff was put off by various statements on the part of the railway companies to the effect that the matter was being inquired into, but ultimately he instituted a suit for damages on 31-3-1920. Their Lordships held that Art, 31 fixes one year from the date when the goods ought to have been delivered, and as in that case no time was fixed for the delivery of the goods, and the correspondence between the parties showed that the matter was being inquired into and that there was no refusal to deliver, up to well within a year of the suit, they were unable to hold, in the circumstances of the case, that the suit was instituted more than a year from the expiry of a reasonable time within which the goods should have been delivered. And their Lordships referred to an earlier Madras Case, viz., M. and S. M. Rly. Co. v. Bhimappa, 17 Ind Gas 419 (B).
5. The next case is Rivers Steam Navigation Co. Ltd. v. Bisweswar Kundu where a company despatched six bags of bins on 15-8-1925 from Jagannath Ghat to Khulna for carriage by the despatch service of the two companies, who were the defendants, to be delivered to the plaintiff Bisweswar Kundu, who not having received the same instituted the suit claiming compensation for non-delivery. In this ease, his Lordship applied to a case where the plaintiff had been kept ignorant of the loss of the goods without any fault of his own, the principle applied by the court of Chancery to a case where a wrong-doer fraudulently conceals his own wrong, the period of limitation serving from time when the plaintiff discovers the truth or with reasonable diligence would discover it, and for this statement he referred to an English case Oelkers v. Ellis, YI914) 2 K.B. 139 (C 1), and then said that Article 31 would apply there having been no time fixed for delivery and there having at no time been any refusal to deliver, hut on the other hand, by the letter of 5-9-1925, the companies having informed the plaintiff that the matter was being enquired into so that the plaint filed on 28-8-1926, was well within time, and for this his Lordship referred to the Allahabad case already cited.
6. Then there is the case B. and N. W. Rly. Co. v. Kameshwar Singh, ILR 12 Pat 67: (AIR 1933 Pat 45) (D) where James Duke and company of Calcutta despatched to the plaintiff on 28-8-1922, a consignment of 3,229 bundles of round steel rods weighing 851 maunds and also four wooden frames from Ramkristapur railway station on the East Indian Railway to Muktapur railway station on the Bengal and North Western Railway. On three separate dates in September, open wagons arrived at Mokameh Ghat station on the East Indian Railway company’s line. Each of these contained a portion of the consignment of steel rods. In each case the goods were unloaded by the men of the East Indian Railway company from the trucks into the company’s godown, and thence were taken over by the men of the Bengal and North Western Railway Co. and loaded into closed trucks on that company’s line. The three closed wagons into which the iron is said to have been loaded by the Bengal and North Western Railway company were delivered at Muktapur railway station on three different dates, the first being on 14-9-1922, the second on the 20th and the 21st The closed trucks were taken to the plaintiffs siding, unloaded, and the iron rod was weighed and it was found that there was a shortage of 248 maunds. The wooden frames were delivered by road van on the 5th October. The question of limitation was raised in this case also and it was argued on behalf of the railway company that the suit, whether it was governed by Article 30 or Article 31 of the Limitation Act. was barred by limitation. And as regards Article 30 their Lordships observed that :
“if the defendants wish to take advantage of Article. 30 the onus is upon them to prove when the loss or injury to the goods actually occurred and that more than one year has lapsed from that date;”
and as regards Article 31 their Lordships observed that this is an Article that applied to a claim for compensation for non-delivery of the goods and the period of limitation is to be counted from the time when the goods ought to have been delivered, and where no particular date is specified the time when the goods ought to have been delivered has to be determined as a matter of what is reasonable having regard to the circumstances of the contract, and this criterion must be applied as much in favour of the plaintiff as in favour of the defendant.
7. The next case is Raigarh Jute Mills Ltd. v. Commrs. for the Port of Calcutta . This is a case where on 2-2-1944 the plaintiff’s delivered large quantity of Jute to the Bengal Assam Railway at Raihtola station on a railway in Calcutta owned by the defendant, Commissioners for the Port of Calcutta, acting on the defendants’ behalf, to be loaded into wagons and despatched to the plaintiffs at Raigarh. The wagons would travel by the defendant s railway from Rath tola to West Docks where they would pass on to the Bengal Nagpur Railway to complete the journey. The wagons formed part of the defendants’ 24-wagoa train which left Rathtola on 2-2-1944. On 16th February, rise first three wagons arrived at Raigarh and their contents were delivered to the plaintiff. The fourth wagon never arrived and the jute loaded in it was never delivered. Alter deciding that Article 31 of the Limitation Act applies instead of Article 30, Gentle, J. refers to the Patna case and disagrees with the view of the Article taken there and agrees with the view taken in another line of cases beginning with Palanichami Nadar v. Governor-General in Council, AIR 1946 Mad 133 (F) and coming to the facts of the case observed as follows:
“…..no time for delivery was specified. Transit of goods on railways, more particularly during the war period, is subject to delay and goods handed to a railway in one bulk are frequently delivered by instalments spread over a considerable period. In such delivery it cannot be said that the railway is in default of its obligations by failing to deliver the whole at one and the same time. When one consignment is loaded in several wagons, they do not always reach the destination at the same time but often one wagon travels quicker and its contents are delivered before others arrive, When that occurs, if a suit were immediately instituted, after arrival of one of several wagons, for the balance, it would be met with a plea that a reasonable time for delivery had not expired and the action was premature. I am unable to subscribe to the decision in Gopi Ram Gouri Shankar v. G. I. P. Rly. Co., AIR 1927 Pat 335 (G) that the time when “a whole consignment ought to be delivered is the date upon which the major portion of it arrives at the destination. After 3 of the 4 wagons arrived at Raigarh, and when Wagon No. 3331 1 had not reached that station, the plaintiffs’ manager enquired at that station. That was the correct and indeed the best possible step to take. He was told that enquiry was being made; this clearly conveyed expectation of information being received and delivery taking place. …….. ……….. …. After receiving the plaintiffs’ claim for non-delivery the defendants wrote on 20-4-1944, that the matter was receiving attention; they did not even then say the goods had been totally destroyed and could not be delivered. Finally, on 4-5-1944 the defendants wrote that, on their behalf the Bengal Assam Hail-way would deal with the plaintiffs’ claim. Upon those facts, the plaintiffs were unaware and were not informed before 28-3-1944 that the defendants would not deliver the Jute. …… …… … ……. . . In any event the earliest date when, from the meagre information given, a refusal or inability to deliver was conveyed, was 28th March before which, in my view a reasonable time for delivery had not expired and, at the earliest, the limitation period commenced to run. With respect, I prefer to follow the line of cases, cited above, commencing with AIR 1946 Mad 133 (F). …….”
8. The next case is of Jainarain v. Governor-General of India, where the facts are that the petitioner on 6-5-1944 handed over a bundle of cloth at the Burrabazar Booking office of the B. and A. Rly. for carriage from Calcutta to a station called Jogbandi, and the bundle was never delivered. In the course of the correspondence that followed this non-delivery, by a letter dated 12-3-1945 the railway informed the petitioner that one bundle belonging to his consignment was lying undelivered at the destination and that he must make arrangements for taking delivery within a certain time. The petitioner on receipt of the letter went to examine the bundle but found that it did not belong to him at all. Further correspondency followed but nothing came out of it and ultimately on 22-8-1945 the suit was instituted. Chakravartti, J., as he then was, interpreted the expression “when the goods ought to be delivered” in Article 31 of the Limitation Act as meaning not the time when they should have been delivered in the normal course, at least in a case where there is to be delivered according to the subsequent prono time fixed for delivery, but the time they ought mises by the Rly. which informs the parties that it is carrying on enquiries.
9. So this concludes one line of cases.
10. The other line of cases begins with the case of Rameshwar Dass Mali Ram v. E. I. Rly. Co. Ltd., AIR 1923 Pat 298 (I) where 250 bags of flour were consigned to the North Western Railway company at Lyallpur on 15-10-1920, for delivery at Jharia on the East Indian Railway company’s line. The consignment was delivered short by five bags and on 11-2-1922 the plaintiff brought this suit alleging that the cause of action arose in November, 1920, when the short delivery was made. A letter dated 7-9-1921 had been received from the Acting Divisional Manager, Howrah, informing the petitioner that the five bags received short were lost and regretting that all enquiries to trace them have been of no avail. It was decided by Ross, J. that Article 30 rather than Article 31 of the Limitation Act applies and that the loss occurred when the short delivery which constituted the loss was made, so that the suit was out of time.
11. The next case is AIR 1927 Pat 335 (G) where on 13-11-1920 six bales of cloth were consigned from the V. T. Bombay to Gaya addressed to the firm Gopi Ram Gouri Shanker. Four bales were delivered at Gaya on 29-11-1920, but the other two bales were not found; and ultimately the consignee instituted a suit against the E. I. Rly. and G. I. P. Rly. for compensation for non-delivery of the goods. On the question as to how the time when delivery ought to be made ‘should be computed under Article 31 of the Limitation Act, their Lordships observed as follows:
“In a suit for non-delivery, where no portion of the consignment has been delivered, it is sometimes necessary to lake evidence on the question of when the consignment ought to have been delivered which must in any case be regarded as a question of fact. The case of G. I. P. Rly. Co. v. Ganpat Rai. ILR 33 All 544 (J) was a case of this kind, where the consignment was totally lost; there the learned Chief Justice of the Allahabad High Court and Mr. Justice Banerjee summarily decided that goods despatched from Bombay ought to have been delivered at Ghazipur within a fortnight or at the utmost within three weeks. It appears to us quite unreasonable to hold, where the greater part of a consignment despatched from Bombay has been delivered at Gaya sixteen days later, that the rest of the consignment ought to have travelled at a pace slower than that of a bullock cart. We have given our best consideration to this question; and we are of opinion that where a great part of a consignment has been delivered on a certain day, there is ordinarily no necessity to enter into evidence on the question of when the balance of the consignment ought to have been delivered because the time when the consignment as a whole ought to have been delivered is manifestly the time when the greater part of the consignment arrived at its destination. We therefore consider that the date on which the goods ought to have been delivered is 29-11-1920; and the plaintiffs’ suit is barred by limitation under Article 31, Schedule of the Limitation Act.”
12. In the case of Devi Deen and Sons v. Rohilchand and Kumaun Railway, AIR 1923 All 342 (K), on 7-8-1918, a consignment of cloth, weighing 26 seers, was sent by the firm of Chandu Lai Munna Lal from Meerut to Naini Tal, and on arrival of the parcel at the destination on 10-8-1918, the plaintiffs found that it weighed only 10 seers and when the plaintiffs went to take open delivery, in place of 3 pieces there were only 2 pieces, and made an endorsement to that effect on the railway receipt but the Railway refused to deliver the parcel until a note was made to the effect that the package was in good condition & the consignee refused to make the note, so that the parcel was sent by the Railway authorities to the Lost Property office at Bareilly. Then there was a certain amount of correspondence between the plaintiff and the railway authorities, and as ultimately no action was taken by the railway authorities, a suit was filed. It was held in this case that limitation began to run from 26-8-1918 when the plaintiff found, on the parcel being opened, that certain articles were wanting, and not from 10-8-1 918 when the parcel first arrived.
13. There is thus a certain divergence of judicial opinion as to how precisely the time when the goods ought to be delivered should be fixed. There is no ambiguity in the words used in Article 31. The time ‘when the goods ought to be delivered’ means exactly what it says, and there being no ambiguity in the words used, there is really no question of construing this Article. The real difficulty is in the matter of fixing this time in every individual case, so that it is really a question of fact to be determined in each case on its own facts. This was the view taken in the Allahabad case referred to in the Patna case, AIR 1927 Pat 335 (G).
14. The first line of eases really reveals a state of facts in which either there is no delivery of the goods or when there is a partial delivery by reason of the fact that all the wagons in which the goods were loaded arrived at different times and some had not arrived at all, the plaintiff is not in a position to know what the correct state of affairs is and naturally has to embark on an enquiry from the appropriate authorities what the correct position is and he is apprised of the correct position, only in the course of that correspondence. In such a state of facts it is certainly reasonable to say that the time ‘when the goods ought to be delivered’ is the time when the consignee for the first time comes to know the correct position, viz., the fact that the goods cannot be delivered. The decision therefore, in those cases is that limitation runs from the date when the consignee is, for the first time, informed of the true state of facts. But a set of different considerations is bound to arise where the plaintiff is aware of the correct position from the very beginning for example, as in this case — the plaintiff knew, as he stated in his letter dated 18-12-1950 Ex. 3, that a wagon, viz.. Wagon No. 21595 BN containing scrap iron weighing 18 tons 10 cwt. arrived at the destination on 3-7-1950 after 23 days from the date of booking of the wagon and there was a short delivery on that date. Where the goods are loaded in one wagon and the wagon arrives at the destination but it is found that the entire goods are not in the wagon, although at the time of loading the whole quantity was there, the date when the goods ought to be delivered is the date when really the wagon arrives at the Station. If a part of the goods cannot be delivered on that date, obviously that they can never be delivered at all. That being so, in such a case the time when the goods ought to be delivered is really the time when the wagon containing the goods arrive at the destination. To say even in such a case that the time when the goods ought to be delivered is the time when the railway authorities ultimately told the plaintiff that the goods could not be delivered is certainly to put on the words of the statute a construction, which, in my opinion they do not bear. The question, as I have already stated, in each case is to determine what the time when the goods ought to be delivered should be, and this is really a matter of evidence. In this case, as I have already stated, from the plaintiff’s own letter Ex. 3 it is clear that the goods were loaded in one wagon, viz., wagon No. 21595/ BN and that it arrived at the destination on 3-7-1950 when the short delivery took place. That is, therefore, in my opinion, the starting point of limitation in this case. The suit was filed in Howrah on 21-2-1952, i.e., more than a year after 3-7-1950, so that prima facie the suit would be barred by limitation.
15. Mr. Banerjee on behalf of the petitioner argues that he is entitled to have the period during which the suit was pending in Sealdah Court deducted under Sec. 14 of the Limitation Act. Section 14 (1) of the Limitation Act runs as follows :
“In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or in a court of appeal, against the defendant, shall be excluded., where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.”
Before considering whether the plaintiff is entitled to this deduction it is necessary to look into the plaint itself. The relevant paragraphs for our purpose are paragraphs 7 and 9. Paragraph 7 runs as follows :
“That the plaintiff has duly served notice of claim upon the B. N. Railway as also notice under Section 80 of the Civil Procedure Code upon the Union of India through the Manager of the B. N. Railway.”
Paragraph 9 runs as follows :
“That the cause of action for this suit arose on and from 25-1-1951 when the defendant Railway wrote the last letter refusing delivery of the remaining aforesaid materials at Shalimar, P. S. Metiaburuz within the jurisdiction of this Court.”
“‘P. S. Metiaburuz” was scored through evidently after the plaint was returned by the Sealdah Court and “Shalimar, P. S. Sibpur (Municipal area)” was substituted in its place before the plaint was filed in the Howrah Court. In paragraph 7, although Section 77 of the Railways Act is not specifically mentioned, there is certainly a reference to a notice evidently under that section on the B. N. Rly. In other words, it is stated as a fact that such a notice was served on the B. N. Rly. Then paragraph 9 distinctly says when the cause of action arose; and the plaintiff placed the cause of action on and from 25-1-1951 when the Railway company refused delivery of the balance of the materials. Mr. Banerjee argues that prior to the decision by a Full Bench of this court in Bansi v. Governor-General of India in Council, the service of a notice under Section 77 of the Railways Act was regarded as a part of the cause of action in a suit of this character; and if this suit was filed at Sealdah, it could only be under the impression that the service of the notice on the B. N. Rly. at its head office, which is within the jurisdiction of the Sealdah Court, was a part of the cause of action. If the suit had been actually filed before the Sealdah Court under a misapprehension that because the service ot a notice under Section 77 was a part of the cause of action, and because such service took place within the jurisdiction of that Court, the suit had to be filed in the Sealdah court, there might have been some justification for the mistake; and if there was this justification for the mistake the plaintiff would be entitled to a deduction of the period during which the suit was pending before the Sealdah Court. But the plaint, the relevant portions of which for this purpose are paragraphs 7 and 9, does not even state that the notice was served on the B. N. Rly. within the jurisdiction of Sealdah Court; that is left to inference. Nor is it stated that as a part of the cause of action arose within the jurisdiction of Sealdah Court, it is being filed in that court. On theother hand, it is distinctly stated in para 9 that the cause of action arose on or from 25-1-1951, when the defendant railway refused delivery at Meriaburuz, within the jurisdiction of Sealdah Court. That distinctly shows that the refusal having taken place within the jurisdiction of the Sealdah Court, the suit was being filed in that court. Evidently, therefore, what Mr, Banerjee is now arguing was not present before the learned lawyer drafting the plaint, And it is impossible to read into this plaint what Mr. Banerjee asks me to do. It is, therefore, clear that the misapprehension which Mr. Banerjee speaks of was non-existent at the time when the plaint was filed in the Sealdah Court.
16. Mr. Banerjee also argues that what section 14 requires is not that the initial filing of a suit has to be in good faith but it is enough if it is prosecuted in good faith in the court, which from defect of jurisdiction or otherwise, is unable to entertain it. Undoubtedly, the words used are ”where the proceeding is prosecuted in good faith.” The question is what is the precise meaning of the expression “prosecuted in good faith.”
Section 2 (7) of the Limitation Act runs as follows :
“Good faith” nothing shall be deemed to be done in good faith which is not done with due care and attention.”
The question now is whether a proceeding can be prosecuted in good faith if its initial filing is not in good faith. In other words, if the initial filing is attributed to carelessness, for which there is little or no excuse, can the subsequent prosecution of the suit be said to be in good faith? In my opinion; the word “prosecute” does not exclude the initial filing, and it means only everything necessary for prosecution. Obviously in a proceeding until and unless the first step for its prosecution is taken viz., until and unless it is filed, subsequent steps cannot be taken. In other words, the prosecution of a proceeding means the taking of all the steps necessary for carrying on a proceeding from the first to the Inst. In that view, the prosecution of a proceeding cannot be on good faith when the initiation of that proceeding is not in good faith. In this view the plaintiff is not entitled to the deduction of the period during which the suit was pending in the Sealdah Court and if that period is not deducted, the suit is admittedly, barred by limitation. The view, therefore taken by the learned Small Cause Court Judge is correct, and the suit was rightly dismissed so that the petition must stand rejected.
17. The Rule is, accordingly, discharged; in
view of the facts and circumstances of this case,
I make no order as to costs.
