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TMI Blog1970 (10) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of one railway receipt, R.R. No. 168861, as the value of 21 lengths short delivered in another railway receipt R.R. No. 168866 in that consignment was paid by the railways and a sum of Rs. 139.66, being the value of 2 bundles of 3 lengths short delivered in the last suit. The respondents representing the Railways contended that the suit by the first petitioner was not maintainable, that the first two suits, 5393 and 5394 of 1962 were barred by limitation as the said suits were filed more than a year after open delivery of the goods, that they were not liable for the reason that the railway receipt merely referred to the fact that the consignment was only said to contain a certain quantity of the goods and that they were not liable as the consignments had not been packed as per conditions prescribed in the Indian Railways Conference Association Goods Tariff. 2. The trial Court negatived all these contentions and decreed the suits as prayed for in favour of the first petitioner. But on New Trial Applications filed by the respondents herein, the suits were dismissed with costs throughout. 3. In view of the Bench decision in Sri Sarada Mills Ltd. v. Union of India (1996) 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This was accepted by the trial Court, but the decision was reversed in the New Trial Application and Rajagopala Ayyangar, J., restored the judgment of the trial Court. 5. Even in the unreported Supreme Court decision relied on by Sri S.K.L. Ratan it is stated that where the railway receipt contained the words 'said to contain' it is the duty of the owner to prove the quantity of goods actually consigned by him by adducing such evidence as to how he acquired the goods, what price he paid for the same and what quantity he loaded in the wagons. There is such evidence in the present case furnished by P.W. 2 Mukherjee, General Foreman in charge of the Indian Tube Company, who not only gave evidence about the general practice as to the consignment of the goods, but also gave details as to the actual consignment of goods in this case. He has deposed that before loading all the individual bundles are counted personally by him and by another person to have a double check and that after counting, it is being weighed on one side before loading into the wagon. He has specifically stated that a railway clerk witnessed the actual weighment and that the weighment was recorded in the we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the decree or order in the suit (not being a decree passed under Section 522 of the Code of Civil Procedure), order a new trial to be held, or alter, set aside or reverse the decree or order, upon such terms as it thinks reasonable, and may, in the meantime, stay the proceedings. Explanation : Every suit shall be deemed to be contested in which the decree is made otherwise than by consent of or in default of appearance by the Defendant. The general language of Section 38 of the Presidency Small Cause Courts Act may leave the impression that there are no conditions attached to the exercise of the jurisdiction under that section. But the history of the Legislation, the practice of the Courts and the long line of decisions have clearly indicated the restricted scope of the jurisdiction of the Judges hearing a New Trial Application. It is well known that the Presidency Towns Small Cause Courts are summary Tribunals established in 1850 to relieve the Supreme Courts in the Presidency Towns and are largely modelled on the county Courts in England. In England the power to grant new trials conferred on the judges of the county Courts is not an absolute power to be exercised on any grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s practically no evidence to support it. In Sat Sikandar v. Ghouse Mohideen (1917) 32 MLJ 213 , it was held that the above Full Bench case was rightly decided and should in any case be followed as the decision was on a point of practice which had now stood for many years and their reversal must seriously affect the settled practice of the Court. In Madras Cine Service v. Shyamala Pictures (P.) Ltd. (1968) 2 MLJ 205 Ramaprasada Rao, J., has held that the new trial Bench has no jurisdiction to reverse the findings of fact as their jurisdiction is-purely revisional and not appellate in character and that where the new trial Bench is of the opinion that the findings-of the fact of the trial Court cannot be sustained, it can remit the matter to the trial Court for a reconsideration of the entire issue. I have already pointed out the scope of the said revisional jurisdiction of the Judges of the Presidency Town Small Cause Courts in interfering with a finding of fact by the trial Judge. There can be no doubt in this case that the judges who dealt with the New Trial applications have taken a wrong view of their jurisdiction in differing from the finding of the trial Court on their own app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaintiff. This decision has been followed : Union of India v. Brijlal AIR 1963 All 1 and in Virat Pal v. Union of India AIR 1963 All 2 . There was short delivery of goods in every one of these suits and the railways have not adduced any evidence to show how they dealt with the goods from the time when they were consigned till they were delivered to the second petitioner at Madras. The trial Court has rightly held that the defendants not having explained how the shortage had occurred must be held to have acted negligently in carrying the consignments from the place of origin to the place of destination. 9. The only remaining question to be considered is whether the claims in the first two suits are barred by limitation. Open delivery was effected in the first two suits on 6th May, 1961 and 8th May, 1961 respectively and the suits were filed after one year on 10th July, 1962. Prima facie, the suits were barred by limitation under Article 31 of the old Limitation Act under which the period of one year limitation commenced from the time when the goods ought to be delivered. It is clear from the records in this case that the railways went on taking time after receiving the suit n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out in this decision that the provisions of the Limitation Act in England regarding acknowledgment are more stringent that what they are in India and that no reason has been shown as to why the judgment of the Court of Appeal should not be followed. In the last Full Bench Judgment, it was held that the receipt relied on by the plaintiff was sufficient acknowledgment, though it referred only to the promissory note and the suit was filed on the original cause of action which was not referred to in the receipt. 11. The word 'acknowledgment' as repeatedly stated is not a term of art and it ought to be construed in its plain literary sense. Each case relating to the question of acknowledgment saving limitation must be considered independently in the light of the words used and the circumstances of the case to determine whether there is acknowledgment of the particular liability. In the certificate of short delivery issued on behalf of the railways, it is no doubt stated that it has been granted without prejudice to the rights of the railways under law. Even if the acknowledgment is held to be a conditional one, namely, that there should be a claim against the railways it has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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