Harbans Lal Sohni vs Pirzada Ghulam Ahmad and others

S. M. Fazl Ali, C. J.

This is a plaintiffs appeal in a suit for the recovery of Rupees 1900/- from the defendants, being the price of the articles of food supplied at an.

At Home given in honour of the late Bakshi Ghulam Mohd when he laid down the reins of his office as Prime Minister of the State. The plaintiff's

case was that in connexion with the aforesaid At Home he was approached by the defendants and asked to supply certain articles of food at an

evening party. In obedience to the orders placed by the defendants, the plaintiff supplied articles of food, but a sum of Rs. 1900/- remained

outstanding and has not been paid to him, despite several demands.

The suit was contested by defendants 1, 2 and 4 who denied having placed any orders with the plaintiff for supply of any article of food at the

Even- (Contd. on Col. 2)

For the price of food or drink sold by the keeper of a hotel, tavern or lodging house.

A perusal of this article would clearly show that this provision is confined only to the price of food sold by the keeper of a hotel, tavern or

lodging house. The next question that arises is where the articles of food should be sold. In our opinion it is clear in Article 8 that the articles must

be sold to the consumer at the hotel, tavern or lodging house. The provision prescribes one year's limitation and the intention of the legislature

seems to be that this Article should apply only to such cases where the delivery is made at the premises or sites of the hotel, tavern, or lodging

house. In the Indian Limitation Act which has recently been amended in the rest of India the period of limitation has been extended to three years.

Mr. Kaul, however, relied on an authority of the Rangoon High Court is S. Pershad v. Firm of Unica. AIR 1940 Rang 17. and particularly on

the following observations of a single Judge of that Court:

The best definition which I can think of is to say that food and drinking Party. The plaintiff examined three witnesses in support of his case, but no

evidence in rebuttal was led by the defendants. The trial Court accented the plaintiff's case and decreed the suit. On appeal, the learned District

Judge found that the suit was barred by Article 8 of the Limitation Act and so it was entitled to be dismissed on that ground alone. The learned

Judge accordingly dismissed the suit without entering into the merits of the case.

Mr. Tiku counsel for the appellant raised a short question of law. He submitted that on a true and Proper interpretation of Article 8 of the

Limitation Act it would appear that this Article has absolutely no application to the facts of the present case. Mr. Tiku argued that Article 8 is

applicable only where food is supplied by the keeper of a hotel, tavern or lodging house (as the case may be). In the instant case it is the admitted

case of the parties that food was supplied in the New Secretariat Premises where the evening party was given. P. Ws. Ghulam Mohd. and H. L.

Soni have deposed in support of this case. Mr. Kaul, however, seriously contested the validity of this argument and submitted that Article 8 is of

much wider amplitude and embraces any transaction under which articles of food are supplied even outside the premises of the hotel concerned.

Article 8 runs thus:-

One year When the food or drink is delivered. the price of which would come under Article 8,must be meals or articles of food which are either

consumed on the premises or are taken away by the customer which are intended for, or capable of, immediate consumption in the state in which

they are sent out, that is to say without cooking: though I am not quite sure if merely heating and not really cooking that is, the necessity for their

being heated, would alter them from food and drink to goods, but this point is not required in this case.

These observations do not at all imply that even if the articles of food are supplied outside the hotel still Article 8 would apply. The learned Judge

has taken care to mention that the articles of food should be consumed at the Premises or sent out or taken away by the customer which means

that if after the articles are sold and the customer does not choose to consume the same at the hotel but takes them out or removes them outside

the hotel, still Article 8 would apply. These observations therefore support our view that the main factor which governs the application of Article 8

is the sale and delivery of food at the hotel, tavern or lodging house.

Reid, J. in Bhag Singh v. Dhirta Singh, (1908) 9 Pun LR 428, 429 observed as follows:-

The practice is that the liquor is consumed on the vendors' premises, and the vendors' accounts, accepted by the lower appellate Court contain

entries for small sums, e. g., 16.9.4 1/2 annas, which indicate immediate consumption on the premises. 'Tavern' is defined in Webster's Dictionary

as 'a public house where travellers and other transient guests are accommodated with rooms and meals: an inn, a hotel, especially in modern times,

a public house licensed to sell liquor in small quantities'.

The last definition appears to cover a village liquor shop, such as that at which the defendant-petitioner purchased the subject matter of this suit"".

These observations also indicate that Article 8 would apply only to cases where the articles are sold at the hotel, tavern or lodging house

concerned.

That it seems to us that the two essential conditions for the application of Article 8 are:

that there must be a sale by the keeper of a hotel, tavern or lodging house.

that the delivery must be completed at the premises of the hotel, tavern or lodging house.

It therefore follows that unless these two conditions are satisfied, Article 8 would not apply. In this view of the matter, it is manifest that in the

present case the articles of food for which orders were placed by the defendants, were not supplied at the hotel but at the Premises of the New

Secretariat and therefore Article 52 would apply to this case and not Art. 8.

It might be mentioned here that in para (3) of the plaint the plaintiff has made a clear averment that the articles of food were prepared at the

New Secretariat lawns and the defendants in their written statement did not specifically deny this averment, although they denied that they had

placed any orders with the plaintiff. In view of this unchallenged averment, there is sufficient material on the record to prove that these articles were

prepared at the New Secretariat lawns and not in the Premises of the plaintiff's hotel.

Lastly it was argued by Mr. Kaul that there is no legal evidence to show that the defendants had placed any orders with the plaintiff. We are,

however, unable to agree with this contention because two witnesses of the plaintiff namely Ghulam Mohd. and the Plaintiff himself have clearly

stated that the orders were placed by the defendants and one of the defendants had actually Placed the order in presence of others. The

defendants did not choose to adduce any evidence in rebuttal. In these circumstances there is no reason to distrust the unchallenged testimony of

the two witnesses produced by the plaintiff.

For the reason given above, the appeal is allowed, the judgment and decree of the learned District Judge, are set aside and the decree of the

trial Court is restored.

There will be no order as to Costs.

S. Wasiuddin, J.

I agree.