Judgement

Appeal (No. 71 of 1936) from a decree of the High Court in its appellate jurisdiction (August 22, 1935) reversing a decree of the High Court in its original civil jurisdiction (June 8, 1934).

The question involved in this appeal was whether the appellants, the Commissioners for the Port of Calcutta, a statutory body constituted under the Calcutta Port Act (Ben. Act III. of 1890) were liable for the damage caused by the flooding of a pumping station belonging to the respondents, the Corporation of Calcutta, a statutory body constituted under the Calcutta Municipal Act (Ben. Act III. of 1923), and whether the claim, if any, was barred by time under s. 142 of the Calcutta Port Act, which requires a suit " for anything done, or purporting or professing to be done, in pursuance of this Act " to be brought within three months " from the day on which the cause of action in such suit shall have arisen/ The damage due to the flooding, which occurred in July, 1926, had been held to be Rs.44,612.9.4. The suit was filed on July 20, 1928. The respondents alleged that the flooding was due to the existence of two holes under the roof of a brick-lined tunnel carrying a suction pipe, which holes the appellants, during exploratory work in connection with the laying of an additional pipe for the respondents from the river Hugli under their (the appellants) railway to the respondents pumping station, had, it was alleged, negligently made or had allowed to remain open.

The main facts, which were not in dispute, appear from the judgment of the Judicial Committee.

Buckland J., who tried the action, held that there had been no negligence on the appellants part, and that in any event their employee in making the holes in question was acting on their behalf in pursuance of the Calcutta Port Act, and that the respondents’ claim was accordingly time-barred under s. 142 of that Act, and he dismissed the suit.

On appeal it was held (Derbyshire C.J. and Costello J. in separate concurring judgments) that the cause of the damage to the respondents pumping station was the appellants negligence in leaving the holes open, and that the appellants, in making the holes and leaving them open in order to ascertain and keep marked the line of the southern tunnel, were acting in pursuance of an agreement that they had come to with the respondents to lay another pipe from the river Hugli to the respondents pump house, and that that was no part of the ordinary functions of the Calcutta Port Commissioners, but was undertaken and done by them for their own convenience ; and that the appellants could not therefore be said to have made the holes as something done or purporting or professing to be done in pursuance of the Calcutta Port Act, and therefore the plea of limitation failed. The appeal is reported at ( 1935) I.

L. R. 63 C. 592.

1937. June 15, 17,18. Fergus Morton K.C., L. P. E. Pugh K.C. and T. B. W. Ramsay for the appellants. Dunne K.C. and J. M. Pringle for the respondents.

July 26. The judgment of their Lordships was delivered by LORD ALNESS. This is an appeal from a judgment and decree of the High Court of Judicature in Calcutta, dated August 22, 1935, which reversed the judgment and decree of the same Court in its original civil jurisdiction, dated June 8, 1934, and which decreed the respondents suit to recover from the appellants the sum of Rs.44,612.9.4 as damages for negligence.

The questions at issue are whether the appellants are liable for the damage caused by the flooding of the respondents pumping station, and whether their claim was barred by time in virtue of a provision in the Calcutta Port Act, 1890. The principal facts in the case are not in dispute, nor is the amount of damages due by the appellants, if liability is established. As their Lordships have formed a clear opinion that the respondents claim is statute barred, and, as their Lordships, in that view, deem it unnecessary to form or express an opinion on the question of negligence,