The main legal point established in the judgment is that the suit was not barred by limitation under Art.31 of the Indian Limitation Act, and that the plaintiff was entitled to exclude the period between the date of delivery of the goods and the date on which the claim was preferred in computing the period of limitation for the suit.

1. The defendant, the Southern Railway, is the appellant in this case. The suit is for damages. 100 bags of sugar purchased by the plaintiff were railed from Hathuva Railway Station to Quilon. The railway receipt, which was sent through the Alleppey Branch of the Imperial Bank, was endorsed in favour of the plaintiff by that bank. The plaintiff took delivery of the consignment at Quilon on 23.10.1944. On taking delivery it was found that there was a shortage of 19 bags. The value of the 19 bags would come to Rs. 1,1116-4 As. On 8.2.1945 the plaintiff lodged a claim before the Head Office of the Railway Company at Trichinopoly in respect of the short delivery. On 15.2.1945 the Company sent a reply directing the plaintiff to send a copy of the railway receipt and other relevant documents. They were sent in due course. There were other claims of the plaintiff pending settlement with the Railway Company and the plaintiff sent a consolidated list of all the claims on 21.3.1946. As this claim was not satisfied even after a reminder sent on 4.9.1946 the plaintiff sent a suit notice through his advocate on 5.5.1947. In the reply sent by the defendant on 10.5.1947 the plaintiff was asked to furnish further particulars relating to the claim. Accordingly the plaintiff sent on 19.7.1947 a letter containing the necessary particulars. No reply was, however, received to this letter. The plaintiff filed this suit in the Alleppey Munsiff's Court on 10.2.1948 for Rs. 1,116-4-0 and interest at 6 per cent per annum from 8.2.1945, the date on which he lodged the claim in respect of the short delivery.

2. The main contentions raised by the defendant were that the Alleppey Munsiff's Court had no jurisdiction to try the suit and that the suit was barred by limitation. According to the defendant the suit ought to have been instituted either at Hathuva where the contract was entered into or at Quilon where it was to be performed. The contention regarding limitation was that the suit was governed by Art.23 and 24 of the Travancore Limitation Act corresponding to Art.30 and 31 respectively of the Indian Limitation Act. Both these contentions were repelled by the court below. On the question of jurisdiction that court held that since the railway receipt relating to the consignment of the goods was endorsed in favour of the plaintiff by the Imperial Bank at Alleppey on payment there by the plaintiff of the price of the goods the cause of action arose in part at Alleppey and that the suit could therefore be instituted in the Alleppey Munsiff's Court. We are unable to agree with this view of the learned Munsiff. The endorsement of the railway receipt by the Imperial Bank in favour of the plaintiff or the payment of the price of the goods by the plaintiff to the Bank has nothing to do with the cause of action relating to the short delivery of goods by the defendant company. So far as the short delivery is concerned the cause of action arose either at Hathuva where the contract for delivery was entered into, or at Quilon where it was to be performed. We are, therefore, inclined to accept the contention of the appellant that the suit ought to have been filed either in the court having jurisdiction over the Hathuva Railway Station or in the Quilon Munsiff's Court. But that does not mean that we should dismiss the suit. S.21 of the Code of Civil Procedure prohibits the appellate court from dismissing a suit on the ground that it was instituted in a wrong place unless there has been a consequent failure of justice. The section reads thus:

"No objection as to the place of suing shall be allowed by an appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice".

It has been held in many cases that even though the objection as to the place of suing has been rais