Bootamal vs Union of India

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 507 of 1960

Decision Date: 27 March, 1962

Coram: K.N. Wanchoo, P.B. Gajendragadkar

In the matter titled Bootamal versus Union of India, the Supreme Court rendered its judgment on 27 March 1962. The opinion was authored by Justice K. N. Wanchoo, who sat with Justice P. B. Gajendragadkar. The case is reported in the 1962 All India Reporter at page 1716 and also in the 1963 Supreme Court Reports (1) at page 70, with subsequent citations appearing in later reports. The core issue concerned the operation of the Indian Limitation Act of 1908, specifically Article 31, as it applied to a suit for compensation against a carrier for the non‑delivery of goods.

The factual background was that on 5 August 1947 the appellant, Bootamal, booked two consignments with the North‑Western Railway for transport from Gujranwala – which after Partition lay in Pakistan – to Jagadhri. The railway failed to deliver the consignments. Consequently, on 22 January 1948 the appellant issued a notice under section 80 of the Code of Civil Procedure, demanding compensation for the value of the goods. In that notice the appellant asserted that the cause of action arose on 21 August and 30 August 1947 respectively, the dates on which the railway refused delivery.

Subsequently, on 1 December 1948 the railway informed the appellant that the goods remained at Gujranwala and could be dispatched only after the appellant secured the necessary permits from the Pakistani authorities. The appellant, after waiting, filed a suit for compensation on 13 December 1949. The respondent, Union of India, argued that the suit was time‑barred because it was not filed within one year of the time “when the goods ought to be delivered,” as prescribed by Article 31 of the Limitation Act.

The Court held that the suit was indeed barred by limitation. It explained that the expression “when the goods ought to be delivered” in Article 31 must be given its ordinary grammatical meaning and cannot be expanded by equitable considerations. According to the provision, limitation begins at the expiry of any period fixed by agreement for delivery; if no such agreement exists, limitation commences after a reasonable time has elapsed, measured from the point at which delivery should have occurred. The reasonable time is to be assessed based on the circumstances of each case.

The Court rejected the view adopted by some High Courts that limitation starts from the date of the carrier’s final refusal to deliver. It observed that, had the legislature intended the limitation period to run from the date of refusal, it would have used clear language to that effect. Moreover, the commencement of limitation is not ordinarily altered by the conduct of the parties or by their correspondence, unless such communication contains an acknowledgment of liability by the carrier or otherwise affects the reasonable time for delivery.

Applying these principles to the present case, the Court found that delivery was expected within five to six months from the date of booking, a period also reflected in the section 80 notice issued by the appellant. The suit was filed more than a year after that period had expired, and therefore the limitation period had long lapsed. Accordingly, the Court affirmed that the suit was barred by limitation. The decision also referenced the earlier case Dominion of India v. Firm Aminchand for comparative purposes.

The Court recorded that the decision in Bholanath (F. B.), rendered by the Punjab High Court on 2 May 1956, was approved, whereas the authorities Jugal Kishore v. The Great Indian Peninsular Railway (1923) I.L.R. 45 All. 43; Bengal and North Western Railway Company v. Maharajadhiraj Kameshwar Singh Bahadur (1933) I.L.R. 12 Pat. 67, 77; Jai Narain v. The Governor‑General of India, A.I.R. (1951) Cal. 462; and Governor‑General in Council v. S.G. Ahmed, A.I.R. (1952) Nag. 77 were disapproved. The judgments in Nagendranath v. Suresh, A.I.R. (1932) P.C. 165 and General Accident Fire and Life Insurance Corporation Limited v. Janmahomed Abdul Rahim, A.I.R. (1941) P.C. 6 were merely referred to. The matter before the Court was a civil appeal numbered 507 of 1960, arising from the decree dated 19 March 1958 of the Punjab High Court (Circuit Bench) at Delhi in R.F.A. No. 299 of 1951. Counsel for the appellant, namely K.L. Gosain, R. Ganapathy Iyer and G. GopalaKrishnan, were instructed, while counsel for the respondent, B. Sen and P.D. Menon, represented the Union of India. The judgment was delivered on 27 March 1962 by Justice Wanchoo, who observed that the appeal, based on a certificate issued by the Punjab High Court, raised the question of how Article 31 of the Limitation Act should be interpreted. The appellant, a sole proprietor conducting business in Gujranwala under the names G.M. Bootamal and Company and Gopal Metal Rolling Mills and Company, had instituted a suit in forma pauperis seeking recovery of a sum exceeding Rs 24,000 from the Union of India, alleging non‑delivery of goods booked with the railway. On 5 August 1947, shortly before the Partition, the appellant had handed two consignments to the North Western Railway at Gujranwala for carriage to Jagadhari; both consignments were entered on the same day with separate railway receipts. The goods never arrived at Jagadhari. After making inquiries and receiving no delivery, the appellant lodged a claim with the railway on 30 November 1947 for the value of the undelivered goods. Subsequently, on 22 January 1948, the appellant issued a notice under Section 80 of the Code of Civil Procedure, stating that despite repeated reminders and demands the goods booked under the two receipts remained undelivered. The notice asserted that the value of the goods was Rs 24,189 ¼, that the railway was liable for the loss owing to its negligence, and that the cause of action arose on 21 August and 30 August 1947 and on later dates when the appellant faced refusals. The notice concluded that if the amount was not paid, a suit would be filed against the railway. Nevertheless, after the notice, correspondence continued between the appellant and the railway, culminating in the railway’s reply dated 1 December 1948, which informed the appellant that the consignments were still at Gujranwala because the North Western Railway could not dispatch them due to export restrictions imposed by the Government of Pakistan. The railway requested the appellant to obtain a permit from the Chief Controller of Exports and Imports in Karachi and from the Custodian of Evacuated Property, West Punjab, and to forward the permits to the Station Master at Gujranwala so that the goods could be sent to Jagadhari. The railway further warned that failure to produce the required permits would result in the consignments being disposed of under Pakistani law, and that the railway would not be responsible for any loss, damage or destruction. This exchange marked the final communication between the railway and the appellant, after which the appellant instituted the present suit on 13 December 1949. The Union of India, as respondent, raised a number of defenses against the claim.

On 1 December 1948 the railway informed the appellant that the two consignments remained at Gujranwala because the North Western Railway had withheld their dispatch in compliance with export restrictions imposed by the Government of Pakistan. The railway therefore requested that the appellant obtain a permit from the Chief Controller of Exports and Imports in Karachi as well as a permit from the Custodian of Evacuees’ Property in West Punjab, and forward those permits to the Station Master at Gujranwala so that the goods could be forwarded to Jagadhari. The railway further warned that failure to produce the required permits would result in the consignments being disposed of under the law then applicable in Pakistan, and that the railway administration would not be liable for any loss, damage or destruction to the goods. After this communication no further correspondence occurred between the railway and the appellant. Consequently the appellant instituted the present suit on 13 December 1949. The Union of India opposed the suit and raised a series of defenses, which are not the subject of the present appeal. The trial court framed seven issues, the most significant of which concerned limitation. The trial court found in favour of the appellant on all the issues, including the limitation question, and awarded a decree of Rs 24,189‑4/‑ while ordering each party to bear its own costs. The Union of India appealed the judgment to the High Court, principally contending that the suit filed on 13 December 1949 was barred by the limitation period. Under Article 31 of the Limitation Act, the limitation period against a carrier for compensation for non‑delivery or delay begins to run from the time “when the goods ought to be delivered.” The High Court was called upon to interpret the phrase “when the goods ought to be delivered.” Divergent opinions emerged in the High Court, prompting reference to a Full Bench decision in Dominion of India v. Firm Aminchand Bholanath (Civil Appeal 97 of 1949, decided 2 May 1956). That Full Bench held that the limitation under Article 31 commences on the expiry of the time fixed between the parties, and in the absence of such an agreement, it begins after a reasonable time determined according to the circumstances of each case. Applying that principle, the High Court considered the circumstances prevailing in August 1947 and concluded that the goods should have been delivered within five to six months of booking. Accordingly, the High Court held that the suit, filed in December 1949, was barred by the one‑year limitation period, set aside the trial court’s decree, dismissed the suit, and directed each party to bear its own costs. Because the case involved a substantial question of law, the High Court granted a certificate to the appellant, bringing the matter before the Supreme Court.

The appellate court set aside the decree of the trial court and ordered the dismissal of the suit. Although the suit was dismissed, the court directed that each party bear its own costs. Because the matter raised a substantial question of law, the High Court issued a certificate to the appellant, which brought the dispute before this Court. The provision at issue, Article 31, states that a suit against a carrier must be filed within one year, the limitation period beginning from the date when the goods ought to have been delivered. The text of Article 31 therefore refers to situations of non‑delivery or delay in delivery of goods and specifies the time from which the limitation period starts to run.

The meaning of the phrase “when the goods ought to be delivered” has been examined in a series of decisions of various High Courts. The central issue in those cases has been the point at which the limitation period commences. Ordinarily, the words of a statute are to be given their strict grammatical meaning, and considerations of equity are not to be introduced, especially in provisions that prescribe time limits for filing suits or other legal proceedings. This principle was articulated by the Privy Council in two earlier cases. In Nagendranath v. Suresh the Council observed that “the fixation of periods of limitation must always be to some extent arbitrary and may frequently result in hardship,” but added that “in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is the only safe guide.” In General Accident Fire and Life Assurance Corporation Limited v. Janmahomed Abdul Rahim the Council held that “a limitation Act ought to receive such a construction as the language in its plain meaning imports… Great hardship may occasionally be caused by statutes of limitation in cases of poverty, distress and ignorance of rights, yet the statutory rules must be enforced according to their ordinary meaning in these and in other like cases.”

Two principal lines of reasoning have emerged from the High Court decisions on the interpretation of the third column of Article 31. The first line of reasoning is based on the view that it is for the railway to establish the time at which the goods ought to have been delivered; consequently, the limitation period can begin only when the railway finally declares that it is unable to deliver the goods. The second line of reasoning rests on the principle of estoppel. It holds that if the railway engages in correspondence indicating that efforts are being made to trace the goods, the railway is estopped from asserting that the limitation period began at an earlier date, before the correspondence on the matter concluded. Although the majority of decisions have followed the first approach, there have been dissenting opinions that adopt the estoppel-based reasoning. The analysis of these positions will be considered in the subsequent discussion.

The Court observed that most judgments have adhered to the two lines of reasoning previously described and have concluded that the limitation period commences only when the railway finally refuses to deliver the goods; occasional dissenting opinions have also been recorded, and the Court indicated that it would examine several of those decisions later, citing the reports A.I.R. 1932 P.C. 165 and A.I.R. 1941 P.C. 6. The Court then turned to the plain grammatical construction of the words contained in Article 31. It noted that, after the amendments made by the Limitation Acts of 1877 and 1909, Article 31 presently governs two distinct categories of cases: first, cases in which there has been no delivery of goods, and second, cases in which there has been a delay in delivering goods. In both categories, the limitation period begins to run from the date on which the goods ought to have been delivered. Consequently, the expression found in the third column of Article 31 must be given a meaning that applies equally to the two situations described in the first column. Whether the circumstance involves non‑delivery or delayed delivery, the limitation period, in either event, starts from the date when delivery ought to have occurred. The Court further affirmed that there is no dispute that, when a contract of carriage contains a term fixing the time for delivery, that term determines the date referred to as “when the goods ought to be delivered” within the meaning of the words used in the third column of Article 31. The difficulty, however, arises in those cases where the contract of carriage contains no express or implied term from which the delivery date can be inferred. It is precisely in those situations that the interpretation of the words in the third column of Article 31 becomes critical. The Court held that, irrespective of whether the case involves late delivery or complete non‑delivery, those words can convey only a single meaning. By reading the expression in its plain grammatical sense, the Court concluded that the words can be understood to mean that the limitation period starts after a reasonable period has elapsed, on the expiry of which delivery should have been made. In other words, “when the goods ought to be delivered” signifies the reasonable time required for the carriage of the goods from the place of dispatch to the place of destination when no contractual term exists to specify the delivery date, either expressly or by implication. The Court illustrated this principle by considering a claim based on delay in delivery. In such a claim the goods have ultimately been delivered, but the plaintiff alleges that the delivery was tardy. The question of whether a delay occurred can only be resolved by determining what would constitute a reasonable time for the carriage of the goods from the point of dispatch to the destination. Any period of time that exceeds this reasonable duration would, by definition, be a case of delay.

In interpreting the expression contained in the third column of Article 31 with respect to a situation of non‑delivery, the Court held that the same meaning applies as in cases of delayed delivery, namely, the reasonable period required for the carriage of the goods from the place of dispatch to the place of destination. Accordingly, the view adopted by certain High Courts—that the period of limitation should commence on the date when the railway finally refuses to deliver the goods—is untenable, because the wording of the third column does not lend itself to an interpretation that incorporates the carrier’s ultimate refusal. To illustrate this point, the Court compared the language used in the third column of Article 31 with the language employed in other provisions of the Limitation Act where the legislature deliberately intended the limitation period to begin on a refusal. For example, Article 18, which provides for a suit for compensation against the Government where acquisition is not completed, expressly states that the period begins from “the date of the refusal to complete.” Similarly, Article 78, which concerns a suit by the payee against the drawer of a dishonoured bill of exchange, provides that the period starts from “the date of the refusal to accept.” Article 131, which relates to a suit to establish a periodically recurring right, declares that limitation begins “when the plaintiff is first refused the enjoyment of the right.” These examples demonstrate that, where the legislature wished to anchor the limitation period to a final refusal, it employed clear and specific terminology. Since the third column of Article 31 contains no such terminology, the Court concluded that the legislature did not intend a different commencement point for non‑delivery. Moreover, the fact that Article 31 addresses both non‑delivery of goods and delay in delivery confirms that, in either circumstance, the limitation period starts only after a reasonable time for carriage has elapsed. The Court further observed that what constitutes a reasonable time will vary according to the facts of each case, and that the carrier may ultimately be required to establish what that reasonable period is; however, this requirement does not alter the interpretation of the words in the third column. The Court also held that, in general, there is no estoppel concerning the commencement of the limitation period arising from any correspondence between the carrier and the owner of the goods, except where such correspondence contains an acknowledgement of liability by the carrier, which could create a new starting point. In sum, the Court affirmed that the expression in the third column of Article 31 refers to the reasonable time needed for the carriage of goods from the place of dispatch to the place of destination, and that this reasonable time is not ordinarily affected by the subsequent conduct of the parties.

The Court observed that the reasonable time for carriage of goods from the place of despatch to the place of destination is a fixed period that is not altered by any later actions of the parties. Accordingly, the Court held that the view expressed by the Full Bench in the case of Aminchand Bholanath, namely that limitation in such matters begins when the time fixed by the parties expires, and in the absence of any agreement the limitation begins when a reasonable time, to be determined according to the facts of each case, expires, is correct.

The Court then turned to examine a number of representative decisions of the High Courts that dealt with the same question. In the case of Jugal Kishore v. The Great Indian Peninsular Railway, it was noted that when the railway company, by its own conduct, caused the plaintiff to await the result of an enquiry, it was surprising to find a defence of limitation raised on its behalf. The Court further remarked that the correspondence between the parties showed that the matter was under investigation and that there was no refusal to deliver the goods for a period well within one year of the suit. In those circumstances the Court was unable to hold that the suit had been filed more than a year after the expiry of a reasonable time within which the goods should have been delivered. This decision appears to indicate that the words in the third column of Article 31 mean that limitation starts from the expiry of the reasonable time within which delivery should have occurred. However, the decision also took into account the railway’s subsequent conduct and the fact that there was no refusal to deliver the goods until a later date. Because the suit was instituted within one year of the final refusal to deliver, the Court held that the action was timely.

The Court expressed some difficulty in accepting that later correspondence between the railway and either the consignor or the consignee could affect the starting point of limitation, especially when such correspondence merely demonstrated that the railway was trying to trace the goods. The Court stated that the period spent in tracing the goods has no relevance for determining the reasonable time required for carriage from despatch to destination.

In the case of Bengal and North Western Railway Company v. Maharajadhiraj Ramhwar Singh Bahadur, the Court observed that the defendants, being the railway, deliberately ignored the plaintiff’s repeated requests for attention to his claim and thereby misled him into delaying the filing of his suit. The Court held that the railway could not now contend that the suit was brought too late. This case seems to be based on the principle of estoppel. Yet, the Court again found it difficult to understand how the starting point of limitation under Article 31 could be altered merely because the railway ignored the plaintiff’s requests.

The Court noted that the plaintiff had repeatedly asked the railway to give attention to his claim. It then referred to the decision in Jai Narain v. The Governor‑General of India, where the Court had held that the expression “the time when the goods ought to be delivered” under Article 31 does not mean the ordinary time at which delivery would normally be expected. Rather, in a situation where the contract does not specify a fixed time for delivery, the relevant time is the moment when, according to subsequent promises made by the railway, the parties are informed that the railway is conducting inquiries about the goods. The Court expressed difficulty in accepting the view that the clear wording of the third column of Article 31 permits the starting point of the limitation period to be altered merely because the railway later engaged in conduct that indicated it was tracing the goods. It further cited Governor‑General in Council v. S. Ahmed, wherein the Court observed that for a considerable period the railway authorities continued to hope that the remaining consignments could be delivered and were actively making investigations along the route. In such circumstances, it would be unfair to require the plaintiff to rush to file a suit before the railway’s inquiries had concluded. Accordingly, the Court stated that the limitation period should commence only when the railway makes a definite statement that it is unable to deliver the goods. The Court remarked that this reading appears to locate the commencement of limitation at the railway’s final refusal to deliver, whereas the literal wording suggests that limitation begins when the goods ought to be delivered—namely, when the reasonable time for carriage from the place of dispatch to the place of destination has elapsed, assuming no specific delivery term exists in the contract. The appellant argued that, although the third column plainly indicates that the limitation starts when the reasonable period for carriage expires, the later conduct of the railway, as disclosed in any correspondence exchanged with the consignor or consignee, could influence the determination of that reasonable time. The Court observed that if such correspondence concerns only the railway’s efforts to trace the goods, it would not be material for deciding when the goods ought to have been delivered. However, if the correspondence contains information that sheds light on factors affecting the reasonable time for carriage—from dispatch to destination—then the Court may consider that material. Moreover, any element in the correspondence that bears upon the question of reasonable time may be taken into account in assessing the commencement of the limitation period.

It was observed that if the railway attempted to deny its earlier representation, it could be estopped from doing so to that extent. However, any correspondence between the railway and the parties could be considered only for the purpose of ascertaining the reasonable time for delivery, and not to suggest that the railway’s later actions extended that reasonable time by the period spent in tracing the goods. Where the correspondence contained material that enabled the court to determine the reasonable time in a particular case, such correspondence was deemed relevant. For instance, if a letter disclosed that a bridge on the route between the place of dispatch and the place of destination had been destroyed by floods, and that destruction explained the delay, the court could rely on that information to fix the reasonable time under those circumstances. This illustration demonstrated that the reasonable time depended on the facts of each case and that, absent any special circumstances, the reasonable time would ordinarily be the same as the time normally required for the carriage of goods between two stations.

Moreover, the court noted that there was no difficulty in fixing the reasonable time when the majority of the consignment had been delivered and only a portion remained undelivered. In the absence of special circumstances, the reasonable time could be taken as the period within which the bulk of the goods had been delivered. The court referred to the decisions in Union of India v. Meghraj Agarwalla (1) and Gajanand Rajgoria v. Union of India (2), which held that when part of a consignment had been delivered, that delivery date, notwithstanding any inquiries shown in correspondence and in the absence of contrary circumstances, should be treated as the date by which the goods ought to have been delivered as a whole within the meaning of Article 31. Consequently, the court found the High Court’s interpretation of the words in the third column of Article 31 in the Aminchand Bholanath case to be correct.

The court then examined the reasonable time within which the goods in the present case should have reached Jagadhari from Gujranwala. The appellant, in his replication, asserted that, under ordinary circumstances, the goods should have arrived at Jagadhari before 15 August 1947. In a notice dated 22 January 1948, the appellant further stated that the cause of action arose on 21 August and 30 August 1947 and on later dates when he encountered refusals to deliver the goods, as referred to in the authorities (1) A.I.R. (1958) Cal. 434 and (2) A.I.R. (1955) Pat 182. The appellant’s filing of a notice under section 80 of the Code of Civil Procedure in January 1948 was taken as evidence that, even considering the extraordinary conditions caused by the partition of India in August 1947, the appellant was satisfied that the goods ought to have been delivered before the date of that notice. The court concluded that, given the facts, the goods should have been delivered within five to six months of dispatch on 5 August 1947, a period consistent with the appellant’s own notice dated 22 January 1948, which was approximately five and a half months after consignment.

The Court observed that the notice issued under section 80 of the Code of Civil Procedure in January 1948 demonstrated that, even after allowing for the extraordinary circumstances created by the Partition of India in August 1947, the appellant was convinced that the goods should have been delivered before the date of that notice, namely 22 January 1948. The Court held that if the goods had not been delivered by that time and the cause of action had not arisen, there would have been no justification for the appellant to issue a notice under section 80 in January 1948. Accordingly, the Court found no difficulty in agreeing with the High Court that the goods ought to have been delivered within five or six months of the date on which they were consigned, that is, within the period ending on 22 January 1948, which was about five and a half months after the consignment dated 5 August 1947. Because the notice itself was given on 22 January 1948, the Court concluded that the suit filed in December 1949 was clearly barred by limitation, for the reasonable time for delivery could not be extended beyond the date of the notice. The Court further examined the correspondence between the parties and held that nothing in that exchange affected the calculation of the reasonable time required for the carriage of the goods from Gujranwala to Jagadhari. Although on 1 December 1948 the appellant received information from the Railway that the goods remained in Gujranwala due to restrictions imposed by the Government of Pakistan and that he was required to obtain the necessary permits, the Court stated that this fact was irrelevant to the determination of the reasonable time for carriage. Consequently, the Court affirmed that the High Court correctly held the suit to be barred by limitation under Article 31.

The Court noted that counsel for the appellant had drawn its attention to the Displaced Persons (Institution of Suits) Act (No. XLVII of 1948), as amended by the Displaced Persons (Institution of Suits and Legal Proceedings) Amendment Act (No. LXVIII of 1950), and argued that, being a displaced person, the appellant was entitled to file the suit under section 8 of the amended Act up to 31 March 1952. The Court observed that in paragraph nine of the plaint the appellant relied on his status as a displaced person only to establish jurisdiction of the Delhi court, and not to raise a defence of limitation. The respondent, in the written statement, denied that the appellant was a displaced person, and the matter was not further pursued on that issue. While counsel for the appellant reiterated that the appellant was a displaced person and therefore should benefit from the 1948 Act as amended, the Court indicated that ordinarily such a prayer would not be entertained when the point had not been raised in the plaint. However, in view of the appellant’s claim of being a registered displaced person in Delhi and the fact that the suit had been filed in forma pauperis, likely because of the hardships caused by the Partition, the Court thought that the appellant should be afforded an opportunity to prove his claim under the 1948 Act as amended. The Court expressly refrained from expressing any opinion on whether the appellant indeed qualified as a displaced person or whether he was entitled to the benefit of the amended Act.

The appellant asserted that he was a displaced person and therefore claimed entitlement to the benefit of the Displaced Persons (Institution of Suits) Act of 1948 as amended by the Displaced Persons (Institution of Suits and Legal Proceedings) Amendment Act of 1950, which, according to him, would make his suit timely. Ordinarily the Court would not have permitted such a prayer because the issue had not been raised in the plaint. However, the appellant’s claim that he is a registered displaced person in Delhi, coupled with the fact that he filed the suit in forma pauperis likely due to hardships arising from the partition of India, led the Court to consider allowing him an opportunity to prove his status under the 1948 Act as amended by the 1950 amendment. The Court expressly refrained from expressing any opinion on whether the appellant truly qualifies as a displaced person or whether he is entitled to the statutory benefit. Nevertheless, in the interest of justice, the Court decided to give the appellant a chance to present his case under the two Acts for the purpose of determining the limitation question, subject to his payment of all costs incurred by the respondent up to the present date, irrespective of the ultimate outcome of the suit. Accordingly, the appeal was allowed and the matter was remanded to the trial court for exclusive consideration of the limitation issue based on the Displaced Persons (Institution of Suits) Act, No. XLVII of 1948, as amended by the Displaced Persons (Institution of Suits and Legal Proceedings) Amendment Act, No. LXVIII of 1950, after permitting both parties to adduce any necessary evidence. If the trial court concludes that the suit is within the limitation period under these Acts, it shall render a decree in favour of the appellant for the amount claimed, reduced by the costs already incurred by the respondent. Conversely, if the trial court finds that the suit is barred by limitation under the two Acts, the suit shall be dismissed permanently, and any further costs shall be determined at the trial court’s discretion. The appeal was therefore allowed.