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Chandra Mohan Saha and anr. Vs. Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. Nos. 119 and 120 of 1952
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Sections 79 and 115 - Order 1, Rule 13 - Order 41, Rule 23 - Order 43, Rule 1; Railways Act, 1890 - Sections 3, 3(6) and 80
AppellantChandra Mohan Saha and anr.
RespondentUnion of India (Uoi) and anr.
Appellant AdvocateS.K. Ghose and P. Choudhury, Advs.
Respondent AdvocateD.N. Medhi, G.A. for Opposite Party No. 1
DispositionRevision allowed
Excerpt:
- - 8. the only point, therefore, which is important to consider is whether the assam railway administration, as such, should be made a party to the suit, and whether the failure to do so was in violation of the provisions of section 80, indian railways act. but the plaint must clearly indicate, in order to establish a cause of action, the facts on which the liability is sought to be fastened on the union of india. munshi's main contention is that the indian railways act 9 of 1890 clearly contemplates a state railway administration being sued by its manager, and that this special enactment is not affected by the subsequent general enactment contained in section 79, civil p. in my opinion, the indian railways act of 1890 contains no clear indication that a suit against a state railway..... sarjoo prosad, c.j. civil revision no. 119 of 1952 1. the petitioner in this case instituted money suit no. 50 of 1949 in the court of the additional subordinate judge at dhubri for recovery of a sum of rs. 2,210/8/-as compensation for loss on account of certain goods booked at amingaon railway station. the union of india was made, a party defendant to the suit as the owner of tha assam railway to which the goods were consigned. 2. the plaintiff's case was that one, haripada saha, an employee of the plaintiff who is also a party defendant to the suit, had purchased 125 pairs of 'saris' and 11 pairs of 'dhotis' on behalf of the plaintiff from a marwar firm at gauhati for a sum of rs. 2,073/-. he packed the cloth in gunny bags and booked them at the amingaoa railway station, as per bill.....
Judgment:

Sarjoo Prosad, C.J.

CIVIL REVISION NO. 119 OF 1952

1. The petitioner in this case instituted Money Suit No. 50 of 1949 in the Court of the Additional Subordinate Judge at Dhubri for recovery of a sum of Rs. 2,210/8/-as compensation for loss on account of certain goods booked at Amingaon Railway Station. The Union of India was made, a party defendant to the suit as the owner of tha Assam Railway to which the goods were consigned.

2. The plaintiff's case was that one, Haripada Saha, an employee of the plaintiff who is also a party defendant to the suit, had purchased 125 pairs of 'saris' and 11 pairs of 'dhotis' on behalf of the plaintiff from a Marwar firm at Gauhati for a sum of Rs. 2,073/-. He packed the cloth in gunny bags and booked them at the Amingaoa Railway Station, as per Bill of Lading, Ex. 1. The goods were kept in charge of the Guard of tha train concerned and they were to be delivered to the petitioner at Sapat-gram, but no delivery was made. Thereafter the petitioner served notices under Section 77, Indian Railways Act and Section 80, Civil P. C. on the appropriate authorities claiming a sum of Rs. 2,075/10/- as price of the cloth, and a further sum on account of interest.

3. The Opposite Party, the Union of India, appeared in the suit and filed a written Statement challenging its maintainability and tha validity of the notices, but the suit-was decreed by the Additional Subordinate Judge at Dhubri. On appeal, however, the Additional District) Judge, L. A. D. by his judgment, dated 6-6-52 set aside the decree of the trial Court and remanded the case for re-trial after giving the petitioner an opportunity to amend the plaint by making the Assam Railway Administration party defendant to the suit; the Court did not decide the case on merits. It is against the said order of the learned Additional District Judge that this petition has been presented.

4. It is important to observe that at the trial, the Dominion of India abandoned the issue regarding ths cause of action, for the suit and the validity of the notices and does not appear to have pressed the same. The only points urged at the appeal stage, for the Opposite Party were (i) that the suit was liable to be dismissed, as not being in accordance with Section 80, Indian Railways Act, and (ii) that the plaintiff had no right to sue. The question of the right to sue does not at present arise, because the Court below has given no decision on the point, but proceeded to deal with the first question and remanded the case for re-trial. The contention which prevailed there was that under Section 80, Indian Railways Act, the plaintiff was bound to implead the Railway Administration where the booking took place or the Railway Administration where the loss occurred.

5. There is no doubt in the present case that the place of booking and that of destination

were both under the Assam Railway. The

learned Judge thought that the Assam Railway

Administration was a necessary party to the suit

and it had not been made a party. He relied

in this connection upon a decision of this Court

in--'The Union of India v. Dr. O. Hussain',

AIR 1952 Assam 51 (A), which followed a decision of the Nagpur High Court in--'Dominion

of India v. Firm Museram Kishunprasad', AIR

1950 Nag 85 (B). He thought that the objection should prevail although the point of non

joinder of necessary parties was not raised in

the pleadings, and no issue had been framed

thereon. He directed that the plaintiff should

be given a chance to amend the plaint and bring

the Assam Railway Administration, as such, on

the records of the case, and the trial should

proceed afresh on that footing.

6. On behalf of the Opposite Party, a preliminary objection has been taken to the maintainability of the application on the ground that

an appeal lay and the application in revision

is incompetent. The case, however, does not

fall under Order 41, Rule 23, Civil P. C., and the

objection was, therefore, not seriously pressed.

7. On behalf of the petitioner, it has been contended that the point of non-joinder of parties not having been specifically raised at the trial, it should not have prevailed in the appellate Court. Reliance is placed on Rule 13 of Order 1, Civil P. C., to show that the objection not having been taken at an early stage, it should be deemed to have been waived. Rule 13, however, has no application to a case where a necessary party to the suit is not before the Court and no effective decree can be made in the absence of such a party. The suit in such cases is inherently defective and the point can be taken at any stage, provided no new facts have to be alleged or proved. If, therefore, it is held that the Railway Administration of Assam was a necessary party to the suit and has not been made a party, then the objection must prevail and the order of the Court below should be affirmed. If, on the contrary, it is held that the Railway Administration, as such need not be made a party and is adequately represented, then the order of remand must be held to be vitiated with illegality and material irregularity, and the case must go back to the Court below for disposal according to law.

8. The only point, therefore, which is important to consider is whether the Assam Railway Administration, as such, should be made a party to the suit, and whether the failure to do so was in violation of the provisions of Section 80, Indian Railways Act. As the point was of some importance and it involved a re-consideration of the decision of this Court in--'AIR 1952 Assam 51 (A), we directed that this case, along with Civil Revn. No. 120 of 1952, in which also the identical question arises, should be heard by a Full Bench. Both parties have cited a large number of decisions to prop up their respective contentions, but before I turn to the decisions, I consider it expedient to examine for myself the relevant provisions of the law.

9. Section 80, Indian Railways Act, divested of its irrelevant parts for the present, may be thus reproduced:

'Notwithstanding anything in any agreement purporting to limit the liability of a railway administration, a suit for compensation for loss, destruction or deterioration of goods may be brought either against the railway administration to which the goods were delivered by the consignor thereof, or against the railway administration on whose railway the loss, destruction or deterioration occurred.'

The section evidently contemplates that for the loss, destruction or deterioration of goods, a suit may be brought against the railway administration to which the goods were consigned or, alternatively, against the railway administration an which the loss occurred. The words 'railway administration' have not been defined in the section itself and, therefore, one has to look beyond the four corners of the section to find out what this expression means. It must be, however, conceded that these railway administrations, namely, the railway administration to which the goods were consigned, or the railway administration on which the loss occurred, are treated as different units and separate and distinct entities. But this is only so with the object of ascertaining the liability of the Administration or Administrations concerned as the goods may travel over various railways. The distinction acquires special significance where these railway administrations are owned by different bodies, and not by the same owner. 'Railway administration' has been defined in Section 3(6) of the Act. It says

' 'railway administration' or 'administration' in the case of a railway administered by the Government or a State means the Manager of the railway and includes the Government or State.'

Therefore, in a case where the railway is administered by a Government or State, a suit under Section 80 of the Act can be brought against the Government or the State concerned. Thus, where the railway administration to which the goods were consigned and the railway administration on which the loss occurred were both owned by the same Government or State, itj follows from the language of Section 3(6) that a suit can be brought against the State or Government which owns both the railways. But the plaint must, on the face of it, state the caused of action as to how and in what capacity the State is sought to be made liable whether as owner of the railway to which the goods were consigned, or as owner of the railway on which the loss occurred, or both.

If these facts are not stated in the plaint, then there is no cause of action against the Government or the State which owns the railway administration concerned, and the mere fact that the Government or the State is impleaded as a party defendant to the suit, wilt not give a cause of action to the plaintiff where, on the recitals in the plaint itself, none exists. I do not see anything in the section to prevent the party from suing the Government or the State as owner of a particular railway, because in that case the Government or the State is the 'railway administration' and adequately represents the railway which it administers. I do not see any reason why if all the necessary-facts are there in the plaint and it is shown how the Government concerned has been made a party to the suit, it should be still insisted upon that the 'railway administration', as such, should be made a party to the suit. It is, on the face of it, a tautological fallacy, because a Government or a State, on the terms of the definition itself, is the 'railway administration'

and, as such, liable to be sued within the meaning of Section 80, Railways Act.

10. On behalf of Government, much stress has been laid on the expression 'and includes the Government or the State' occurring in Sub-section (6) of Section 3 of the Act. It is argued on this basis that the Manager of the railway administration represents the administration as such and that the Government or the State has only a secondary position. There is no substance in this argument, In the Railways Act of 1879, the word 'manager' alone occurred, because most of the railways in those days were managed & administered by the railway companies &, therefore, the managers of those companies or the railway company itself represented those railway administrations. The words with reference to 'Government' or the 'State' were introduced in the Act of 1890 advisedly with a view to enlarge the definition of 'railway administration' so as to include Government or State owning such Railways. It is the common rule of construction that whenever any meaning, either wider or more limited, than its natural connotation is sought to be assigned to an expression occurring in a statute, it has to be defined. The word 'include' or 'shall be deemed to include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute, or where it is intended that while the term defined should retain its ordinary meaning, its scope should be videned by specific enumeration of certain matters which its ordinary meaning may or may not comprise so as to make the definition enumerative and not exhaustive and when it is so used, these words or phrases must be considered as comprehending not only such things as they signify according to their natural impart, but also those things which the interpretation clause declares that they shall include: vide--'Mt. Surajbansi Kuer v. Larho Kuar', AIR 194(5 Pat 310 (C),

--'Dilworth v. Commr. of Stamps', (1899) A. C. 99 (D);--'King v. B. C. Fir and Cedar Lumber Co. Ltd', AIR 1932 PC 121 (E);--'Province of Bengal v S.M. Hingul Kumari', AIR 1946 Cal 217 (F);--'Madras Central Urban Bank Ltd. v. Corporation of Madras', AIR 1932 Mad 474 (G);--Official Assignee of Bombay v. Chandulal Chimanlal', AIR 1924 Sind 89 (H);

--'Jeramdas v. Emperor', AIR 1934 Sind 96 (I); (1949) AC 433 (J).

11. Section 79, Civil P. C. enacts that 'in a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be

(a) in the case of a suit by or against the Central Government,--the Union of India,--and

(b) in the case of a suit by or against a State Government--the State.'

12. This section, therefore, makes it imperative that where the suit is against the Central Government, the Union of India must be made a party to the suit. I have already held that in the case of a railway administration owned by the Union of India, the Union of India represents the railway administration and is to be sued within the meaning of Section 80, Indian Railways Act. That being so, the suit in such a case must be brought against the Union of India, and not against the Manager of the Railway Administration. If the Manager of the railway administration is impleaded as a party

defendant to the suit, it will not vitiate the action, but he would be merely an unnecessary party whose presence on the record was not required by the law. In this view of the matter, there is no difficulty in applying the law The suit can be brought against the Union of India or the Government concerned which owns the offending railway or the railway administration liable for the loss or damage. But the plaint must clearly indicate, in order to establish a cause of action, the facts on which the liability is sought to be fastened on the Union of India. Otherwise, the suit will have to be dismissed for want of a cause of action. I am quite conscious of the fact that the Railways Act, for certain purposes, does regard the various railway administrations as definite and separate entities; for instance, in Section 77 of the Act it is required thai a person shall not be entitled to any compensation for loss, destruction or deterioration of goods to be, carried unless his claim to compensation has been preferred in writing by him or on his behalf to the railway administration within six months from the date of delivery of the goods for carriage by the railway. Similarly Section 140 provides for service of notice on railway administrations. This distinction between one railway administration and another has to be maintained in order to fulfil the purposes of the Act. But the Railways Act does not profess to lay down the procedure to be followed in the case of suits instituted against a railway administration. Such suits, as all other suits, are governed by the Code of Civil Procedure. Section 80, Civil P. C. also contemplates that in the case of a suit against the Central Government, when it relates to a railway, a notice under the section shall go to the General Manager of that railway, but the suit has to be against the Central Government.

13. I am fortified in laying down the above principles by various judicial pronouncements. The first case to which I would refer is an illuminating decision of Fawcett J., in--'Sukhanand Shamlal v. Oudh & Rohilkhand Rly.' AIR 1924 Bom 306 (K), where the learned Judge examines the evolution of the law in all its bearings and with reference to its historical background. With great respect to the learned Judge, I would adopt most of the reasonings given by him. In that case, a preliminary objection was raised that the Oudh and Rohilkhand Rly., was owned and worked by Government and, therefore, the Secretary of State for India in Council, should have been the person against whom the suit should have been instituted. The plaint, though amended, merely showed 'The Oudh and Rohilkhand Rly. Administration by its Manager and Agent' as party defendant to the suit, and it was contended for the plaintiff that the suit was maintainable against the railway administration in that form, and that the Secretary of State for India in Council need not have been sued. The learned Judge repelled this contention and accepted the preliminary objection. I am tempted to quote some paragraphs from that judgment.

The learned Judge discusses the matter thus: 'Mr. Munshi's main contention is that the Indian Railways Act 9 of 1890 clearly contemplates a State Railway Administration being sued by its Manager, and that this special enactment is not affected by the subsequent

general enactment contained in Section 79, Civil P. C. 1908 that suits by or against the Government shall be instituted by or against the Secretary of State for India in Council.

In my opinion, the Indian Railways Act of 1890 contains no clear indication that a suit against a State Railway can be brought against the Manager, and on the contrary, the definition of 'railway administration' in the case of a railway administered by the Government, as including the Government, suggests that a suit like this should be brought against the Government. On this point, I entirely agree with the view taken in the Oudh case relating to this same railway:--'Traffic Superintendent, E. B. and E. I. & O. & R. Rlys. v Hafiz Abdul Rahman', (1901) Ind Ry, Cases (2nd Edn) (L). I adopt the arguments given in the report of the Court's judgment at PP. 814, 815.

I may add that the Statement of Objects and Reasons appended to the Bill which became Act 9 of 1890 clearly shows that the inclusion of the Government or State in the definition of 'railway administration' was proposed for the purposes of Chap. 7 of the Act relating to the responsibility of Railway Administrations as carriers. But, apart from that, the Act itself shows that that must have been the object. It is difficult to see what other intention could have led to this alteration of the previous definition contained in Section 3, Indian Railways Act of 1879.

Mr. Munshi drew my attention to Sections 72-77, 97. 140 and 145 of the Act of 1890; but there is nothing in these which indicates that the Manager, and not Government should be sued in the case of a State Railway. Sections 72-77 use the general words 'railway administration' which under the, definition in the Act, includes Government. Section 97 applies only to a railway company & not to a State Railway; so, there is nothing incongruous in the provision that the plaintiff in the suit contemplated, shall be the Secretary of State for India in Council; and it cannot be said that this in any way suggests that the Manager, and not Government, is to be sued in the case of a State railway. Section 140 relates to notices like those provided for in Section 77, and not to suits; it is also purely permissive in its terms. Section 145, so far as it relates to Civil, Courts merely contains provisions corresponding to those in Order 27, Rule 2, so as to avoid the necessity of personal attendance by the Manager, as chief representative of the railway (cf. Order 27, Rule 3, Civil P. C.). It certainly cannot be read as implying that the Manager can be sued as sufficiently representing a State Railway'. The learned Judge further pointed out that a Manager of a State Railway can very well represent the railway administration in its ordinary business concerns and its general management; .........but

'when we come to Chap. 7 of the Act, however, which deals with responsibility of railway administrations as carriers, then there is (so far as suits are concerned) 'something repugnant in the subject' 'in treating the Manager as a proper defendant duly representing the State Railway, and the Courts should, therefore, fall back on the subsidiary part of the definition in Section 3(6), which expressly says Government

are included in the words 'railway administration'.

It was, therefore, held that the Secretary of State for India in Council being the proprietor working the railway, was clearly the proper defendant in the action. The revenues of the Government of India were liable to pay any damages awarded to the plaintiffs, and the suit lay against the Secretary of State under Section 32(2) of the Government of India Act, 1935, corresponding to Section 65, Government of India Act 1858. In coming to that decision, the learned Judge relied upon the leading cases of--'P. & O S. N. Co. v. Secy, of State', vide 5 Bom H. C. R. App A. 1, at pp. 12, 13, (M) and--'Shivabhajan v. Secy. of State', vide 28 Bom 814 (N) and held that Section 79, Civil P. C. clearly applied. Section 79, Civil P. C., 1908, it was rightly pointed out, was not really an enactment subsequent to the Indian Railways Act of. 1890, because it merely reproduced the provision contained in, Section 416 of Act 10 of 1877 and Act 14 of 1882.

14. The above, decision of Fawcett, J., was followed by a Division Bench decision of the same Court in--'Hirachand Succaram v. G.I.P. Rly. Co. Bombay', AIR 1928 Bom 421 (O), Patkar, J., who delivered the judgment in the case, laid down the law as follows:

'The next question is whether a suit against a State railway must be brought against the Secretary of State for India in Council. Under Section 3, Cl. (6), Indian Railways Act, 'railway administration' includes the Government, and the Secretary of State being the proprietor of the railway, the suit must be brought against the Secretary of State for India in Council under Section 79, Civil P. C. and the revenues of the Government of India would be liable to pay the damages awarded to the plaintiff and the suit would lie against the Secretary of State under Section 32, Clause (2), Government of India Act, 1915. See vide--'5 Bom H. C. R. (App. A.) 1, at pp. 12, 13, (M)'. We agree with the view of Fawcett, J. in--'AIR 1924 Bom 306 (K)', that a suit against a State Railway must be brought against the Secretary of State for India in Council'.

This view has also found favour in two decisions of the Patna High Court, which are both Division Bench judgments of that Court. The first is in--'Shaikh Elahi Bakhsh v. E. I. Rly. Administration'. AIR 1931 Pat 326 (P). There the learned Judges held that where the administration of a railway vests in the Government, a suit against the Railway must be brought against the Secretary of State in Council, the Government being a necessary party, and a suit against the railway administration through their agent is not a proper suit against the Secretary of State in Council as contemplated by Section 79, Civil P. C. and must be deemed to be instituted against a wrong person. The language is quite emphatic.

I need not for the present say anything in regard to the observation of the learned Judges as to the service of notice under Section 80, Civil P. C., because the Code has been amended since, and it now provides that notice in such cases should go to General Manager of the railway concerned. The other decision is in--'N. W. Ry. Co. v. Dwarka Ram Srikrishun Ram', vide AIR 1931 Pat 393 (Q). In this case, the suit was against two State Railways belonging to Government, but was not instituted against the Secretary of State for India in Council, but

against the Chief Operating Superintendent, and the Chief Commercial Manager, respectively. It was held that having regard to the provisions of Section 79, Civil P. C., the suit had to be instituted against the Secretary of State for India in Council and that not having been done, the suit was not maintainable. Here again 'it is not necessary for me to examine the reasonings of the learned Judges in regard to the service of notice under Section 80, Civil P. C., because of the change in the law indicated by me already.

15. From the above decisions, it clearly follows that a suit against the Railway Administration represented by the Manager, where the said railway is owned by Government, is not a competent suit. The suit in all such cases must be against Government, which is a necessary party to the action.

16. The decision in--'AIR 1950 Nag 85 (B)', which was followed by this Court in--'AIR 1952 Assam 51 (A),' now needs to be examined in the light of the principles discussed above. I may say at the outset that these decisions are justifiable on their own facts. In the Nagpur case, certain goods were consigned from Rajahmundry Station on the M. S. M. Railway to be delivered at Howbagh Station on the B. N. Railway. When the wagon containing the goods was received at Howbagh some of the goods were found missing. On these allegations, the plaintiff, after serving a notice upon the Secretary to the Central Government Commerce and Railway Department, instituted a suit for recovery of damages. The defenca was that the loss did not occur on the B.N. Ry. It was also contended that no notice had been served upon the M. S. M. Railway, to which the goods were consigned, nor was that railway made a party to the suit. It had not been proved that the loss occurred on the B. N. Railway. Indeed the finding was that there was no proof of any loss at all. On these facts, the suit had to be dismissed. There are, however, some general observations made in the judgment which have encouraged the argument that the railway administration, as such should have been made a party to the suit, I have already said that for certain purposes the railway administrations are to be treated as separate entities with separate existence and personalities; but if their Lordships proposed to lay down that the railway administration, as such, through its Manager, should have been made a party defendant to the suit, although the Government, as owner of the railway, was a party, then I may respectfully point out that the observation is not only obiter but against the correct view of the law propounded in the earlier part of this judgment. It would not be correct to say that suing the Governor-General as representing the entire State-owned railways was not a proper form of suit because that would render Section 80, Civil P. C. otiose and meaningless. On the contrary, as I have explained, Section 80 has to be read in the light of the definition of 'railway administration' as given in Section 3, Railways Act, and in the case of State-owned railways, it would not be right to hold that a suit against a railway administration would include Government, but not 'vice versa'.

Observations of the nature indicated above, as I have shown, are merely obiter, and I,

therefore, need not tarry to examine the decision any further. The decision of this Court was also a decision on similar facts. The suit had not been brought either against the railway administration to which the goods were delivered, namely, the G. I. P. Railway or the E. I. Railway on which the loss occurred. The suit was brought, on the contrary, against the Union of India as owner of tile B. B. C. I, Railway and the Assam Railway. The suit had, therefore, to be dismissed, because, on the face of it, no cause of action could be established against the Union of India as owner of those two railways. The law required that notices under Section 77, Railways Act and Section 80, Civil P. C., had to be served on the appropriate authorities mentioning the cause of action and the intention to sue the railway administration where the goods were consigned or where the loss occurred. There is nothing to show in the decision that these necessary formalities of the law had been complied with, and quite obviously it seems they were not. In those circumstances, the learned Judges were justified in dismissing the suit. But the decision is no authority for holding that a suit would be defective although the Government as owning a particular railway administration against which there is a good cause of action, is a party defendant to the suit.

Before I close, reference may also be made to a decision in--'Radha Shyam Basak v. Secy of State', AIR 1917 Cal 640 '(R), which was cited at the Bar. This case also supports the view which I have taken of Section 3(6), Indian Railways Act. There, Chatterjee, J., who delivered the leading judgment, observed thus:

'I think Section 140 has not the effect of cutting down the connotation of the words 'Railway Administration' as contained in Section 3(6). It only provides for the convenience of the party aggrieved that if he wants to serve the notice on the Manager of the State Railway or the Agent of the Railway Company, he must do so in one of the ways mentioned there. If the party chooses to give notice to the Government or the Native State or the Railway Company, there is nothing in the Act to prevent his doing so, the latter alternative may enhance his trouble, but it cannot take away his rights. I think the clause 'includes the Government' has the effect of extending the meaning of the words Railway Administration as the said words might not mean the Government when there was a Manager.'

The decision, however, is not very material so far as the present discussion is concerned. Indeed in--'B & N. W. Ry. Co. Ltd. v. Kameshwar Singh', AIR 1933 Pat 45 (S), it was held that Section 140 merely provides a safe and unanswerable method for serving a claim on the railway administration and enacts in effect that service upon the agent is service upon the company. But S 77 enacts that the service must be upon the administration, and inasmuch as a company must conduct its 'business through its authorised agents, the question to be decided in each case is--whether the particular official served is, in fact, in the circumstances of the case, the duly authorised agent of the railway company. If the company, by its course of business, holds up any particular official as competent to deal with claims, then service of notice upon such an official must be taken, as

against the company, to be service upon the company. This view was affirmed by a Full Bench decision of the same Court in--'Governor General in Council v. Gouri Shankar Mills Ltd.', AIR 1949 Pat 347 (T). I need not, however, dilate upon this point of service of notice under Section 77. Indian Railways Act. I have already held that for certain purposes, railway administrations have to be treated as separate units under the Indian Railways Act.

17. To sum up, I hold that, in the circumstances, the Union of India being a party defendant to the suit as owner of the Assam Railway adequately represents the railway administration concerned, and that it is not necessary that the Assam Railway Administration, as such, though the Manager or anybody else, should be impleaded as a party defendant to the suit. The suit, as framed, is quite competent. It would be a different matter if the cause of action alleged in the plaint is not found to be established by the Court of appeal below. The question whether the plaintiff has established his cause of action is to be decided on the evidence adduced in the case.

18. The order of remand cannot, therefore, be sustained as the procedure adopted by the Court of appeal below was illegal and materially irregular. The case should now go back to the Court of appeal below for disposal of the appeal according to law and on the merits, after an adequate consideration of the points involved,

CIVIL REVISION NO. 120 OF 1952.

19. The facts in this case are somewhat different, though the point involved is common. In this case also, the plaintiff petitioner sued for recovery of a sum of Rs. 3,128/- as compensation for the loss of cotton seeds etc. The goods were consigned at the Dhubri Railway Station

and were to be delivered at Jamuna Bridge. The plaintiff's case is that the railway receipt was not handed over to him and, therefore, he could not get delivery of the goods. Pie then served notices under Section 77, Indian, Railways Act and Section 80, Civil P. C., on the appropriate authorities, but having received no satisfaction, instituted the suit. The Union of India was impleaded as a party defendant to the suit as owner of the Assam Railway, and the O. T. Railway, now known as the North Eastern Railway The, station to which the goods were consigned was on the Assam Railway. But the defendant challenged the validity of the notices and the plaintiffs' right to sue for damages. The first Court decreed the suit, but, on appeal, the same Additional District Judge, relying upon the decision of this Court already discussed by me in--'AIR 1952 Assam 51 (A), remanded the case to the trial Court for giving the plaintiff an opportunity to amend his claim by making the O. T. and the Assam Railways, as such, parties to the suit.

20. It is not in question that the plaint specifically stated that the Dominion of India was being sued as owner of both the Assam and the O. T. Railways: In my opinion, the order of remand in this case also is misconceived and

unjustified and for the reasons already given by me, has to be set aside.

21. This case is also remitted to the Court of Appeal below for decision of the appeal according to law.

22. The application in each case is allowed but without costs

Ram Labhaya, J.

23. I agree.

Deka, J.

24. I agree.


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