1. In this second appeal the original defendants Nos 1(A) and 1 (B) have challenged the decree of the Courts below directing the appellants to pay an amount of Rs. 3632.25 and proportionate costs of the suit with interest at 6 per annum of Rs. 36,000|- from the date of suit till realisation to the plaintiffs the present respondents plaintiffs by the appellant- railways as carries on account of non-delivery and short delivery and short delivery for of the goods consigned to the railways for carriage. The main contention of the appellants in this second appeal is that the trial Court at Gondia had no jurisdiction to entertain the suit as against the appellants.
2.The plaintiffs who are real brother and grain dealers Gondia, carry on grain business in the name and style 'mathuradas Kaluram Mundra' at Gondai in Bhandra district. On 2-6-1996 respondent No.3 M|s. Nathuran Chandulal, General Merchants at Katabhanji in Orissa STate, entered into a contract with the respondents Nos. 1 and 2 to sell 2220 bags, of gram-dal. Out of these 220 bags were to sod at Rs. 125|- per bag weighing 100 Kgs. Each and the remaining 120 bags each weighing 100Kgs. Were to be sold at Rs. 122|- per bag. These bags were to be laded by respondent NO. 3 M|s. Nathuram Chandulal at his own expenses at Katabhanji with the railways for carrying and delivering the same to the plaintiff at Dhulia. The respondent No.3 M|s Nathuram Chandulal was to present the railway receipt to the plaintiffs at Gondia for the quantity of goods loaded at Katabhanji railway station. Accordingly on 4-6-1966 one Rameshwar on behalf of respondent No. 3 came to Gondia at Plaintiffs shop and informed the plaintiffs that out of the contracted 220 bags of gram-dal the respondent No.3 had loaded 155 bags at Katabhanji railway station to be carried and delivered to the plaintiffs at Dhulia railway station. Rameshwar had brought the railway receipt for the consignment and delivering the same he received on behalf of respondent No.3 from the plaintiffs, the price thereof i.e. Rs. 19,415.25. Under the railway receipt the respondent No.3 was the consignor and he had consigned the consignment to self. This railway receipt was endorsed in favour of the plaintiffs by Rameshwar at Gondia after the payment was received . Accordingly the plaintiffs became the owners and consignees of the consignment. The plaintiffs despatched the railway receipt to their commission agent Bherumal Nandkishor at Dhulia to accept the consignment on behalf of the plaintiffs. On or about 25-6-1966 the plaintiffs received an intimation that though the railway receipt was ... consignment actually contained 139 bags and 16 bags of gram-dal were short and were not there in the consignment. Out of the 139 bags which (were) received at Dhulia , 14 bags which loose and cut. The plaintiffs got open delivery on 25-6-1996 and the railway authorities at Dhulia issued short delivery certificate after actually ascertaining and re-weighing the bags. According to this certificate 16 bags were missing and out of 139 bags, were missing found tampered with and cout and the quantity of gram-dal delivered in these 14 bags was only 4.95 quintals and thus there was shorted that they suffered a total loss of Rs.3758|- ,Rs. 3632-25 being the price of 16 bags non-delivered and short delivery of 9,05 quintal the in 14 bags short which were tampered with, Rs. 100.75 were clamed as expenditure incurred by the plaintiffs and Rs. 25|- as notice and posting charges. These were the main allegations in the plaint.
3. so far the as question of jurisdiction and cause of action is concerned, paras 5 and 6 of the plaint are very material, and relevant portions thereof are extracted below:
'5. It appears that the defendant No. 2 in conspiracy with the servants under the defendants No. 1 (A) and 1 (B) caused losses as stated above to the plaintiffs and committed fraud causing wrongful loss to the plaintiff as mentioned aboved. It further appearps that the railways servants who handled the said consignment during transit might have tampered with 14 bags and might have removed 16 bags which were short and prepared a fraudulent railway receipt in question in collusion with the defendant No.2 and if the railway authority of the defendant 1 (A) got booked 155 bags and 1(B) might have removed those 16 bags completely and caused tampering with 14 bags and ultimately caused the above mentioned and shortage and losses to the plaintiffs with their misconduct and negligence in handling the said consignment during trnsit......
6.That the cause of action for the subject under question in this suit arose at Gondia within the jurisdiction of this Court on 4-6-1966, when the defendant No.2 received the payments for 155 bags from the plaintiff under the above mentioned ......... was endorsed in favour of the plaintiffs at Gondia by the defendant No. 2. Thus plaintiffs was ultimately finalized at Gondia on 4-6-1966 when the defendant No..2 got full payment of 155 bags as price as agreed under the above mentioned agreement and shown in the railway receipt which was fraudulently prepared by the defendants to put the plaintffs to wrongful losses. The plaintiffs are bringing this suit against the defendants who are parties to the said fraudulent act. There is a joint cause of action against the defendants which cannot be separated. Although this Court apparently has no jurisdiction against the defendants 1 and A and 1 B, yet for reasons stated above, the plaintiffs are moving to seek leave of this Court to bring this suit against the defendants 1-A and 1B as they are joint tortfeasors along with the defendant No.2 to avoid multifariousness of suits their different places.' The defendants filed their written statement denying these allegartions and the appellants original defendants Noss. 1(A) and 1(B) also took a plea of want of jurisdiction in Gondia Court.
4.It appears from the record of the trial court that when the suit was instituted on 29-4-1967 in the trail Court, an application at Ex. 6 was filed purporting to be under Section 20(b) of the Civil P,C. and the order sheet dated 3-5-1967 reads :
'Plaintiffs files an applicaiton (Ex.8) for urgent hearing. Order passed on it. Granted Ex. No. 6 taken up. Order passed on it. Granted ..
During the course of hearing of this second appeal an attempt was made to locate this original application Ex. 6 on the record of the trial Court. Since it was not forthcoming from the record, a reference was made to the District Court at Bhandara to find out if such an application was there and was left out of record and a reply has been received that no papers pertaining to this suit are lying there and complete files has been eliminated in the office of the District Judge, Bhandara on 4-6-1975.
5.Since the order-sheets of the trial Court short that such an application was filed at Ex. 6 and order was passed on for granted for the purpose of this second appeal that such an application was filed by the plaintiffs and was granted by the trial Court on 3-5-1967.
6. After recording evidence, the trial Court found that the plaintiffs had proved that they had entered a contract with respondent No. 3 for supply of 220 bags of gram-dal as alleged. The plaintiffs had also proved that on 4-6-1966 Rameshwar representing the respondent No.3 had come to Gondia and received payment from the plaintiffs on behalf of the respondent No. 3 . The trial Court found tha te plaintiffs had they were the owners of the suit consignment. The plaintiffs had also proved that they out of the consignment of 155 bags booked by respondent No.3 at Katabhanji railway station with the railways, at the time of taking delivery at Dhulia 16 bags of gram-dal were not delivered and there was shortage of 9.05 quintals isn other 14 bages due to misconduct and negligence on the part of the railway administration. The trial Court found that they plaintiffs allegations had about conspiracy between the respondent No.3 and the railway administration had not been established, nor was it established that the railway receipt had been fraudulently prepared. The trial Court fond that it had jurisdiction to try the suit even as against the railways. Valid notices and had been issued and served against the defendants. Coming to this conclusion , the trial Court decreed the claim for Rs. 3632.25 against the present appellants alsone. The defendant No.2, the present respondent No.3 was discharged. The appellants then preferred an appeal to the District Court, Bhandara. IN the appeal only two points appear to have been pressed before the lower appellate Court :
that the trial Court had no jurisdiction to try the suit and
that the trial Court had committed an error in passing the decree for Rupees 3632.25 with proportionate costs and future interest against the appellant.
7. Both these contentions wee repelled by the lower appellate court which held that the trial Court at Gondia had jurisdiction to try the suit even as against the present appellants and the decree was correctly passed.
8. The lower appellate Court, therefore, dismissed the appeal with costs. Aggrived by this decision the appellants,. Union of India . Repressenting the railway administrations, have preferred this second appeal.
9. The only point that was has been canvassed in this second appeal before me by Shri. S.V. Naik on behalf of the appellants is tha the trial Court had no jurisdiction to try the suit. It is contender that on plaintiffs own admission in the plant . no part of cause of action as against the present appellants arose at Gondia. The allegations of fraud and conspiracy between the appellants and the respondent No.3 have not been established are and, theirefore, so far as the appellants are concerned, the tribunal Court had no jurisdiction to try the suit. In this respect reliance is placed on the provisions of Section 80 of the Indian Railway Act, 1980.
10. Section 80 of the Indian Railways Act, 1890 is in the following terms :
'80 . Suits for compensations - A suit for compensation for loss of the life of, or personal injury to , a passenger or for loss, destruction, damage, deterioration or non-delivery of animals or goods may be institutied, -
if the passenger was, or the animals or goods were booked from the one station to another on the railway of the same railway administration , against that railway administration.
If the passenger was, or the animals or goods were, booked through over the railways of two or more railway administrations, against the railway administrations, against which the passenger obtained his pass or purchased his stickled or to which the animals or goods were delivered for carriage, as the cse may be, or against th railway administrations on whose railway the destination station lies, or the loss, injury, destruction, damage or deterioration ococured; and, in with either case, the suit may be instituted in a Court having jurisdiction over the place at which the passenger obtained his pass or purchased his ticket of the goods were deliver for carriage, in as the case may be, or over the place in which the destination station lies, or the loss, injury, destruction, damages or deterioration occurred '.
11. Shri Naik for the appellants contends that in this litigation the trial Court was not be the Court having jurisdiction over the place where the goods were consigned i.e. at Katabhanji nor over the be delivered i.e. Dhulia, nor is there any allegation in the plaint anywhere that any of loss, ... took place within the jurisdiction of the trial court at Gondia. Therefore, it is contended by Shri Naik that since the plaintiffs are placing ther responsibility for the loss or damage caused to the plaintiffs on the appellants as carriers of goods, the suit as against the appellants had necessary to be instituted either in the Court having jurisdiction at Katabhanji where the goods were consigned or in the Court at Dhulia or the plaintiiffs could institute the suit in any other Court having jurisdiction over the places during the transit of the goods at which the plaintiffs could afire that the loss or deterioration to the goods consigned to the appellants as carriers in fact took plce. As Gondia Court does not come in any of the three categories, it has no jurisdiction to try the suit as against the appellant. In this respect Shri s,,V, Naik ahs placed reliance on the observations of E,.s. Venkataramaiah, J. in Union of India v. C.r. Prabhana & sons : AIR1977Kant132 .
12. ON the other hand it is contended by shri Abidali that since a unity of cause faction as between the appellants and the respondents No.3 was alleged in the plaint on the basis of the conspiracy and fraud alleged therein, there was a joint cause of action which could not be split up a between the different defendants and, therefore, the suit and had to be instituted in one court against them all and it was properly instituted in the trial Court at Gondia which had jurisdiction in respct of the matter in dispute because part of the cause of action took place at Gondia whichhad jurisdiction in respect of the matter in dispute because part of the cause of action took place at Gondia since it was Rameshwar the agent of the respondent No. 3 who had handed over the railway receipt to the plaintiffs at Gondia and had received the price of the goods consigned from the plaintiffs at that place. Threfore, since part of thee cause of action on allegaions of fraud and conspiracy between different defendants took suit, place at Gondia , the trial Court at Gondia had jurisdiction to try the whole suit more particularly under the provisions of Section 20(c) of the Civil P.C. and also because the plaintiffs had obtained permission ofr the court to institute the suit in the gondia court under the provisions of s. 20(b) of the Civil P.C. , so far as the appellants are concerned. Considering these that the provisions of O.I.R. 3 of the Civil P.C. may help the plaintiffs is respect of proper joinder of different defendants in the suit, but would be completely irrelevant on the point of jurisdiction of the Corut to try the suit Order 1 Rule 3 of the Civil P.C. is as follows:
'As persons may be joined in one suit as defendants where -
any right to relief in respect of or arising out the same act or transaction or series of acts or transactions is alleged to exist against such person whether jointly, severally or in the alternative and
if separate suits were brought against such persons, any common question of law or fact would arise'
13. It is true the allegations of conspriacy and fraud as between the defendants the railway administrations, and respondent No.3 contained in the plaint would serve to make out a unitary cause of action against the defendants making their jointer in one suit proper. As observed earlier that would not affect the question of jurisdiction, because if the trial Court had no jurisdiction as against the appellants-railway administration, the appellants the mere existence of a unitary, cause of action as against the appellant railway and the respondent No.3 jointly would nor with the help of provisions of O.I.R. 3 of the Civil P.C. justify a jointer of all the defendants ina court not having jurisdiction over some of them. It is true in a case of such nature, if it could be shown that any part of that unitary cause of action against all the defendants took place within the jurisdiction of the trial court, the trial court would get jurisdiction under the provision of Section 20(c) of the Civil P.C> In a proper case the court granting permission under Section 20(b) of the civil P.C. could also help the plaintiffs but the main difficulty which presents itself in the present case in the circumstances that it would seem to the me that the provisions of Secion 20 of special provision overriding the general provision. The provisions of Section 80 of the Indian Railway ACt, specify under its sub-clauses for institution of suits as against the railway administration from their liability as carries of goods. Section 80 pof the Indian Railways Act is contained in Chapter VII and the heading of the chapter is 'Responsibility of Railway Administration as Carriers. It cannot be disputed that in the present suit liability is attempted to be reached to the appellants primarily and mainly as carriers of goods consigned to them for carriage, may be there are overriding allegations of fraud and conspiracy also . The liability of the appellant springs under the contract of carriage of goods consigned. It would seem to me, therefore, that while Section 20 of the Civil P.C. is a general provision for institution of suits of a civil nature in Courts , in Section 80 of the Indian Railways ACt, 1890 there is a special provision in regard to institution of suits for enforcing the liability of the railways as carries and, therefore, it would seem that the special provision of Section 80 of the Indian Railways Act, 1980 at either the place where the goods were i.e. in the court having jurisdiction of katabhanji or in the Court having jurisdiction where the goods were to be delivered and were in act not delivered and short delivered or at any other place in between where the plaintiffs could allege the loss destruction or damage to the goods consigned occurred. In this respect there is no allegation at all and clearly the suit is not instituted in the court having jurisdiction at katabhanji or Dhulia, nor is there any allegation in the plaint that any loss, destruction or damage to the goods consigned took place within the jurisdiction of the trial Court at Gondia . In these circumstances it would seem to me that the provisions of section of 80 of the Railway Act, 1980 override the provision of Section 20 of the Civil P.C. and court of the civil Judge, Junior Division, at Gondia which tried the suit had no jurisdiction to try the suit, In this view I am supported by the observations of E.s. Venkataramaiah, J. of Karantaka High Court in Union of India v C.R. Prabhanna & Sons : AIR1977Kant132 where I it was been observed in paras 5 and 6 of the reported judgment :
5. SEction 80 as it original stood laid down that notwithstanding in any agreement purporting to limit any..... far removed from the booking station, place of destination and the place where the loss of goods had occurred, when they were not concerned with the negotiation fo the railway receipt. It cannot also be said tha the Union of India either resides or carries on business or works for gain in every part Indian wherever a railway station is situated. The suits against the Union of India under s. 80 have to be filed only in the courts specified therin. I am therefore, of the view that s. 20 of the C.P.C. has to be read as not being applicable to suits falling under s. 80 of the Railways Act after ?act 39 of 1961 came into force. Since it is not disputed that the trial court is if not one of the courts referred to in S. 80 of the Railways Act, the trial court had no jurisdiction to try the suit,. The decree passed by the courts below are, therefore, set aside . The trial court is directed to return the plaint to the plaintiffs for presentation to proper court '.
14. It is contended by Shri Abidali for the respondents Nos. 1 and 2 that the finding of the trial Court and that as per agreement between the plaintiff on the one hand and the respondent No,3 on the other hand the price was agreed to be paid at Gondia and wa sin fact paid at Gondia through one Rameshwar, was not challenged in the lower appellate Court and, therefore, it was conceded in the lower appellate court that part of cause of action did arise within the jurisdiction of the trial Court at Gondia proper under Section 20(c) of the Civil P.c. But once it is held that Section 80 of the Railway Act, overrides s. 20 of the Civil P,C. this argument or even the contention that the leave of the Court under Section 20(b) of the civil P.c. had been obtained , would be whether the suit has been instituted in a proper Court having jurisdiction as laid down by Section 80 of the Railways Act, 1890.
15. The result is that this second appeal is allowed. The decree passed by the Courts below are set aside and instead the trial court is directed to return the plaint to the plaintiffs (respondents Nos. 1 and 2 ) for presentation to proper Court. There shall be no order as to costs in any one of the three courts.
16. Appeal allowed.