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South Eastern Railway Administration and anr. Vs. Govindlal Gopikishan Mundra and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtMumbai High Court
Decided On
Judge
Reported inII(1984)ACC183
AppellantSouth Eastern Railway Administration and anr.
RespondentGovindlal Gopikishan Mundra and ors.
Excerpt:
.....plaintiffs by rameshwar at gondia after the payment was received. 2 received the payments for 155 bags from the plaintiffs, udder the above mentioned fraudulent railway receipt which was endorsed in favour of the plaintiffs at gondia by the defendant no. 80. suits for compensation--a suit for compensation for loss of the life of, or personal injury to, a passenger or for loss, destruction, damage, deterioration or good may be instituted. 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. it is well known that special provisions..........and re-weighing the pags. according to this certificate 16 bags were missing and out of 139 bags, 14 bags were found tampered with and cut and the quantity of gramdal delivered in these 14 bags was only 4.95 quintals. the plaintiffs claimed 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 quintals in the 14 bags which were tampered with, rs. 100.75 were claimed as expenditure incurred by the plaintiffs and rs. 25/- as notice and posting charges. these were the main allegation ia the plaint.3. so far as the 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.....
Judgment:

Joshi, J.

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 cent per annum on Rs. 36,000/- from the date of suit till realisation, to the plaintiff the present respondents Nos. 1 and 2 as damages caused to the plaintiffs by the appellant-railways as carriers on account of nondelivery and short delivery 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 jursidiction to entertain the suit as against the appellants.

2. The plaintiffs who are real brothers and grain dealers a Gondia carry on grain business in the name and style 'Mathuradas Kaluram Mundra' at Gondia in Bhandara District. On 2-6-1966 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 220 bags of gram dal. Gut of these 220 bags, 100 bags were to be sold at Rs. 125/- per bag weighing 100 kgs each and the remaining 120 bags each weighing 100 kgs. These bags were to be loaded 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 and to receive payment 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 gramdal 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 Bherumaj Nandkishor at Dhulia to accept the consign- ment on behalf of the plaintiffs. On or about 25-6-1966 the plaintiffs received an intimation that though the railway receipt was containing 155 bags, the wagon carrying the consignment actually contained 139 bags and 16 bags of gramdal were short and were not there in the consignment. Out of the 139 bags which (were) received at Dhulia, 14 bags were loose and out. The plaintiffs got open delivery on 25-6-1966 and the railway authorities it Dhulia issue short delivery certificate after actually ascertaining and re-weighing the pags. According to this certificate 16 bags were missing and out of 139 bags, 14 bags were found tampered with and cut and the quantity of gramdal delivered in these 14 bags was only 4.95 quintals. The plaintiffs claimed 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 quintals in the 14 bags which were tampered with, Rs. 100.75 were claimed as expenditure incurred by the plaintiffs and Rs. 25/- as notice and posting charges. These were the main allegation ia the plaint.

3. So far as the 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 Nos. 1(A) and 1(B) caused losses as stated above to the plaintiffs and committed fraud causing wrongful loss to the plaintiffs as mentioned above. It further appears that the railway 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 rail way authority of the defendant 1(A) got booked 155 bags the servants of the defendant No. 1(A) and 1(B) might have removed those 16 bags completely and caused tampering with the bags and ultimately caused the above mentioned shortage and losses to the plaintiffs with their misconduct and negligence in handling the said consignment during transit....

6. That the cause of Section 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 plaintiffs, udder the above mentioned fraudulent railway receipt which was endorsed in favour of the plaintiffs at Gondia by the defendant No. 2. Thus the conspiracy to cause losses to the plaintiffs was ultimately finalized at Gondia on 4-6-1966 when the defendant No. 2 got full payment df 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 plaintiffs 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-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 1-B as they are joint tortfeasors along with the defendant No. 2 to avoid multi famousness of suits at different places.' The defendants filed their written statement denying these allegations and the appellants original defendants Nos. 1(A) and 1(B) also took a plea of want of jurisdiction in Gondis Court.

4. It appears from the record of the trial Court that when the suit was instituted on 29-4-1967 in the trial 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.

Plaintiff files an application (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 A, B and C have been sent and file D has been eliminated in the office of the District Judge, Bhandara on 4-6-1974 prior to receipt of will for the record and papers from this Court on 17-9-1975.

5. Since the order-sheets of the trial Court show an application was filed at Ex. 6 and order was passed on 3-5-1967 granting it, it should be taken for granted for the purpose of this second appeal that such an application was fields by the plaintiffs and was granted by the trial Court on -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 gramdal 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 that the plaintiffs had proved that they were the owners of the suit consignment. The plaintiff had also proved that 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 gramdal were not delivered and there was shortage of 9.05 quintals in other 14 bags due to misconduct and negligence on the part of the railway administration. The trial Court found that the plaintiff's allegations 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 found that it had jurisdiction to try the suit even as against the railways. Valid notices 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 alone. The defendant No. 2. the present respondent No. 3, was discharged. The appellants then preferred an appeal to the District Court, Bbandara. In the appeal only two points appear to have been pressed before the lower appellate Court:

(1) that the trial Court had no jurisdiction to try the suit, and

(2) 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.

Both these contentions were 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. The lower appellate Court therefore, dismissed the appeal with costs. Aggrieved by this decision the appellants. Union of India representing the railway administrations, have preferred this second appeal.

7. The only point that has been canvassed in this second appeal before me by Shri S. V. Naik on behalf of the appellants is that the trial Court had no jurisdiction to try the suit. It is contended 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 and therefore, so far as the appellants are concerned, the trial Court had no jurisdiction to try the suit. In this respect reliance is placed on the provision of Section 80 of the India Railways Act, 1890.

8. Section 80 of the Indian Railway Act, 1890 is in the following terms:

80. Suits for compensation--A suit for compensation for loss of the life of, or personal injury to, a passenger or for loss, destruction, damage, deterioration or good may be instituted.--

(a) if the passenger was, or the animals or goods were booked from one station to another on the railway of the same railway administration, against that railway administration.

(b) If the passenger was, or the animals or goods were, booked through over the railway of two or more railway administrations, against the railway administration from which the passenger obtained his pass or purchased his ticket or to which the animals or goods were delivered for carriage as the case may be, or against the railway administration on whose railway the destination station lies, or the loss, injury destruction, damage or deterioration occurred ; and in 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 or the goods were delivered for carriage, as the case may be or over the place in which the destination station lies, or the loss, injury, destruction, damage or deterioration occurred.

9. Shri Naik for the appellants contends that in this litigation the trial Court was not the Court having jurisdiction over the place where the goods were consigned i.e. at Katabhanji nor over the place to which the goods were to be delivered i.e. Dhulia, nor is there any allegation in the plaint anywhere that any of loss, damage or deterioration in the goods took place within the jurisdiction of the trial Court at Gondia. Therefore, it is contended by Shri Naik that since the plaintiffs are placing the responsibility for the loss or damage caused to the plaintiffs on the appellants as carriers of goods, the suit as against the appellants had necessarily to be instituted either in the Court having jurisdiction at Katabhanji where the goods were consigned or in the Court at Dhulia or the plaintiffs could institute the suit in any other Court having jurisdiction over the place during the transit of the goods at which the plaintiffs could allege that the loss or damage or deterioration to the goods consigned to the appellants as carriers in fact took place. 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 has placed reliance on the observations of E.S. Venkataramaiah, J. in Union of India v. C. R. Prabhanna & Sons : AIR1977Kant132 .

10. On the other hand it is contended by Shri Abidali that since a unity of cause of action as between the appellants and the respondent 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 as between the different defendants and, therefore, the suit 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 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 arid had received the price of the goods consigned from the plaintiffs at that place. Therefore, since part of the cause of action which was a single unitary cause of action on allegations of fraud and conspiracy between different defendants, took place at Gondia, the trial Court at Condia 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 of the Court to institute the suit in the Gondia Court under the provisions of Section 20(b) of the Civil P.C, so far as the appellants are concerned. Considering these rival contentions, it would seem to me that the provisions of O.I.R. 3 of the Civil P.C. may help the plaintiff in respect of a proper joinder of different defendants in the suit, but would he completely irrelevant on the point of jurisdiction of the Court to try the suit. Order 1 Rule 3 of the Civil P. C is as follows:

All person may be joined in one suit as defendants where.

(a) any rift to relief in respect of or arising out of, the same act or transaction or series of acts, or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative and.

(b) if separate suits were brought against suco persona, any common question of law or fact would arish.

11. It is true allegations of conspiracy 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 joirHter in oBe 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 mere existence ef a unitary cause ef action as against the Appellate railways and respondent No. 3 jointly would not with the help of provisions of O. I. Rule 3 of the Civil P. C. justify 8 joinder of all the defendant in a 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 provisions of Section 20(c) of the Civil P.C. In a proper ease the Court granting permission Under Section 20(b) of the Civil P.C. could also help the plaintffife, but the main difficulty which presents itself . is the present case is the circumstance that it would seem to me that the provisions of Section 80 of the Indian Railways Act, would serve to override the provisions of Section 20 of the Civil P. C. on the principle of special provision overriding the general provision. The provisions of Section 80 of the Indian Railways Act, specify under its Sub-clause s for institution of suits as against the railway administration in respect ef all damages or losses arising from their liability as carriers of goods' Section 80 of 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 f goods consigned to them for carriage, may be there are overriding allegation of fraud and conspiracy also. The liability of the appellants springs under the contract if 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 carriers and, therefore, it would seem that the special provisions of Section 80 of the Indian Railways Act, 1890 would override the general provision of Section 20 of the Civil P.C. Then the suit had to be instituted as against the appellant railway administration under the provisions of Section 80 of the Railways Act, 1890 at either the place where the goods were delivered for carriage to the railways 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 fact 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 80 of the Railways Act, 1890 override the provisions of Section 20 of the Civil P.C. and the 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 Karnataka High Court in Union of India v. C. R. Prabhanna & Sons (supra) where it has been observed in paras 5 and 6 of the reported judgment:

5. Section 80 as it originally stood laid down that notwithstanding anything in any agreement purporting to limit any liability of railway administration, a suit for compensation for loss of goods could be filed either against the railway administration from which the goods were booked or against the railway administration on whose railway the loss, injury, destruction or deterioration of the goods occurred. There was no reference to the territorial jurisdiction of the courts in which such suits for compensation Under Section 80 could be instituted By Act 39 of 1961, Section 80 was substituted by the new Section extracted above. While doing so, the Parliament specifically mentioned in that Section the Courts before whom such suits could be filed. I am of the view that the Parliament when it enacted the new Section 80 intended to specify the Courts before whom alone suits Under Section 80 of the Railways Act could be filed. It should be remembered that Section 20 of the Civil P.C. was in existence even at the time when Section 80 was substituted in the year 1961. If the Parliament intended that Section 20 of the Civil P.C. should continue to be applicable, then there was no need for specifying in Section 80 the Court which could entertain the suits referred to therein as they would also fall within the category of courts specified in Section 20 of the Civil P.C. While interpreting statutory provisions we should bear in mind that no legislature would ordinarily indulge in superfluity. If we accept the argument which appealed to the High Court of Assam and Nagaland we have got to attribute to the Parliament the error of enacting a provision which would amount to surplusage.

6. Section 80 of the Railways Act enacts a complete Code regarding the courts before whom suits referred to therein can be filed. Special provisions enacted in Section 80 exclude the operation of the general provisions of Section 20 of the Civil P.C. It is well known that special provisions exclude the operation of general provisions (See South India Corporation (P) Ltd. v. Secy., Board of Revenue, Trivandrum : [1964]4SCR280 and Delhi Administration v. Ham Singh : [1962]2SCR694 . The object of specifying the courts having jurisdiction to try suits Under Section 80 is also clear. The Parliament apparently did not wish that any court in India merely because the Railway Receipt was negotiated within its jurisdiction should have jurisdiction to try a suit falling Under Section 80 against the Railway as it would cause a good deal of inconvenience to the railway administration to defend suits at courts far removed from the book- ing station, place of destination and the place where the loss of goods had occurred, when they were not concerned with the negotiation of the railway receipt. It cannot also be said that the Union of India either resides or carries on business or works for gain in every part of India wherever a railway station is situated. The suits against the Union of India Under Section 80 have to be filed only in the courts specified therein. I am, therefore, of the view that Section 20 of the C.P.C. has to be read as not being applicable to suits falling Under Section 80 of Railways Act after Act 39 of 1961 came into force. Since it is not disputed that the trial court is not one of the courts referred to in Section 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.

12. It is contended by Shri Abidali for the respondents Nos. 1 and 2 that the finding of the trial Court 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 was in fact paid at Gondia through one Rameshwar, was rot 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. But that would hardly make any difference because that would make the institution of the suit in 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 Railways Act, overrides Section 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 hardly make any difference. The main point to be considered 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.

13. 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 re-turn the plaint to the plaintiffs (respondents Nos. 1 and 7) for presentation to proper Court. There shall be no order as to costs in any of the three courts.


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