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Firm Deokishan Srigopal Vs. Union of India (Uoi) (Formerly Dominion of India) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 253 of 1951
Judge
Reported inAIR1966All16
ActsCode of Civil Procedure (CPC) , 1908 - Sections 80; Railway Act, 1890 - Sections 77 and 80
AppellantFirm Deokishan Srigopal
RespondentUnion of India (Uoi) (Formerly Dominion of India) and ors.
Appellant AdvocateRajeshwari Prasad, Adv.
Respondent AdvocateJ. Swarup, Adv.
DispositionAppeal allowed
Excerpt:
.....only to deal with the remaining nine items. 1,088-3-0. the court below bad rightly held that the suit in respect of item no. i, therefore, agree with the trial court that the claim in respect of this particular item bad become barred by limitation. relating to this claim was bad in law inasmuch as its r/r number was quoted in the notice under section 80, c. as well as in the plaint to be 45922, while its correct number was 45972. therefore, relying on a single decision of this court in dominion of india v. , 2 (b), 5, 6, 7, 8, 9 and 10 were dismissed by the court below on the ground that the plaintiff had failed to prove that the loss or shortage had occurred on the e. to which alone notice under section 77 of the railways act had been sent and inasmuch as the plaintiff had failed to..........shortage in other consignments were due to misconduct and negligence on the part of the defendant railway administration. the claim under section 77 of the railways act in respect of the above hems was made by the plaintiff to the chief commercial manager, east indian railway, hereinafter called e. j. r. but similar claims were not lodged with the authorities concerned of the g. i. p. r. or r. b. and c. i. r. later on the plaintiff gave notices under section 80 of the code of civil procedure on 23rd november 1948 to all the general managers of the three railway administrations namely, e. i. r., g. i. p. r. and b. b. and c. 1. r. calling upon them to mala; good the loss suffered by the plaintiff together with interest at 6 per cent per annum. however, the railway administrations did not.....
Judgment:

Gyanendra Kumar, J.

1. This is a plaintiff's appeal against the decree of the First Additional Civil Judge, Banaras, whereby out of a claim of Rs. 6,436-14-0 only a sum of Rs. 2,939 was decreed and the rest was dismissed. The plaintiff has, therefore, filed the instant appeal about the balance of its claim.

2. There is no controversy about the facts in this case. The plaintiff-firm Deokishan Srigopal carried on whole-sale cloth business at Banaras and was also appointed as importer of cloth for the district of Banaras and in that capacity used to import cloth from places outside the Uttar Pradesh. The dispute relates to ten items of consignment which were booked from four places situate in the Bombay Presidency, which were served by the Great Indian Peninsula Railway and Bombay Baroda and Central India Railway, hereinafter called the G.I.P.R. and B. B. and C. I. R., respectively. Admittedly the destination station was Banaras situate on the East Indian Railway. There is also no dispute about non-delivery or short delivery of the ten consignments which are as follows:--

1. Short delivery valued at Rs. 563-7-0.

2. (a) Non-delivery valued at Rs. 1,088-3-0.

2. (b) Short delivery valued at Rs. 82-8-9.

3. Short delivery valued at Rs. 2,648-2-0.

4. Short delivery valued at Rs. 29044-0.

5. Short delivery valued at Rs. 57-18-6.

6. Short delivery valued at Rs. 82-14-9.

7. Short delivery valued at Rs. 38-11-3.

8. Short delivery valued at Rs. 794-7-0.

9. Short delivery valued at Rs. 128-2-0.

10. Short delivery- valued at Rs. 377-5-8.

2a. The case of the plaintiff was that the non-delivery in one consignment and shortage in other consignments were due to misconduct and negligence on the part of the defendant Railway Administration. The claim under Section 77 of the Railways Act in respect of the above Hems was made by the plaintiff to the Chief Commercial Manager, East Indian Railway, hereinafter called E. J. R. But similar claims were not lodged with the authorities concerned of the G. I. P. R. or R. B. and C. I. R. Later on the plaintiff gave notices under Section 80 of the Code of Civil Procedure on 23rd November 1948 to all the General Managers of the three Railway Administrations namely, E. I. R., G. I. P. R. and B. B. and C. 1. R. calling upon them to mala; good the loss suffered by the plaintiff together with interest at 6 per cent per annum. However, the Railway Administrations did not pay any heed to the claim of the plaintiff; :il was, therefore, obliged to file Suit No. 21 of 1949 for the recovery of Rs. 6,436 against the Dominion of India us well as the General Managers, E. I. R., G. I. P. R. and B. B. and C. I. R, In the aforesaid suit the plaintiff did not claim damages in respect of item No. 1, containing shortage of Rs. 563-7-0. The Court below was, therefore, no longer concerned with the claim relating to item No. 1 and bad only to deal with the remaining nine items.

3. The suit was resisted by the Dominion of India on its own behalf and on behalf of G. I. P. R. and B. B. and C. I. R., who had been arrayed as defendants Nos. 3 and 4, respectively. Inter alia, the defence pleas were that valid notices under Section 77 of the Railways Act and under Section 80 of the Code of Civil Procedure were not served; the defendants were protected under Section 80 of the Railways Act; and that the suit was barred by time. There were certain other pleas also with which we are no longer concerned.

4. The Court below decreed the plaintiffs suit for items Nos. 3 and 4 only awarding Rs. 2,939 by way of damages for the loss sustained by the plaintiff on account of short delivery of the two consignments in question. The defendants did not file any appeal or cross-objection in respect of this part of the decree, with the result that it has become final between the parties.

5. Regarding the plea of limitation, the trial Court found that the suit was not barred by time except in respect of item No. 2 (a), which was a case of non-delivery of goods valued at Rs. 1,088-3-0. The Court below bad rightly held that the suit in respect of item No. 2 (a) should have been instituted by 38-1-1949 while it was instituted oil 19-2-1949, beyond the prescribed period of limitation. The finding of the Court below on this point has not been seriously challenged by the appellant. I, therefore, agree with the trial Court that the claim in respect of this particular item bad become barred by limitation.

6. As regards item No. 6 the finding of the Court below was that the notice tinder Section 80, C. P. C. relating to this claim was bad in law inasmuch as its R/R number was quoted in the notice under Section 80, C. P. C. as well as in the plaint to be 45922, while its correct number was 45972. Therefore, relying on a single decision of this Court in Dominion of India v. Roop Chand, 1950 All LJ 595, the Court below held that the mistake in the number of the R/R amounted to not stating the cause of action and consequently amounted to the non-compliance of Section 80, C. P. C. In the result, the claim relating to item No. 6 was dismissed as barred by Section 80, C. P. C.

7. The learned counsel for the appellant has drawn my attention, to a subsequent Division Bench ruling of this Court in Harish Chand v. The Union of India : AIR1962All307 . wherein it was observed by Srivastava, J.

' ..... The only defect in the notice was that the number of the railway receipt had been given incorrectly... .. .It was not suggested on behalf of the railway authorities that on account of incorrect number of the railway receipt they were not able to trace the consignment. .....

In these circumstances the object of the notice was, in our opinion, fulfilled and the defendant could not take refuge behind the highly technical objection that in the notice under Section 80, the number of the railway receipt had been mentioned incorrectly. The notice had to be interpreted keeping in view the other facts alleged in it, viz., number of packages in the consignment, nature of the goods booked, the date of looking, the station of booking and the station of delivery. No importance could in the circumstances be attached to the incorrectness in the member of the railway receipt and on account of that incorrectness the notice could not be held to have become, invalid altogether. ... .

It cannot, therefore, be said in the present case that the cause of action which was alleged in the notice was different front the cause of action which was set up in the plaint. In the present case there could be no doubt about the identity of the cause of action mentioned in the notice and the plaint. Simply because of the incorrectness of the number of the railway receipt, the cause of action could not be hold to be different,'

8. I am bound by the subsequent Division Bench decision of this Court referred to above. Therefore, disagreeing with the finding of the Court below, I come to the conclusion that the notice served on the defendants under Section 80, C. P. C. in respect of item No. 6 was not invalid. The Court below should not have dismissed the claim of the plaintiff in respect of item No. 6.

9. All the other items of claim, viz., 2 (b), 5, 6, 7, 8, 9 and 10 were dismissed by the Court below on the ground that the plaintiff had failed to prove that the loss or shortage had occurred on the E. I. R. to which alone notice under Section 77 of the Railways Act had been sent and inasmuch as the plaintiff had failed to serve notice under Section 77 of the Railways Act on the remaining two Railway Administrations, namely G. I. P. R. and B. B, and C. I. R., the claim was barred under Section 80 of the Railways Act, the relevant portion thereof runs as Follows:

'80. A suit for compensation for loss...... or non-delivery of....... goods may be instituted ...

(a) .... .. ......

(b) if the...... goods were booked through over the railway of two or more railway administrations, against the railway administration....to which the. . ..... goods were delivered for carriage. ... .or against the railway administration on whose railway. .... .the loss. or damage. . ..... .occurred.'

The perusal of Section 80 of the Railways Act, therefore, shows that if the plaintiff is able to prove that the loss in question had occurred on a particular Railway Administration, he could, after serving notices under Section 77 of the Railways Act and Section 80 of the Code of Civil Procedure, bring a suit for compensation against that Railway Administration. But if the plaintiff was not in a position to prove that the loss of the goods had occurred on any particular Railway Administration, he could bring a suit only against the contracting railway to which the goods were delivered for carriage.

10. In respect of the remaining seven items in question the plaintiff was not in a position to prove that the loss had occurred on any particular of the three Railway Administrations. He could, therefore, not sue any of those Railway Administrations. However, there is another aspect of the matter. The learned counsel for the appellant maintains that inasmuch as all the defendant-railway-administrations in question were owned at the relevant time, by the Dominion of India, the service of notice under Section 77 of the Railways Act on any of them would amount to the service of notice on the other Railway Administrations as well. For authority, the learned counsel relies upon the observations of a Division Bench of this Court in Dominion of India v. Madan Engineering Tool Products, First Appeal No. 161 of 1950, dated 21-12-1962 (All.). This case was subsequently relied upon by a single Judge of this Court in Jai Narain Kalloo Ram v. Union of India : AIR1965All122 . It was pointed out by the Division Bench that the definition of the expression 'Railway Administration' under Section 3 (6) of the Railways Act included the Government and, therefore, in the case of railways, which were owned by the Government, they could sufficiently he represented by the Union or Dominion of India alone.

In the above Division Bench ease of 1962, the facts were very similar to those in the instant case. In that suit the goods were transhipped by the East Punjab Railway and the East Indian Railway. The main question for decision was that when a notice under Section 77 of the Railways Act had been given to the East Indian Railway, which had delivered the goods, whether a similar notice under Section 77 was at all necessary to he given to the East Punjab Railway. The Bench repelled the contention of the Dominion of India that each Railway Administration constituted a separate unit and, therefore, a separate notice under Section 77 of the Railways Act should have been preferred to each one of them. Relying upon the definition of the expression 'Railway Administration' used in Section 3 (6) of the Act, S.D. Singh, J. delivering the judgment of the Bench observed:

'If, therefore, 'Railway Administration' includes the Government, and if notice of the claim under Section 77 of the Railways Act is served on the Government, could it be said that it has not been given to the 'Railway Administration ?' .... The Central Government, whatever may be the extent of the railway system owned by it, would be one legal entity. If it owns a railway system large in the extent and covering vast areas, and if in the interest of facility of administration, the railway system is divided or grouped into different units, which units are put in the charge of managers or general managers, it would not lead to the inference that each administrative unit so formed would constitute a separate 'Railway Administration' or that the Central Government, as owners of the different units of the railway system, would have different legal status in the eye of law in respect of each such unit.......... where a railway system is owned by the Government, the contract at the time of booking the goods is not, to our mind, with the Railway Administration as such, but with the Government, in the case of State-owned railways and with the railway company, where the railway system is owned by it and if the contract is with the Government, it matters little whether the destination station is on the same or a different administrative zonal unit..........In our opinion, therefore, it is not necessary for a claimant to give notice of his claim under Section 77 of the Railways Act to every administrative zonal unit of the State-owned railway in case of through booking, and if one notice is given to the 'Railway Administration', which includes all the zonal units concerned, over which the goods travelled, Section 77 of the Railways Act will have been duly complied with.'

11. In view of the above pronouncement of a Division Bench of this Court, I must hold that in the instant case, the notice of the plaintiff's claim under Section 77 of the Railways Act given to the E. I. Railway would also amount to giving notice to the other railways namely, G. I. P. R. and B. B. and C. I. R., when all the three railways were owned by the Dominion of India, That being the legal position, the findings of the Court below with respect to items Nos. 2 (b), 5, 6, 7, 8, 9 and 10 must be set aside and the suit of the plaintiff with respect to these items must: also be decreed.

12. In the result, I allow the appeal, modify the decree of the Court below in part and further decree the plaintiff's suit in respect of items Nos. 2 (b), 5, 6, 7, 8, 9 and 10 with proportionate costs against the defendants, who would bear their own costs, together withpendente lite and future interest at the rateof 6 per cent per annum simple. The defendant-respondents shall deposit the decretal amountinto the trial Court within a period of threemonths, failing which the plaintiff shall beentitled to execute the decree.


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