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Makhan Lal and ors. Vs. Bombay, Baroda and Central India Railway Company - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1914All524; 25Ind.Cas.77
AppellantMakhan Lal and ors.
RespondentBombay, Baroda and Central India Railway Company
Excerpt:
.....section 80 - claim, for compensation and damages--consignment of goods at railway for delivery--loss on other railway--cause of action--omission of essential facts in plaint--replication filed--civil procedure code (act v of 1908), order vii, rules 5, 11. - - the plaint is, no doubt, badly drafted. the written statement filed by that company began with the assertion that the plaint discloses no cause of action against the defendant and that the suit without impleading the original booking line is bad in law and not maintainable the reference is in the first place to a fact which does not appear in the plaint itself, viz. holding this to be impossible he declined to take any other action on this replication and on the following day passed the order complained of rejecting the plaint...........even so essential a fact as that the agra fort railway station is under the control of the railway administration impleaded by him as defendant, i.e., the bombay, baroda and central india railway company. at the same time, in view of the statement made in paragraph 3 of the plaint, i am not prepared to say that the plaint does not contain an allegation showing that the defendant is liable to be called upon to answer the plaintiff's demand within the meaning of order vii, rule 5, of the code of civil procedure reading the plaint as a whole it seems to me that it does allege the existence of a cause of action against the defendant company based on the assertion that they were bound to deliver forty-one bags of sugar to plaintiff and actually delivered only thirty-two. at any rate.....
Judgment:

Piggott, J.

1. This is an application in revision against an order of the Judge of the Small Cause Court at Agra rejecting a certain plaint under the provisions of Order VII, Rule 11, of the Code of Civil Procedure on the ground that it does not disclose any cause of action. The plaintiff is a merchant residing at Agra. The case set forth in the plaint is that forty-one bags of sugar were consigned to the plaintiff's address from a Railway Station named Bhata Pokhar to the Agra Fort Railway Station; and that when delivery was made nine bags of sugar were missing and there was a total shortage of twenty-seven maunds five seers of sugar. In respect of that shortage the plaintiff claims compensation and damages. The plaint is, no doubt, badly drafted. It omits to state in plain language even so essential a fact as that the Agra Fort Railway Station is under the control of the railway administration impleaded by him as defendant, i.e., the Bombay, Baroda and Central India Railway Company. At the same time, in view of the statement made in paragraph 3 of the plaint, I am not prepared to say that the plaint does not contain an allegation showing that the defendant is liable to be called upon to answer the plaintiff's demand within the meaning of Order VII, Rule 5, of the Code of Civil Procedure Reading the plaint as a whole it seems to me that it does allege the existence of a cause of action against the defendant Company based on the assertion that they were bound to deliver forty-one bags of sugar to plaintiff and actually delivered only thirty-two. At any rate the plaint as, drafted was admitted by the Court below and summons was issued to the defendant Company. The written statement filed by that Company began with the assertion that the plaint discloses no cause of action against the defendant and that the suit without impleading the original booking line is bad in law and not maintainable The reference is in the first place to a fact which does not appear in the plaint itself, viz., that Bhata Pokbar Railway Station is situated within the railway administration, not of the Bombay, Baroda and Central India Railway Company, but of the Bengal and North-West Railway. Now under the provisions of Section 80 of the Railways Act (IX of 1890) the plaintiff had the option of impleading. either the railway administration to which the goods were delivered by the consignor or the railway administration on whose railway the loss, injury, or destruction of a portion of the consignment had occurred. What the defendant really meant by this written statement was that, in the absence of an explicit averment in the plaint that the loss, injury, or destruction of a portion of the consignment of sugar had occurred while that consignment was in transit on the Bombay, Baroda and Central India Railway, the plaint should not be regarded as disclosing a cause of action against the defendant. To this written statement the plaintiff put in a replication. It would seem that his legal advisers felt themselves very much at a loss as to the proper line to lake under the circumstances. They put forward a suggestion, which seems to me quite inadmissible, that the Bengal and North-West Railway administration might at the stage be added as defendants under the orders of the Court. They did also make certain further allegations which seem to me of some importance. They said that, when the defendant Company had delivered the consignment short by nine bags to the plaintiff, the latter entered into correspondence with them and was in a position to produce letters tending to show that the defendant Company had accepted liability for the loss, and asked the Court below in the first place to hold that the defendant Company was estopped in consequence of this correspondence from denying that the loss, injury, or destruction of portion of the consignment had taken place on their line. In the alternative they suggested that the conduct of the defendant Company in connection with the case justified the inference that the said loss, injury, or destruction had occurred to the consignment while in transit on their line. I think that this implies at any rate a suggestion that the plaintiff might be allowed to prove this fact. The replication closed with a general prayer that the Court should pass such order as it might think necessary in the interests of justice, and in any case should grant the plaintiff an adjournment of the hearing. In dealing with this replication the learned Judge of the Court below seems to have concentrated his mind only on the suggestion that the Bengal and North-West Railway administration might be added as defendant. Holding this to be impossible he declined to take any other action on this replication and on the following day passed the order complained of rejecting the plaint.' I think the plaintiff was hardly treated and a good case is made out for the interference of this Court in revision. Badly drafted as the plaint was, I am not prepared to say that it discloses no cause of action. Looking at the pleadings at the stage which they had reached after the defendant's written statement and the plaintiff's replication had been put in. I think it becomes clear that the plaintiff should have been allowed an opportunity of proving that the loss, injury, or destruction of ' a portion of the consignment had taken place on the railway under the administration of the defendant Company, whether he could prove this by direct evidence of the fact, or by means of admissions or conduct on the part of the defendant Company and whether or not the admissions put forward by him were such as to have the effect of estoppel. The plaintiff has no doubt, lost the readiest remedy available to him by not taking action against the railway administration to which the goods were delivered by the consignor, and it may be very difficult for him to satisfy the Court of the facts necessary to render the Bombay, Baroda and Central India Railway Company, liable for this claim. On the pleadings as they stood, however, at the time when this plaint was rejected, 1 think that the necessary issue had fairly been raised between the parties and that it ought to have been tried out. I set aside the order of the Court below and return the record to that Court directing it to restore this case on to its file of pending suits and to dispose of it according to law. Costs of this application will be costs in the suit.


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