1. This is a plaintiffs' appeal against a judgment and decree of the learned Senior Subordinate Judge of Simla dismissing the plaintiffs' suit for recovery of Rs. 6000/- as compensation for non-delivery of goods.
2. By a railway receipt No. 157266 dated the6th August 1947, 200 bags of wheat were bookedat railway risk from Pitharo on Jodhpur Railway to Simla addressed to Bhagat Food Depotwho sold the goods to the plaintiffs and therebytransferred all their rights to them. On the10th July 1948, a notice under Section 80, CivilProcedure Code, was sent to the Chief Administrative Officer of Eastern Punjab Railwayby Mr. Manmohan Nath on behalf of the plaintiffs. The relevant portion of this is as follows:'Under instructions from my clients Messrs.Salig Ram Tulsi Ram, merchants, GanjBazar, Simla, I have to give the followingnotice under Section 80, C. P. C. * * '
On the 20th July 1948, a suit was brought by the plaintiffs for recovery of Rs. 6,000/- on the basis of non-delivery of goods. The description of the plaintiffs was as follows: 'Salig Ram, Manager and Karta of jointHindu family firm of Salig Ram-Tulsi Ram,merchants, Ganj Bazar, Simla.' In the body of the plaint the word 'plaintiffs' has been used in para. Nos. 1, 2 and 3 and in the prayer clause. At the end it is signed in Urdu 'Salig Ram, Plaintiffs.'
3. The defence was that no notice of claim had been given under Section 77, Railways Act, that the notice under Section 80, Civil P. C., was invalid 'inasmuch as no relief has been claimed in it against the defendant and as it does not conform with the provisions of Section 80, C.P.C.', that there was no privity of contract between the plaintiffs and defendant i.e., the Dominion of India and that no decree could be passed against the defendant under Section 80, Railways Act, unless the plaintiffs prove that the suit consignment has been lost over the E. P. Railway or N. W. Railway systems. In para. Nos. 5 and.6 of preliminary objections the defendant stated:
(5) The plaintiffs have no locus stands to sue.
(6) The plaintiffs cannot institute the suitunless their firm is registered. In para. No. 3 on merits the word used by the defendants is 'plaintiffs'. The other pleas were only denials of liability. In their replication the plaintiffs controverted the written statement and they submitted that the loss had occurred on the E. P. Rail-way and therefore it was liable and that in their correspondence the E. P. Railway never said that the loss had occurred on another Railway. In regard to registration their reply was: 'The plaintiffs is a joint Hindu family firm and does not require registration.'
The rest of the replication is not relevant.
4. The learned Judge framed eight issues and found ail the issues in favour of the plaintiffs except in regard to notice under Section 80, C. P. C., which he held to be invalid and thus dismissed the suit.
5. Counsel for the plaintiffs-appellants has confined his arguments, as indeed he had to, to the question of validity of the notice. He submits that there is really no variation between the name, description and place of residence of the plaintiffs given in the notice and those given in the plaint. The notice was on behalf of firm Salig Ram-Tulsi Ram and the suit was brought by the firm. Only Salig Ram described himself as Karta of firm Salig Ram-Tulsi Ram which was a joint Hindu family firm. The body of the plaint makes it clear that it was not one person who was suing but it was the firm and that the suit was on behalf of plaintiffs and not a plaintiff. This is further made clear by the fact that even the defendants took the firm to be the plaintiffs and for that reason they raised a plea in paragraph No. 6 of their preliminary objections that the firm was not registered. If it had been an individual, so it is submitted, such an objection could not be taken and with this I am in agreement.
The other description of the plaintiffs is the same as was given in the notice. In support of his argument counsel has relied on a Bench decision of the Patna High Court in -- 'Secy. of State v. Sagarmal Marwari', AIR 1941 Pat 517 where the plaintiffs gave a notice to the Secretary of State in their firm name and in the amended plaint they substituted the names of the owners of the firm in place of the original firm name which was a joint Hindu family firm. In the amended plaint, the plaintiffs 'were Ganpat Ram described as the son of Dev Karan Das and Sat Narain as the son of Ganpat Ram, the name of the firm being Dev Karan Das-Ganpat Ram, and it was held that the notice under Section 80 in the name of the firm must be deemed to be on behalf of the substituted plaintiffs.
In the -- 'Governor-General in Council v. Amilal, AIR 1947 Pat 81 the notice was sent by one member of a firm in the name of the firm and the suit was brought in the name of the individual members of the firm. Reuben J. as he then was, followed the previous judgment of the Patna High Court in -- 'Sagarmal's case' and refused to entertain the objections of the defendant in regard to variance in the name of the plaintiffs as this objection had not been specifically taken.
6. Counsel submits that in this case also no specific objection has been taken against the validity of the notice. The specific objection was on quite a different point which I have already mentioned and it was vaguely stated that the notice was not in accordance with Section 80, Civil P. C. The learned trial Judge has relied on a judgment of the Madras High Court in -- 'Ramachandra Naidu v. Kandaswami Mudaliar', AIR 1949 Mad 416. There a plaintiff, whose father and brothers were alive, brought a suit against a village Munsif for recovery of damages for damage to sugarcane crop and damages for loss of refutation and mental suffering. The suit was filed in 1946, the cause of action having arisen in April or May 1945. In July 1947, the plaintiff put In an amended petition praying that he be allowedto describe himself as the manager of the joint Hindu family. This the District Munsif did not allow on the ground that the amendment would enable a manager of a joint Hindu family to bring a suit at a time when the suit had become barred by time. On revision, the High Court held that Section 80, Civil P. C., had to be strictly construed and therefore notice which was issued in his own name cannot be said to be the same as a notice issued by that person as the manager of a joint Hindu family and reliance was placed on a judgment of their Lordships of the Privy Council in -- 'Bhag-chand Dagdusa v. Secy. of State', 51 Bom 725 (PC) where it was laid down that a notice under Section 80 must be in strict conformity with the provisions of Section 80 without any material alteration of the judicial capacity of the person suing, or the relief claimed, or the other incidental circumstances. In my opinion, this judgment can have no application to the facts of the present case.
The notice in this case now before me had been given on behalf of the firm Salig Ram-Tulsi Ram. The suit was brought, as I have said before, by this firm through its manager who was described as such. The body of the plaint and the reply of the defendants show that the suit in essence was by the firm and not on behalf of one particular person. I am, therefore, of the opinion that the learned Senior Subordinate Judge was in error on this point and hold that there is no material variance in the description of the person who has brought the suit and the person who sent the notice under Section 80, C. P. C.
7. Mr. Nand Lal Salooja for the Railway then urged that the suit is not properly framed as no suit could be brought against the E. P. Railway because the loss had occurred on the Jodhpur Railway and he relies on Section 80, Railways Act, 1890. In the first place, the suit has been brought against the Dominion of India, now the Union of India, which is the owner of both these Railways and secondly, in their replication the plaintiffs had alleged that the loss had not occurred on the Jodhpur Railway but had occurred on the E. P. Railway and there was no serious attack on this part of the plaintiffs' case in the trial Court. No issue was framed and there is no finding on this point. But there is a further hurdle which Mr. Salooja has to cross before he can succeed on this point. Section 80 provides as follows: 'Notwithstanding anything in any agreement purporting to limit the liability of a railway administration with respect to traffic while on the railway of another administration, a suit for compensation * * for loss, destruction or deterioration of * * goods * * may be brought either against the railway administration from which the passenger obtained his pass or purchased his ticket. or to which the animals or goods were delivered by the consignor thereof, as the case may be, or against the railway administration on whose railway the loss, injury, destruction or deterioration occurred.'
It is significant to note that in the whole of this section there is no mention of non-delivery of goods and that is the basis of the plaintiffs' claim. Even if it is open to the Union of India to take this plea when they are the owners of the whole of the railway administration in India, this section is inapplicable to the facts of this case because there is in this section nomention of the words 'non-delivery of goods.' It has been held by practically every High Court in India that Section 77, Railways Act, where similar words exist does not cover the case of non-delivery of goods and the same has been held by a Full Bench of this Court in - 'Babu-lal v. Dominion of India', Civil Revn. No. 304 of 1949 (Punj) which was decided on the 30th May 1952. I am, therefore, of the opinion that this contention is without any force and must be overruled.
8. As a result of what I have said above, this appeal succeeds and I would, therefore, allow it with costs, throughout.
9. I agree.