P.C. Jain, J.
1. This is a plaintiff's appeal from the judgment and decree of the learned sub-Judge, 1st Class, Ludhiana, dated 22nd of May, 1963, dismissing the suit for recovery of Rs. 6042.33 Paise, by way of the damages and compensation on account of the short delivery of gram despatched from Ludhiana to Jorhat.
2. The plaintiff-firm M/s. Hardial Chaman Lal, Commission Agents and Food Grain Dealers, Mandi Fenton Ganj, Jullundur City, brought the present suit against the Indian Railways for the recovery of Rs. 6042.33 Paise as the price of the goods (gram) which were consigned at Ludhiana under R.R. No. 179233 on 20th September, 1961, for delivery at Jorhat out of which only 130 bags were delivered at the destination whereby resulting in the short delivery of 121 bags of gram. The suit relates to the price of these 121 bags of gram.
3. It was alleged by the plaintiff that though the goods were consigned by defendant No. 5 (M/s. Hira Lal Narain Dass) in favour of self, the plaintiff-firm was the owner of the goods because the same had been purchased by it from defendant No. 5. It was further said that defendant No. 5 endorsed the railway receipt in favour of the plaintiff-firm who further said that defendant No. 5 endorsed the railway receipt in favour of the plaintiff-firm who further endorsed the same in favour of M/s. Padma Ram Om Prakash of Jorhat. According to the plaintiff, M/s. Padma Ram Om Prakash were its own agents. The railway receipt was endorsed in favour of M/s. Padma Ram Om Prakash in order to enable them to take delivery on behalf of the plaintiff-firm and the despatched goods always remained the property of the plaintiff-firm. It was alleged that although the plaintiff-firm was the owner of the goods as aforesaid, still M/s. Padma Ram Om Prakash issued an authority letter in favour of the plaintiff-firm enabling them to claim the price of the goods which were not delivered. That letter was duly verified and signed by the Stateion Master, Jorhat. Proper service of notices under Section 77 (Amended Section 78-B) of the Indian Railways Act (hereinafter referred to as the Act), and under Section 80 of the code of Civil Procedure, was also alleged.
4. The Union of India had been sued through the General Managers of Northern Railways, New Delhi, Eastern Railways, Calcutta, North Eastern Railway, Gorakhpur, and North Eastern Railway, Pandu (Assam). Defendant No. 1 was served on 22nd January, 1963, and was represented by law Inspector of the Railways. A copy of the plaint was then given to him and defendant No. 1 was required to furnish the written statement on 13th February, 1963. No written statement was filed and further opportunity was given for furnishing the written statement on 11th March, 1963. As 11th March, 1963, was declared a holiday, the matter came up for hearing on 12th March, 1963, but on this date also no written statement was filed by defendant No. 1. At the request of the learned Counsel for the Railways, a final opportunity was provided to defendant No. 1 to file the written statement on 3rd April, 1963, but on this date also no written statement was made. In these circumstances, the learned Sub-Judge rejected the request of defendant No.1 was put in but the same was returned.
5. The plaintiff examined Hardial, suing partner of the plaintiff-firm as its only witness on 1st May, 1963, who narrated the allegations as made in the plaint.
6. The learned Sub-Judge, after hearing the learned Counsel for the parties, held that the plaintiff-firm was a registered firm under the Partnership Act. On the question of notice under Section 77 of the Railways Act, the learned Sub-Judge came to the conclusion that no such notice was given within the prescribed period of six months and as such the suit must fail in this ground. It was also held by the learned Sub-Judge that the present action should have been brought by M/s. Padma Ram Om Prakash for damages for non-delivery of goods and the plaintiff-firm was not competent to sue.
7. Mr. J. N. Kaushal, learned Counsel appearing on behalf of the appellant, relied on the provisions of Order VIII Rule 5 of the Code of Civil Procedure and argued that defendant No. 1 having failed to put in a written statement, would be deemed to have admitted all the allegations in the plaint. Reference was made to paragraph 6 in the plaint which reads as under :-
'That notices under Section 77, Indian Railways Act, were duly issued to the defendants through legal advisor on 3-1-1962, claiming Rs. 6042.33 N. P. as damages for short delivery, advising the short delivery certificate as well as the above mentioned authority letter to the General Manager, N. F. Railway, Pandu, (defendant No. 4) along with the same, and that nothing having been done by the defendants, further notices were sent, in reminder, upon which particulars only of the R/R were called for by defendants Nos. 1 and 3 and nothing further'.
According to the learned Counsel it should be presumed that the allegations in paragraph 6 of the plaint referred to above were admitted by respondent N. 1 and there being a clear and definite assertion in this paragraph that notice under Section 77 was duly issued to the defendant on the 3rd of January, 1962, the suit was maintainable as the notice had been sent within the prescribed period as provided in Section 77 of the Act. In support of his contention, the learned Counsel placed reliance on two decisions of the Bombay High Court, in Shriram Surajmal v. Shriram Jhunjhunwalla, AIR 1936 Bom 285, and Vinayak Shreedhar Kulkarni v. Chintaman Vaman Kulkarni, AIR 1938 Bom 470.
8. Mr. H. S. Gujral, learned Counsel appearing on behalf of respondent No. 1, vehemently contested this contention of the learned Counsel for the appellant and submitted that Order VIII Rule 5 had no application to the facts of the present case as no written statement had been filed by the defendant. In support of his contention, reliance was placed on a Division Bench decision of the Lahore High Court in Narinder Singh v. C. M. King, AIR 1928 Lah 769, and also on the decisions of Patna and Hyderabad High Courts reported in Bhageran Rai v. Bhagwan Singh, AIR 1962 Pat 319, and Gopinath v. Sayed Pathru, AIR 1953 Hyd 166.
9. After considering the respective contentions of the learned Counsel for the parties. I am of the view that there is no force in the argument of the learned Counsel for the appellant. In my judgment, Order VIII Rule 5 of the Code of Civil Procedure, does not apply to this case at all. That rule says
'Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.'
I think it is clear from the wording of this rule that it is only intended to apply to a case where pleadings have been put in by the defendant, and this rule is not intended to apply to a case where the defendant has not put in a written statement. It is only if there is a written statement filed by a party that the question of denial specifically or by necessary implication, of an allegation would arise. The view I am taking is fully supported by the decision of the Lahore High Court in Narinder Singh's case, AIR 1928 Lah 769 and also by the cases of Bhageran Rai, AIR 1962 Pat 319 and Gopinath, AIR 1953 Hyd 166. I am unable to persuade myself to agree with the view of the learned Judges of the Bombay High Court in the two decisions in Shriram Surajmal's case, AIR 1936 Bom 285 and Vinayak Shreedhar Kulkarni's case, AIR 1938 Bom 470 and I dissent from that view.
10. Faced with this situation, the learned Counsel for the appellant submitted that there was no proper trial of the suit. The learned Sub-Judge should have allowed the defendant to file the written statement so that the plaintiff could know the case of the defendant and meet the same. The plaintiff was misled and did not lead evidence thinking the same to be unnecessary as no written statement had been filed by the defendant. In proof of the allegation made by the plaintiff in paragraph 6 of the plaint the plaintiff's learned Counsel has produced before us a copy of the notice which was sent to the defendant by the Counsel for the plaintiff under Section 77 of the act on 3rd January 1962. The learned Counsel submits that in the interest of justice and for the proper adjudication of the matter in dispute it would be desirable that the case be remanded for retrial, and the learned Sub-Judge be directed to permit the defendant to file its written statement. After that the parties be permitted to lead evidence and the matter be decided on merits.
11. The learned Counsel appearing on behalf of respondent No. 1 opposes this prayer and submits that no case for remand or receiving of additional evidence has been made out.
12. After considering the entire matter, we are of the view that there has been no proper trial of the suit. It appears that the plaintiff was misled and did not lead evidence considering the same to be unnecessary as no written statement had been filed by the defendant. In this particular case the learned Sub-Judge should have allowed another opportunity to the defendant to file the written statement. The copy of the notice produced before us also proves that the provisions of Section 77 of the Act were complied with by the plaintiff. Under these circumstances in the interest of justice, we feel that for proper adjudication of the matter in dispute, it is necessary to send back the case to the learned Sub-Judge, Ludhiana, for retrial.
13. Accordingly we allow this appeal, set aside the judgment and decree of the trial Court and remand the case for retrial. The learned Sub-Judge would allow another opportunity to the defendant to file its written statement and after that the parties would lead evidence in support of their claims. The costs would be costs in the cause. The parties are directed through their Counsel to appear before the learned Sub-Judge on 16-12-1968.
14. D.K. Mahajan, J.
15. Appeal allowed.