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The New India Assurance Co. Ltd. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 206 of 1978
Judge
Reported inAIR1981Delhi135; 20(1981)DLT68; 1981RLR207
ActsRailway Act, 1890 - Sections 80; Code of Civil Procedure (CPC), 1908 - Sections 20
AppellantThe New India Assurance Co. Ltd.
RespondentUnion of India and ors.
Advocates: D.V. Patel,; B.R. Sabharwal,; K. Prasaran,;
Cases ReferredMaru Ram v. Union of India. The
Excerpt:
.....a suit at madras even if the goods are- delivered for carriage at bombay to be sent to destination station delhi and even if loss occurred at gwalior by the simple expedient of getting a railway receipt endorsed, for valuable consideration at madras. a reference to the amendment of 1961 would show that the places where suit could be instituted, namely where goods are delivered or loss occurs or destination station lies are all immediately connected with the movement of goods and necessarily would have the relevant information and material available to them to effectively defend the action. it is well settled that the special overrides the general, and to such a situation the well-known maxim 'general special bus non derogant' applies. patel's contention were to be accepted this would..........judge 1st class dated 11-7-1978 by which he directed the return of the plaint on the ground that delhi courts have no jurisdiction. the matter originally came up for hearing before s. s. chadha, j. who doubted the correctness of the view expressed by prakash narain, j. (as his lordship then was) when disposing of preliminary objection in suit no. 961971 decided on 8-2-72 and referred the matter to a larger bench. that is how the matter has come up before us. (2) the plaintiff delivered the consignment of 6 cases of machinery at cernac bridge on the western railways, administration. the destination station was kiratpur saheb (in the northern railway administration) which is outside the jurisdiction of delhi courts. instead of six cases which were boomed 5 cases were received, it is not.....
Judgment:

Sachar, J.

(1) What is the effect of Section 80 of Indian Railways Act (to be called the act) as amended by Parliament Act 39 of 1961 viz-a-viz Section 20 of Civil Procedure Code is the question for decision by us. This is an appeal against the order of Sub- Judge 1st Class dated 11-7-1978 by which he directed the return of the plaint on the ground that Delhi Courts have no jurisdiction. The matter originally came up for hearing before S. S. Chadha, J. who doubted the correctness of the view expressed by Prakash Narain, J. (as his lordship then was) when disposing of preliminary objection in Suit No. 961971 decided on 8-2-72 and referred the matter to a larger bench. That is how the matter has come up before us.

(2) The plaintiff delivered the consignment of 6 cases of machinery at Cernac Bridge on the Western Railways, Administration. The destination station was Kiratpur Saheb (in the Northern Railway Administration) which is outside the jurisdiction of Delhi Courts. Instead of six cases which were boomed 5 cases were received, It is not disputed that the loss did not occur at Delhi. That is why when the suit was filed the Railways took the preliminary objection that Delhi courts have no territorial jurisdiction in view of Section 80 of the Railways Act. This pica found favor with the trial court which held that under section 80 of the Indian Railways Act a suit can only be brought either in a court having jurisdiction over the place where the goods were delivered for carriage or over the place where the destination station lies or where the less occurred. As Delhi is not one of three places as contemplated by Section 80 of the Act, Delhi Courts would not have jurisdiction. Mr. Patel, the learned counsel for the appellant naturally first relied on the decision of Prakash Narain. J. mentioned above which had held that the provisions of Section 80 of the Railways Act were not the only ones to determine the territorial jurisdiction of the courts and. that a suit could also be filed against a Railway Administration at a place where its Headquarters were situated. Now Kiratpur Saheb. the destination station though outside the jurisdiction of Delhi Courts is within Northern Railway Administration. The Headquarters of Northern Railway arc admittedly situated in Delhi. If, thereforee, the test to determine the territorial jurisdiction would be the place of Headquarters of the Railway Administration which is being sued, Delhi Courts would have undoubted jurisdiction vide AIR 1963 Sc 1981 Union of India and another V. Sri Ladulal Jain; wherein it was held that as the Union of India carries on the business of running Railways it could be used in the courts at a place within whose territorial jurisdiction the Headquarters of one of the Railways run by the Union of India is situated. This decision however, was given on the unamended Section 80 of the Railways Act. A very vital amendment of Section 80, however, was brought about by substitution of a new Section 80. Apart from adding the Railway Administration in which destination station lies as one of the Railway Administrations which could be sued, the following important addition was made, ''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 animals or 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.'

(3) The question has arisen in this case because the suit has been filed in Delhi courts which have no jurisdiction over either of three places, namely where the goods were delivered or the destination station, or the place where the loss is said to have occurred. The only justification for claiming Jurisdiction for a Delhi Court is said to be because of the destination station, Kiratpur being within the Northern Railway Administration and as the headquarters of Northern Railway are at Delhi the jurisdiction of Delhi court is claimed by invoking Section 20(b) of the Code of Civil Procedure on the ground that the Northern Railway is carrying on its business within Delhi as its headquarter is situated here. Now the territorial jurisdiction where to file the suit against the Railways has always posted difficulties and has caused various conflicting views amongst different courts. Before section 80 was originally enacted there was an elaborate case law whether the Railways could be held liable in tort or by recourse to the doctrine of agency or by a partnership. Section 80 (prior to its amendment by Act 39 of 1961) provided that in a suit for compensation for injury to through-booked traffic suit could be brought against a Railway Administration to which the goods were delivered or against the Railway Administration on whose Railway the loss occurred. It will be seen that Section 80 (as unamended) did not cover the case of permitting the Railway Administration within which destination station lay to be sued. That led to various devices by courts to permit the Railway Administration within which destination station was situate to be sued. Some courts held that the Railway Administration to which the goods were delivered was the agent of the Railway Administration within which destination station lay and, thereforee, the Railway Administration of the destination station could be sued as the principal. Some courts however, took the contrary view and held that only the Railway Administration to which the goods were delivered or the railway where the loss occurred could be sued. See : AIR1949Pat329 Governor General of India in Council v. Sukhdeo Ram Marwari & another.' As held in : [1969]1SCR910 Union of India v. Brij Lal the liability under Section 80 is statutory and overrides all agreements and that suit could be brought against the administration to which the goods were delivered by the consignor irrespective of the question whether or not the goods were lost on its Railway and that suit can be brought against the other administrations only if loss occurred on their railways. The uncertainty about the Railway within which destination station lay, was removed by the first part of Section 80. as substituted by Act 39 of 1961. The destination station Kiratpur is within Northern Railway Administration. Had the first part of Section 80 been the only amended provision the appellant plaintiff might have been in a position to sue in Delhi courts on the basis of : [1964]3SCR624 (supra.). But this contention would ignore the significant change brought about by the later part of the substituted section 80 of the Act, as mentioned earlier, under which the suit may be instituted in a court having jurisdiction over the place at which the goods were delivered for carriage or over the place in which destination station lies, or loss occurred. Delhi does net satisfy any of the tests because Delhi courts have no jurisdiction over any of these three places. What is however, urged by Mr. Patel is that notwithstanding this limitation brought in by amendment Act 39 of 1961 it is still permissible to invoke Section 20(b) of the Code of Civil Procedure and as the head- quarters of Northern Railway is in Delhi suit has been properly brought in Delhi. We cannot agree. This argument really seeks to make the specific provision made by 1961 amendment as to the courts within which three places are situate, where the suit could be instituted as a supplemental and merely enabling one. It appears to us that if this view was to be accepted then the whole exercise of the amendment specifying the places and courts where the suit may by instituted would become nugatory and superfluous. If after amendment it was still permissible to invoke Section 20 Civil Procedure Code even for the purpose of instituting the suits against Railway then we do not see why it was necessary to indicate with such detail, the three different places because even in the absence of such a provision suit could have been filed at any of these three places by virtue of Section 20 of the Code of Civil Procedure. In our view why it was necessary to specify the places where suit can be invoked is to prevent suits being filed in places other than these three by say, creating a cause of action like endorsement of a Railway Receipt in favor of a person within the jurisdiction of a particular court. Thus in : AIR1975Cal265 M/s. Ganpatrai Sagarmull and other v. Union of India; it has been held that where a person gets a Railway Receipt endorsed in his favor by paying valuable consideration a cause of action accrued at that place. In such a case it might be possible to file a suit at Madras even if the goods are- delivered for carriage at Bombay to be sent to destination station Delhi and even if loss occurred at Gwalior by the simple expedient of getting a railway receipt endorsed, for valuable consideration at Madras. But even Mr. Patel was not prepared to go to such length and conceded that so far as the cause of action in section 20(c) Civil Procedure Code was concerned the same will be inapplicable in view of the specific indication in Section 80 of the Act as to the Railways which could be sued. However, he urged that the question of territorial jurisdiction covered by Section 20(b) was not excluded by Section 80 of the Act. We can not read that dichotomy which would imply that a part of Section 20 must be held to be impliedly inapplicable after Act 39 of 1961 and yet another clause of Section 20 would continue to be applicable. The reason is that when Section 80 after amendment indicates the places and the courts having jurisdiction over those places as the only ones where suit may be instituted it necessarily carries the inevitable implication that suits can not be brought at any other place than those specified in Section 80 of the Act. The purpose of amending Section 80 of the Act is to indicate with certainty the specified places, keeping in view the various considerations of convenience and expediency that the Railway must not be asked to fight litigation at places which have no immediate relevancy to the booking of the goods and would thereforee, necessarily be at a disadvantage in defending the litigation. A reference to the amendment of 1961 would show that the places where suit could be instituted, namely where goods are delivered or loss occurs or destination station lies are all immediately connected with the movement of goods and necessarily would have the relevant information and material available to them to effectively defend the action. It is no doubt true that in A.I.R. 1971 Gauhati 69 M/s. Assam Cold Storage Co. v. The Union of India it was held that notwithstanding the amendment in Section 80 applicability of Section 20 continued and, thereforee, the suit could be brought in Gauhati because the headquarters of North East Frontier Railway was situate there. It seems to us that the full impact of The amendment was not, with respect, appreciated by the Assam High Court. In our view the correct view has been taker, in : AIR1977Kant132 . The Union of India v. C. R. Prabhanna & Sons; where E, S. Venkataramiah, J. (as his lordship then was) has held that Section 80 lays down the courts where suits can be filed and the special provision of Section 80 would exclude the operation of the general provision of Section 20 of the Code of Civil Procedure which would have to be, read as not being applicable to suits falling under Section 80 of the Railways Act, after Act 39 of 1961 came into force. Thus Section 80 of the Act is a specific provision dealing with the territorial jurisdiction of suits to be filed against Railways and Section 20 of the Civil Procedure Code which is a general provision is inapplicable in these cases. Section 80 though it uses the expression 'may' has the effect of mandatory direction, and that this provision has been made not only to assist any suitor for compensation but also 'to afford protection to the Railways and that the plaintiff must sue one or more particular railway administrations under Section 80 of the Act. See (1970) I.M.L.J. 72 Union of India v. M/s. G. Swaminathan Mudaliar Sons Amendment Act 39 of 1961 deals with the territorial jurisdiction of the courts. Vide : AIR1972All288 Union of India v. Bhagat Ram. The decision in Suit No. 96177 decided on 8-2-1972 by Prakash Narain, J. does not advance the matter any further because there is no detailed discussion in it and the sole reasons is that the word 'only' is not used in Section 80 of the Act, it does not exclude the applicability of Section 20 of the Civil Procedure Code . But, with respect, what has to be asked is whether it is possible to accept that when the legislature was substituting a new Section 80 of the Act, especially the later part, still it was contemplating that the provision of Section 20 Civil Procedure Code would continue to apply to these suits notwithstanding the specific references to places mentioned under Section 80 of the Act, determining jurisdiction where suits were to be filed. In our opinion there is a complete occupation of the field in the matter of suits to be filed against the railways under Section 80 of the Act and that both Section 80 of the Act and Section 20 Civil Procedure Code cannot co-exist. In that view Section 20 Civil Procedure Code being a general provision must give way as Section 80 of the Act is a special provision and will prevail over the former. See : 1980CriLJ1440 Maru Ram v. Union of India. The obvious difference and distinguishing feature from the present case is that in that case what was found was that an offence under Section 177 did not cease to exist merely because Section 52 of the 1922 Act also provided for prosecution for the same kind of an offence. The court refused to read an implied repeal of section 177 Indian Penal Code . The present case is totally different. Section 20 of the Civil Procedure Code provides for institution of suits and the determination of territorial jurisdiction in all kinds of cases' brought before the Civil Courts. Section 80 of the Railways Act specifies the places where suits have to be instituted against the Railways. The conflict here is between the special provision and the general provision. It is well settled that the special overrides the general, and to such a situation the well-known maxim 'general special bus non derogant' applies. 'The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and Judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them, his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect'. As said at page 2202 of the above authority to avoid absurdity and injustice by judicial servitude to interpretative literality is a function of the court. Section 80 of the Act would thus displace the applicability of Section 20 Civil Procedure Code , in so far as it concerns territorial jurisdiction of courts when suit is to be instituted against the Railways. The reference by Mr. Patel to Maxwell on Interpretation of Statutes 12 Edition page 158 does not advance the matter. All that the cases mentioned there lay down is that if the right is a common law right, the remedy of common law is not taken away on the general principle that the jurisdiction of the High Court is not to be taken away without express words. But it also recognised that if remedies are created by statutes and specific tribunals created, only that remedy can be resorted to and not to the High Court. But that illustration does not apply in the present case. Here no new remedy or the Tribunal is being constituted.

(4) The procedure always was and even now is for a person aggrieved to file a suit for compensation against the Railways. Whereas prior to amendment in 1961 the jurisdiction of the courts was determined by a general provision of Section 20 Cpc, the same is now restricted to those courts specified in Section 80 of the Act. It is analogous to 'an agreement between parties to a contract to the effect that a suit concerning disputes arising between them on the basis of that contract should be instituted in one only out of two competent courts having territorial jurisdiction over the subject-matter of that suit is valid and enforceable and is not void under Seel ion 28,' Air 1946 Lah 57 Section 80 of the Act is a statutory substitute of the mutual agreement. If this limitation to where suits can be instituted is not to be restricted to as specified in Section 80 of the Act we do not see what purpose was to be served by the later part of Section 80 of the Act. The whole attempt of the legislature by various amendments has been to make the question of jurisdiction in litigation against the railways as specific and certain as can be reasonably done. That is why Realizing that courts were having to indulge in the exercise of invoking the principle of agency, partnership, tort to place liability on different Railways Section 80 was enacted to evolve some system. Further improvement was made by amendment in 1961 by specifically including the Railway in which destination station as being liable to be sued. This opportunity was utilised to go further and provide for jurisdiction of courts by laying down that the suit may be instituted in a court having jurisdiction over the place in which the goods were delivered for carriage or over the place in which destination station lies, or the loss occurred. Having specifically indicated the places at which the suits could be instituted the said declaration by the legislature cannot be allowed to be a' mere pious declaration and of no effective potency but merely an enabling provision indicating that the party concerned may file a suit at these places also as would be the result if Mr. Patel's contention were to be accepted This would virtually render the purpose of section 80 after amendment as nugatory and the whole object would be defeated.

(5) We are, thereforee, in agreement with the view expressed by Chadha, J. that the object of restricting the territorial jurisdiction would be defeated if the suits were to be filed at places not mentioned only in Section 80 of the Act but. also by applicability of Section 20 Civil Procedure Code . In our view the opinion expressed by Chadha, J. is to be preferred to Prakash Narain, J. and we would, thereforee, answer the question by holding that after the amendment of Section 80 by Act 39 of 1961 the suits for compensation against the Railways can only be instituted in a court having jurisdiction over the place in which the goods were delivered for carriage or over the place in which destination station lies or the loss or damage occurred. As none of the said places fall within the' jurisdiction of Delhi Courts it is apparent that the suit was wrongly filed in Delhi Courts. In that view we would uphold the order of the trial court and dismiss the appeal, but with no order as to costs. We would further direct that the plaint be returned to the plaintiff for presentation to a proper court. We would permit the plaintiff to move the trial court for return of the plaint within a period of two months from the date of our judgment, in terms of order 7 Rule Ioa Civil Procedure Code .


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