J.P. Jain, J.
1. This appeal has been filed by Union of India against which a decree for Rs. 8500/13/6 has been passed by the Civil Judge, Pali and affirmed by the District Judge, Pall.
2. Firm Sukanlal Sohanlal, a joint Hindu family firm instituted a suit on 5-4-48 against the Darbar, Jodhpur, representing the Jodhpur State Railway and Governor General, Government of India, as representing B.B. & C.I. Railway, New Delhi, in the Civil Court Pali. The allegations in the plaint were that the plaintiff firm despatched two consignments of two packets each from Bombay Central to Marwar Pali The first consignment was by Parcel Way Bill 795164 dated 19-3-1047 and the second consignment was by Parcel Way Bill No. 796582 dated 23-3-1947. According to the plaintiff firm both the consignments contained artificial silk, and the price of the goods was Rs. 8651/2/6 which has beed specified in detail in appendix accompanying the plaint. It was alleged that the parcel did not reach Marwar Pali within a reasonable time. On 7-4 47 the plaintiff firm referred the matter to the Administration Jodhpur State Railway for delivery of the said consignment. In reply to the said communication Railway Administration Jodhpur State informed the firm that it is inquiring into the matter. After sometime the consignment reached the Railway Station, Marwar Pali and the plaintiff firm was asked to take the delivery. According to the plaintiffs the two consignments were not intact and as such it was requested for an open delivery. The Railway Administration allowed the open delivery and it was found that the two consignments contained American paper. The plaintiff firm refused to take the delivery Thereupon the plaintiff firm made representation to the Jodhpur State Railway Administration on 3-6-1947, 3-7-1947, and 21-9-1947 saying that the two consignments were despatched from Bombay Central containing artificial silk It was entitled to claim damages from the Railway Administration. The damages were not paid and hence this suit by the plaintiff firm against two Railway Administations claiming Rs. 8561/2/6 as the price of the goods and Rs. 448/13/6 as interest by way of damages. The plaintiffs' claim thus was for Rs. 9000/-.
3. Both the defendants resisted the suit by separate written-statements and maintained that the two consignments only contained American paper, and not the artificial silk. As a result of the merger of the Jodhpur State Railway and change in the set up of B.B. & C.I. Railway, Union of India was made the party. It was impleaded as defendant No. 1 to represent the General Manager, Jodhpur State Railway. It was also impleaded as defendant No. 2. to represent the General Manager Western Railway, Bombay. Amended written statements were filed by Union of India in two capacities The contentions, however, remained the same. Union of India, however by the last amendment in its written statement on behalf of the Western Railway took the plea that the plaintiff failed to give notice under Section 77 Indian Railways Act and Section 80 of Code of Civil Procedure, and as such the plaintiff's suit was not maintainable.
4. The case came to be tried by the Civil Judge, Pall. On 24-9-62 the learned trial Judge framed as many as six issues in the suit. The Trial Judge held that it was artificial silk which was despatched from Bombay Central to Marwar Pali. Notices under Section 77 Indian Railways Act and Section 80, Code of Civil Procedure were not obligatory on the part of the plaintiff's for maintaining the suit in the court established in the erstwhile State of Jodhpur. He decreed the plaintiffs' suit for a sum of Rs. 8 509/13/6. He did not allow the plaintiff firm interest as claimed or interest pendente lite. He however allowed future interest on the decretal amount @ 6% per annum from the date of the decree till realisation. This decree was passed against Union of India as representing the General Manager, Western Railway, Bombay.
5. On appeal by Union of India the decree passed by the Civil Judge was confirmed. There being cross-objections on behalf of the plaintiffs' firm the learned lower appellate Court allowed pendente lite and future interest at the rate of 4% per annum With this modification the decree of the trial Court was affirmed This decree is the subject matter of challenge in this appeal.
6. Mr. Bhansali learned Counsel for Union of India and Mr. H.M. Parikh learned Counsel for the respondent firm addressed this court at a considerable length. I will deal with the submissions canvassed at the bar one by one.
7. The first contention raised on behalf of the appellant is that a notice under Section 77 was imperative. Mr. Bhansali, also invited my attention to a notice dated 25-9-1926 published in the Marwar Gazette of October 2, 1926.
Dated, Jodhpur the
25th September, 1926,
It is hereby notified for the information of the general public that his Highness the Maharaja Sahib Bahadur has at the recommendation of the State Council been pleased to order that the Indian Railways Act IX 1890 Mutatis Mutandis be made applicable to the jodhpur Railway within the territory of Marwar and that the offence of travelling without a ticket be made an offence there under punishable with fine and imprisonments.
Sd/ Sukhdeo Prasad
Political & Judicial
Member State Council
8. On the basis of this notification it has been argued that the Indian Railways Act, 1890 was applicable to the State of Marwar and as such the requirement of Section 77 were to be complied with before a suit for Compensation for loss of the goods allegedly not delivered could be entertained. In answer to this contention the learned Counsel for the respondent firm pointed out that the Indian Railways Act, 1890, has been made applicable Mutatis Mutandis in the territory of the State of Marwar and as such with a necessary change as contemplated by the notification Section 77 would only require the plaintiff firm to get a notice to the Railway Administration under the State of Marwar. My attention was also drawn to para 6 of the plaint wherein it has been mentioned that the plaintiff firm gave notice of the loss on account of the non delivery of the goods to the Jodhpur State Railway on 3-6-47, 3-7-47 and 21-9-47 This fact has been admitted by the defendant No. 1 in his written statement dated 17-7-1948 Section 77 of the Railways Act is applied to the State of Marwar does not prescribe a particular form of notice. The object of the notice is only to apprise the Railway Administration concerned that a certain loss has occurred on account of the non delivery of the goods and as such the notice has to be given within six months from the date of the delivery. Thus three notices were admittedly given to the Railway Administration of the Jodhpur State Railway, and as such it cannot be argued that the requirement of Section 77 of the Indian Railways Act as applicable to the State of Marwar, has not been complied with. The contention of Mr. Bbansali in this respect has no substance.
9. The second part of his submission is that no notice under Section 77 was given to the General Manager, B.B. & C.I. Railway to which the two consignments were delivered For this argument he placed reliance on Section 77 of the Indian Railways Act both as applied in the State of Marwar and as applicable in the British India. It is true that a notice to the General Manager B.B. & C.I. Railway was not given by the plaintiff firm and it has to be examined if it was obligatory in a case of this nature. Bombay Central was a foreign territory. Section 77 of the Railways Act as applied to the State of Marwar cannot be construed to make it obligatory to the plaintiff firm to give a notice to a foreign resident. It was open to the General Manager, B.B. & C.I. Railway to have or not to have contested the suit in the State of jodhpur. In the present case the appearance was put in on behalf of defendant No. 2 and the written statement was also filed and as such B.B. & C.I. submitted to the jurisdiction of the court situated in the State of Marwar. The question now therefore arises is whether Section, 77 of the Indian Railways Act as in force in British India was applicable to the plaintiff as to make it obligatory on his part to serve a notice as contemplated by Section 77 of the Indian Railways Act. Mr. Bhansali submitted that Railway Administration means all the Railway Administrations. He also placed reliance on Iethmull Bhojraj v. Darjeeling Himalayan Railway Co., Ltd. and Ors. AIR 1962 SC 1879. In this case 259 bales were delivered at Wadi Bunder station on the Great Indian Peninsula Railway to be carried to Giellekhola a station on Darjeeling Himalayan Railway, In order to reach the destination station the goods had to be carried over four railways, namely the Great Peninsula Railway, East India Railway, the Bengal Assam Railway, and the Darjeeling Himalayan Railway. The Darjeeling Himalayan Railway was owned by a private Company but all other three railways were owned by the Government of India. In this case a notice under Section 77 Railways Act was given only to the Darjeeling Himalayan Railway, While dealing with the case their Lordships of the Supreme Court held that notice under Section 77 must be given to every Railway Administration against whom the suit is eventually filed. The trial court's decree was maintained as the notice was given to the Darjeeling Himalayan Railway. Notices having not been given to the other Railways, the plaintiff's claim against them was dismissed. It is to be noted that all these four railways were situated in British India and the Indian Railway Act was applicable there and by virtue of Section 77 it was imperative on the part of the plaintiff co get a notice as contemplated by Section 77 before maintaining a suit for compensation for loss of goods. The facts of the case before me are different. Here the two Rlys. are not situated in British India. Jodhpur State Rly. was an independent Rly functioning in the State of Marwar Though Indian Railways Act was made applicable but it was in force Mutatis Mutandis within the territory of Marwar. Bombay Central where the goods were delivered by the agent of the plaintiff firm was situated in British India and the railway to which it was delivered, was B.B. & C.I. Railway. As such the Supreme Court case is not of assistance to support the contention of Mr. Bhansali.
10. That apart, the contention of Mr. Parikh is that on the facts and circumstances of the case, the doctrine of lex fori is applicable. According to him since the suit was instituted in the State of Marwar the procedural law applicable would be the law of that Slate. Halsbury's Laws of England, third edition Volume VII Part 9 para 298, laws down that the general principle is that all matters of procedure are governed by the Lex for , that is, the law of the country in which the action is brought. That law will be decisive as to the person to sue as plaintiff, unless the plaintiff claims to sue under a substantive title acquired in another country.
11. A defendant cannot in any circumstances put forward the provisions of a foreign law requiring proceedings to be brought against another person as a condition precedent to an action being brought against himself. Such a plea affects the remedy available against him. And this, being a matter of procedure only, is for the lex fori Dicey and Morris in 'Conlict of Laws' stated the law in this respect in Rule 204, Chapter 36 as follows:
All matters or procedure which governed by the domestic law of the country to which the Court wherein any legal proceedings are taken belongs (lex fori). In this rule the term 'procedure' includes (inter alia) certain aspects of the following matters : 1. Remedies and process; 2. Damages; 3. Statutes of Limitation; 4. Evidence 5. Parties; 6. Priorities; 7. Set-off and counter claim; 8. Security for costs.
Learned authors further comment :
The principle that procedure is governed by the lex fori is of general application in this universally admitted. In a body of Rules such as those contained in this Digest, which state the principles enforced by an English court, the maxim that procedure is governed by the lex fori means in effect that it is governed by the ordinary law of England without any reference to any foreign law whatever. Thus the English court will always apply its own rules of procedure, and will more over, refuse to apply any foreign rule which in its view is procedural.
12. The question that now arises is whether giving of a notice under Section 77 Indian Railways Act is a matter of substance or procedure. In this connection reference may be made to State of Seraikella and Ors. v. Union of India and Anr. AIR 1951 SC 253. In para 38 Mahajan J. observed:
'Practice' in its larger sense like procedure, denotes the mode of proceedings by which a legal right is enforced, as distinguished from the law that gives and defines the right 'Procedure' as defined in Wharton means the mode in which successive steps in litigation are taken. It seems to me that what is enacted in Section 80 is the first step in litigation between the parties when the cause of action is complete. Section 80 in effect provides that an advance copy of the plaint should be served on the defendant and no suit should be instituted in Court until the expiry of two months after such service. Section 80 does not define the rights of parties or confer any rights on the parties. It only provides a mode of procedure for getting the relief in respect of a cause of action. It is a part of the machinery for obtaining legal rights, i. e., machinery as distinguished from its products, vide Poyser v. Minors (1881) 50 L J Ex. 655.
13. Notice under Section 77 Indian Railways Act cannot be placed on a higher footing than a notice under Section 80 Code of Civil Procedure.
14. After having considered the law on the point I am clearly of the opinion that it is well accepted rule of international law that all rules and procedures will be governed by the law of the country in which the court where any legal proceeding is initiated, is situate, & the matter of giving a notice as required by Section 77 of the Indian Railways Act as applicable to British India is a matter of procedure. I am, therefore, unable to accept the contention of Mr. Bhansali that the plaintiff can now be non-suited for having failed to give such a notice to the representative of the Railway Administration of B.B. and C.I Railway.
15. Next contention that has been urged on behalf of the appellant is that notice under Section 80 was equally imperative and as the notice was not given by the plaintiff firm to the Railway Administration, B.B. and C.I. Railway, the suit cannot be maintained against it. There is no controversy between the learned Counsel for the parties that in the State of Marwar, the Marwar Code of Civil Procedure was applicable and it did not contain a provision corresponding to Section 80 of the Code of Civil Procedure. Section 80 as it stood in 1948 read as follows:
Section 80.-Notice. No suit shall be instituted against (the Government ), or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been, delivered to or left at the office of....
(a) in the case of a suit against the Central Government, (except where it relates to a railway), a Secretary to that Government.
(b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway;
(c) in the case of a suit against a Provincial Government, a Secretary to that Government or the Collector of the District.
and in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
16. From the perusal of this section it appears that a suit against a public officer or against the Government cannot be entertained unless a notice contemplated under Section 80 has been given. This Section 80 was not applicable in the State of Marwar. There was, therefore, no mandate to the Court in the State of Mar war to refuse to entertain the suit filed against the defendant No. 2. This argument has been negatived by both the courts below and I find no substance in it.
17. Learned Counsel for Union of India then urged that the Courts below have erred in rejecting Ex.A/1 and Ex.A/4 These two documents are said to be 'Rawangi' of goods. They do not purport to have been signed by any agent of the plaintiff. There is no evidence on record to prove as to who wrote them. In this view of the matter these two documents have been rightly excluded from consideration.
18. In has also been urged that the finding of the courts below that the two consignments contained artificial silk was erroneous. In this connection, the original parcel way bills which are Ex. A and Ex. B may be referred The description of the goods has been mentioned on behalf of the Union of India as artificial silk Copies of these two bills Ex.A/2 & Ex.A/3 have been brought on record by Union of India. On the basis of these two copies it has been argued that the copies do not mention artificial silk as shown in the original parcel way bills. The suggestion is that parcel way bills have been tampered with to that extent. The courts below have discussad the oral evidence in this regard and did not accept the copies to be the true copies of original parcel way bills. I have been taken through the evidence on this point, and I find no good reason to differ from the view taken by the courts below The finding that the two consignments contained artificial silk does not call for any interference.
19. Next it has been argued that the plaintiff firm was not entitled to claim interest on damages. Mr. Bhansali referred to Mahavir Prasad Rungta v. Durga Datta AIR 1961 SC 990. Their Lordships held in chat case that it was well settled that interest on damages cannot be awarded. Mr. Parikh on the other band, has argued that the trial Court has not allowed interest as damages. The plaintiffs suit has only been decreed for Rs. 8,509/13/6 which represented the price of the goods. The trial Court allowed future interest at 6% per annum. The first Appellate Court allowed interest pendente lite and future till the date of realisation at 4% per annum Their Lordships of the Supreme Court in the case of Mahavir Prasad Rungta referred to above laid down that interest pendente lite and future Interst until the date of realisation is within the discretion of the Court. The authority referred to by Mr. Bhansali does not help him in his contention that interest allowed by the courts below has been contrary to law.
20. He then urged that the discretion of the trial Court should not have been interfered with by the first appellate Court. After having read the judgment of the trial Court I find that the trial Court has not given any reason for not allowing interest pendente lite. The appellate Court was, therefore, right, to accept the cross-objections of the plaintiff firm and in allowing the interest pendente lite as well. The rate bf interest has, however, been reduced from 6% per annum to 4% per annum for the advantage of the appellant. This contention has, therefore, no substance. No other point was argued. In the result I see no force in this appeal and dismiss the same with costs.
21. Learned Counsel for the appellant prays for leave to appeal to Division Bench, Leave is refused.