1. The following quetion has been referred for the opinion of a Division Bench of this Court by Kader J. -
'Whether S. 80 of the Railways Act as amended excludes the operation of S. 20 of the Civil P.C.- and Cl. 12 of the Letters Patent?'
The question has arisen for consideration in the following circumstances. The first plaintiff is a company incorporated Linder the Companies Act, having the registered office at Bangalore and carrying on business at Kalarnassery, Ernakulam. The second plaintiff is a registered society carrying qn business at P.W. Satsung Bihar. The third plaintiff is the insurer who has settled the claims of the second plaintiff and got subrogated to the rights, having its registered office at Madras. A consignment of one case containing HNIT printing machine Letter Press Atesa/RTE 1052, was entrusted by the first plaintiff to the first defendant Southern Railway administration at Cochin Harbour terminus for being delivered to the second plaintiff at Baidyanath Dam within the jurisdiction of the second defendant, the Eastern railway. At the time of unloading at the place of destination the machine fell down while being lifted and sustained heavy damage. The plaintiffs attribute the damage to the negligence on the part of the railway Administration and have accordingly filed the suit on the original side of this Court for the recovery of Rs. 2,47,586-67 as damages for the loss sustained. The first defendant, Southern Railway raised a preliminary objection that this Court has nojurisdiction to entertain the suit under S. 80 of the Rlys. Act 12 as no part of the cause of action arose within the territorial jurisdiction of this court.
2. The contention of Mr. P. S. Srisailam the learned counsel for the defendants-railways is that under S. 80 of the Rlys. Act, as amended by the Amending Act No. 39 of 1961, a suit for compensation for loss, destruction, damage, deterioration or non-delivery of goods can be filed only in three places, viz. (1) in a court having jurisdiction over the place at which the goods were delivered for carriage; (2) in a court having jurisdiction over the place in which the destination station lies; and (3) in a court having jurisdiction over the place at which the loss, destruction, damage or deterioration occurred. According to the learned counsel, S. 80 of the Rlys. Act as amended by the Amending Act No. 39 of 1961 has the effect of excluding the operation of S. 20 C.P.C. and Cl. 12 of the Letters Patent. The learned counsel referred to S. 4 of the C.P.C. and argued that the Rlys. Act i a special enactment should prevail over the provisions of the Civil P.C. and the letters Patent. If the matter is viewed in this light, the learned counsel submitted, that it would be seen that this Court would have no jurisdiction to entertain the suit on its original side.
3. On the other hand, the submission of Mr. Sampath Kumar, is that the amendment of S. 80 of the Rlys. Act by theamending Act No. 39 of 1961 does not in any way exclude the operation of S. 20 C.P.C. and Cl. 12 Letters Patent. According to the learned counsel, the amendment has not in any way materially altered S. 80 of the Railways Act as it originally stood. It has only added another place for the institution of the suit, viz, the court within whose jurisdiction the destination station lies.
4. Before we proceed to answer the question referred to us for decision, it is necessary to extract the relevant statutory provisions. S. 80 of the Rlys. Act, as it originally stood, reads as follows:
'80. 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 of the life of, or personal injury to, a passenger, or for loss, destruction or deterioration of animals or goods where the passenger was or the animals or goods were booked through over the railways of two or more railway administrations, 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.'
This section was amended by the Amending Act No. 39 of 1961. The Statement of Objects and Reasons is found as follows in the Gazette of India dated 7th Aug. 1961. 'The Railway Freight Structure Enquiry Committee (1956-57) has recommended that the responsibility of the Railways in India as carriers of animals and goods, which is at present that of a bailee, shall be changed to that of a common carrier. There is also a demand for such a change'. Apart from this, we do not find any particular indication for the substitution of a new section in the place of the old S. 80. S. 80 as substituted by the Amending Act 39 of 1961 reads as follows:-
80. A suit for compensation for loss of the life of, or personal injury to, a passenger or for loss, destruction, damage, deterioration or nondelivery of animals or goods may be instituted-
(a) if the passenger was, or the animals or goods were, booked from one station to another on the railway of the same railway administration, against that railway administration;
(b) if the passenger was, or the animals or goods were, booked through over the railway of two or more railway administrations, against the railway administration from which th6 passenger obtained his pass or purchased his ticket or to which the animals or goods were delivered for carriage, as the case may be or against the railway administration on whose railway the destination station lies, or the loss, injury, destruction, damage or deterioration occurred, 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 tie loss, injury, deterioration, destruction, damage or deterioration occurred.'
5. S. 20 of the Civil P.C. reads thus :-
'20. Other suits to be instituted where defendants reside or cause of action arises :-
Subjebt to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction - (a) the defendant, or each of the defendants where here are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part arises,
Explanation I : Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence;
Explanation II : A Corporation shall be deemed to carry on business at its sole or principal office in India or in respect of any cause of action arising at any place where it has also a subordinate office, at such place.'
6. Cl. 12 of the L. P. reads as follows-
'Original jurisdiction as to suits: - And we do further ordain that the said High Court of Judicature at Madras, in exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try and determine suits of every description if, in the case of suits for land or other immovable property, such land or property shall be situated, or, in all other cases, if the cause of action shall have arisen either wholly or in case the leave of the court shall have been first obtained, in part within the local limits of the ordinary original jurisdiction of the said High Court, or if the defendant at the time of the commencement of the suit shall dwell or carry on business or personally work for gain, within suco limits; except that the said High Court shall novhave such original jurisdiction in cases failing with the jurisdiction of the Small Cause. Court at Madras, in which the debt or damage, or value of the property sued for does not exceed one hundred rupees.'
7. Reliance was also placed on S. 4 of the Civil P.C. and also Cl. 44 of the L. P. Sec. 4 of the Civil P.C. reads:
'4(1). In the absence of an), specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any-special form of procedure prescribed, by or under any other law for the time being in force.'
8. Cl.44 of the L.P .reads thus:-
'44. Powers of Indian Legislature preserved and we do further ordain and declare that all the provisions of these our Letters Patent are subject to the legislative powers of the Governor-General in Legislative Council, and also of the Governor General in Council under S. 71 of the Government of India Act, 1915, and also of the Governor General, in cases of emergency under S. 72 of the Act and may be in all respects amended or altered thereby'.
The argument of Mr. Srisailam, is that S. 80 of the Railways Act, as amended by the Amending Act No. 39 of 1961, should be taken to have repealed S. 20 of the Civil P.C. and Cl. 12 of the L. P., in so far as suits for compensation against the railways are concerned in accordance with the provisions contained in S. 4(1) C.P.C. and Cl. 44 of the Letters Patent. Further, the Railways Act being a special law and the Civil P.C. and the Letters Patent being general laws, S. 80 of the Railways Act should prevail over S, 20 and Cl. 12. According to the learned counsel, S. 80 of the Railways Act as it stood before the amendment did not mention the courts in which the suits for compensation can be filed. It merely stated that a suit for compensation for loss, destruction or deterioration of goods may be brought either against the railway administration from which the goods were delivered or against the railway administration on whose railway the loss, injury, destruction or deterioration occurred. But the amended S. 80 states that a suit for compensation may be instituted in a court having jurisdiction Over the place at. which the goods were delivered for carriage, or in a court having jurisdiction over the place in which the destination station ties, or in a court of a place where the loss, injury, destruction, damage or deterioration occurred. Thus, when S. 80 specifically refers to the Courts where a suit for compensation has to be filed, S. 80 should prevail over S. 20 C.P.C. and Cl- 12 of the Letters Patent and they should not be invoked for the purpose of filing the suit for compensation against the railways. For the contention that the amended S. 80 excluded S. 20 C.P.C. and Cl. 12 of the L. P., for the purpose of filing a suit for compensation against the railways, the learned counsel relies upon the judgment of Ratnam J. in Annamalai Chettiar v. Union of India, (1982) 94 MLW 447: AIR 1982 NOC 86, and the decisions of the Karnataka High Court, the Bombay High Court, and the Delhi High Court- In Annamalai Chettiar v. Union of India (1982) 94 MLW 447 : WR 1982 NOC 86, the suit was iffed in Thanjavur by the consignor of certain goods which were booked at a station of the Southernrailway within the jurisdiction of the Court in Thanjavur for be ing carried to New Delhi, alleging that they were delivered in a damaged condition according to an assessment certificate issued at the delivery station. The plaintiff impleaded the Union of India, representing the Northern Railway as the defendant and did not implead the Southern railway. Objection was taken to the maintainability of the suit on the ground of wvant of jurisdiction in the court in Thanjavur. In this connection, Ratnam J. observed as follows -
'The appellant would seek to sustain the institution of the suit before the Sub Court, Thanjavur, only oti the ground that the goods were booked from Boodhalur within the jurisdiction of the Sub Court, Thanjavur, and this according to the appellant, would be covered by S. 20(c) C.P.C. In my view, it is Pot possible to accept this contention. S. 80 of the Railways Act, was substituted for the then existing provision by Act 39 of 1961 and it provides for a complete and self-contained Code regarding the courts before which the suit referred to in that section can be instituted. S. 20 C.P.C. had been in existence at the time when S. 80 of the Railways Act was substituted by Act 39 of 1961, and even so the Parliament thought fit to provide for the institution of suits claiming compensation against railways only before certain courts under the circumstances set out in S. 80 of the Railways Act. If it had been intended that S. 20 C.P.C. should continue to be applicable even with reference to the institution of such Suits claiming compensation against railways, there was no need for specifying and enumerating in S. 80 such courts before which alone suits claiming compensation and referred to in S.80 could be filed.
9. The Union of India v. C. R. Prablianna and Sons, : AIR1977Kant132 Venkataramiah J. (as he then was) observed as follows (at p.134):-
'S. 80 as it originally stood, laid down that notwithstanding anything in any agreement purporting to limit any liability of railway administration, a suit for compensation for loss of goods could be filed either against the railway administration from which the goods were booked or against the railway administration on whose railway the loss, injury destruction or deterioration of the goods occurred. There was no reference to the territorial jurisdiction of the courts in which such suits for compensation under S. 80 could be instituted. By Act 39 of 1961, S. 80 was substituted by the new section extracted above. While doing so, the Parliament specifically mentioned in that section the courts before whom such suits could be filed. I am of the view that the Parliament when it enacted the new S. 80 intended to specify the courts before whom alone suits under S. 80 of the Railways Act could be filed. It should be remembered that S. 20 C.P. Code, was in existence even at the time when S. 80 was substituted in. the year 1961. If the Parliament intended that S. 20 C.P.C. should continue to be applicable, then there was no need for specifying in S. 80 the Courts which could entertain the suits referred to therein as they also fall within the category of courts specified in S. 20 C.P.C. While interpreting statutory provisions we should bear in mind that no legislature would ordinarily indulge in superfluity. If we accept the argument which appealed to the High Court of Assam and Nagaland, we have got to attribute to the Parliament the error of enacting a provision which would amount to a surplus age.
S. 80 of the Railways Act enacts a complete Code regarding the Courts before whom suits referred to therein can be filed. Special provisions enacted in S. 80 exclude the operation of the general provisions of S. 20 C.P.C. It is well known that special provisions exclude the operation of general provisions ....... The suits against the Union of India under S. 80 have to be filed only in the Courts specified therein. I am therefore of the view, that S. 20 C.P.C. has to be read as not being applicable to suits failing under S. 80 of the Railways Act after Act 39 of 1961 came into force.'
10. In New India Assurance Co Ltd. v. Union of India, : AIR1981Delhi135 , the' Delhi High Court observed as follows (at pp. 138 139) :
'S. 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 special overrides the general, and to such a situation the well known maxim generalia specialibus non derogant applies. The rule that general provisions should yield to specific provision 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 the 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 those 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. S. 80 of the Act would thus displace the applicability of S. 20 C.P.C. in so far as it concerns territorial jurisdiction of Courts when suit is to be instituted against the Railways.'
11. In Union of India v. Indian Hume Pipe Co. Ltd., : AIR1981Bom414 , a single Judge of the Bombay High Court after referring to the observations of the Assam High Court and the Karnataka High Court observed as follows : -
'Even if the legislation is not fully satisfactory I think it is the duty of the Court to read it in a reasonable manner, to supply the deficiency, if any, to remove the lacunae, if any found, and, to give meaning to law which otherwise it would not. have. In this view of the matter, I am more inclined to accept the approach of the Karnataka High Court which had the benefit of considering the judgment of the Assam and Nagaland High Court, but felt itself unable to agree with the views of the Division Bench.'
On the other hand, Mr. Sampath Kumar, contends that S. 80 of the Rlys. Act has not repealed S. 20 C.P.C. and Cl. 12 of the L. P. For this purpose, he relies on the judgment of this court in Union of IndiaOwning Eastern Railway v. New Kerala Engineering Works, (1981) 94 MLW 790 and the decisions of the Assam High Court and the Calcutta High Court. In Union of India Owning Eastern Railway v. New Kerala Engineering Works, (1981) 94 MLW 790, Varadarajan J. (as he then was), held:
'There is no reference to S. 20 C.P.C. in S. 80 of the Railways Act. Therefore there is no bar to the plaintiff to file the suit at Madras, where the General Manager's office is situate in respect of damages for goods booked at Ernakulam'.
12. In Assam Cold Storage v, Union of India, AIR 1971 Assam 69, a consignment of union was booked at Lasanlgoan railway station for carriage and delivery at Tansukia railway station on the North East Frontier Railway. The goods were delivered in a damaged condition by the railway at the time of delivery. Conseque.tly, a suit was filed by the plaintiff in the court of the Subordinate Judge of Gauhati. The jurisdiction of Gauhati Court was sought to be sustained by the plaintiff on the ground that the defendant carried on business at a place within the jurisdiction of that Court. On the other hand, the railway contended that S. 80 of the Railways Act being special provision on the point impliedly repealed S. 20 of the C.P.C. Goswami C. J. (as he then was) observed thus (at p. 7 1) : -
'The precise point that arises for consideration in this appeal is whether, after the amendment of S. 80, it is permissible to add any other place of suing outside the limits of S. 80 even though it may be permissible under S. 20 C.P.C. In other words, has S. 80 impliedly repealed S. 20 C.P.C. Or, could these two sections co-exist without any inconvenience or difficulty? It will be noticed that when the Legislature sought to amend S. 80, it must be assumed that it had S. 20 before it, which was the earlier section in the field on the subject. If so, in absence of any express provision to the contrary, or in absence of a clear implication in the provision, it is not possible to hold that S. 20 C.P.C. has been impliedly repealed by S. 80. When it is a question of place of suing, both the sections can co-exist and there is no repugnancy or inconsistency in the two sections standing together.'
In Traders Syndicate v. Union of India : AIR1981Cal223 , Mrs. Pratibha Bonnerjea J. had to consider similar situation. A suit for compensation for non-delivery of goods was filed in the Calcutta High Court on the basis that the head office of the railways in question was located within the jurisdiction of the High Court. A preliminary objection was taken by the railways that after amendment of S. 80 of the - Railways Act-the suit for compensation of that nature could be filed only where the cause of action arose as provided in the amended S. 80 of the Rlys. Act, In other words, it was contended that S. 80 overruled by implication S. 20 C.P.C. and Cl. 12 of the L. P. The learned Judge observed as follows:
'I have no doubt in my mind that the present suit based on the jurisdiction on the person of the defendant is perfectly maintainable. A court within whose jurisdiction the defendant resides or carries on business and a court within whose jurisdiction cause of action arises within the meaning of present S. 80 of the Railways Act, both have concurrent jurisdiction to try suit for compensation for loss or damage of goods by railways.'
In Union of India v. Ganapatrai : AIR1983Cal14 , a Bench of the Calcutta High Court had to consider an identical question whether S. 80 of the Railways Act excluded the jurisdiction conferred on the High Court under Cl. 12 of the L. P. The Division Bench observed as follows (at p. 20) :
'The provisions of the Letters Patent are subject to the legislative powers of the Legislature. Therefore, it is to be seen if the general provision of Clause 12 of the Letters Patent has been affected by the special law, viz. S. 80 of the Railways Act. In our opinion, if there is any conflict between the general law and the special law, then the provisions of special law would prevail. If the two law can be harmoniously gonstrued so as to preserve the right conferred by the two then such construction is to be adopted. However, in case of conflict the special statute should be given preference...... In our view, there is no conflict or inconsistancy between Clause., 12 and S. 80. Cl. 12 congress general jurisdiction upon the High Court to entertain suits.'
In view, of the conflicting decisions on the point we have given our anxious consideration to the question whether S. 80 of the Railways Act has excluded S. 20 C.P.C. and Cl. 12 of the L. P. In other words, whether S. 80 of the Railways Act has repealed S. 20 C.P.C. and Cl. 12 of of the L. P. In so far as suits for compensation against railways are concerned, there is. no express term in the language of S. 80 of the Railways Act, repealing S. 20 and Cl. 12 of the Letters Patent. It is one of the settled principles of interpretation of Statutes that there is a presumption against an implied. repeal. This presumption is based upon the assumption that the Legislature enacts laws with a complete knowledge of all existing laws, pertaining to the same subject matter. Consequently, the failure to add a repealing clause may indicate that the legislature did not intend to repeal existing legislation. The presumption will stand rebutted if the provisions of the new enactment are so inconsistent with the old one that the two cannot stand together. Crawford on Statutory Construction, page 633 has served as follows-
'All laws are presumed to be passed widh deliberation, and with full knowledge of all existing cases on the same subject, it is but reasonable to conclude that the Legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Bowen v. Lease. 5 Will 225. It is a rule, says Sedgwick, that a general statute without negative words will not repeal the particular provisions of a former one, unless, the two Acts are irreconcilably inconsistent. The reason and philosophy of the rule, says the author, is that when the mind of the legislature has been turned to the details of a subject, and it has acted upon it, a subsequent statute in general terms, or treating the subject in a general manner. and not expressly contradicting the original Act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give the latter Act such a construction, in order that its words shall have any meaning at all.'
13. The learned author has further observed at page 624-
'And, as we have already suggested, it is essential that the new statute cover the entire subject matter of the old; otherwise there is no indication of the intent of the Legislature to abrogate the old law. Consequently, the latter enactment will be construed as a continuation of the old one.'
The Supreme Court in Municipal Council, Palai v. T. J. Joseph : 2SCR87 . has observed thus (para 9):
'It is undoubtedly true that the legislature can exercise the power of repeal by implication. But it is an equally well settled principle of law that there is a presumption against an implied repeal. Upon the assumption that the Legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject the failure to add a repealing clause indicates that the intent was not to repeal existing legislation. Of course, this presumption will be rebutted if the provisions of the new Act are so inconsistent with the old ones that the two cannot stand together. In other words, they must be absolutely repugnant or irreconcilable. Otherwise, there can be no implied repeal for the intent of the Legislature to repeal the old enactment is utterly lacking.'
14. Further the Supreme Court has also indicated the test to find out whether there is any repugnancy between the old and the new law. The following are the tests : -
(1) Whether there is direct conflict between the two provisions;
(2) Whether the legislature intended to lay down an exhaustive code in respect of the subject matter repealing the earlier law;
(3) Whether the two laws occupy the same field.
15. In Tansukh Pat v. Filratan Prasad. : 2SCR6 , the Supreme Court has observed thus (Para 9) :
'Repeal. by implication, is not to be easily inferred. It is to be expected that when Parliament was aware of the provisions of Bihar S. 64-A and of Art. 234 of the Constitution, and it intended to repeal Bihar S. 64-A it would have expressly stated so. There is nothing in Central S. 64-A or In any other provision of the Act which expressly states that Bihar S. 64-A is repealed. We are of opinion that the mere fact that Central S. 64-A deals with provisions against nonappealable orders of the Regional Transport Authority is not sufficient to conclude that Parliament intended to repeal Bihar S. 64-A.'
From the above it is seen that repeal by implication is not to be easily inferred. Unless there is a conflict between the two provisions and the two provisions cannot co-exist, repeal by implication cannot be inferred. Further, the litter enactment should be an exhaustive Code in itself in respect of the subject matter. In Our view, S. 80 of the RIys. Act enables the plaintiff to file the suit; firstly. in a Court fieving jurisdiction over the place of delivery of goods for carriage; secondly, in a court having jurisdiction over the place where the destination station lies; and thirdly, in a court having jurisdiction over the place, where the loss, injury, damage, destruction or deterioration occurred. Under S. 20 C.P.C., and under Cl. 12 of the Letters Patent,the plaintiff shall file the suit in the court having jurisdiction over the place where (a) the ceuse of action arose and (b) the defendant resides or carries on business. For suits based on cause of action, S-80 of the Railways Act gives an additional forum to the plaintiff to file his suit. For suits based on the person of the defendant S. 80 of the Rlys. Act says nothing. Therefore, in our view, S. 80 of Rlys. Act cannot be called a complete Code in respect of institution of suits against railways for compensation.
16. Secondly. the Civil P.C., is a general law consolidating and amending the laws relating to the procedure of civil judicature. Part I deals with jurisdiction of courts. S. 9. C.P.C. confers powers on the Court to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. S. 15 C.P.C. provides that suits shall be instituted in the court of the lowest grade competent to try it. Ss. 16, 17, 18 and 20 deal with the place of institution of suits. As already pointed out, S. 20 states that every suit shall be instituted in a court within the local limits of whose jurisdiction the defendant resides or carries on business or the cause of action arose. Thus, the Civil P.C. gives the plaintiff the choice of forum to institute the suit. So also, under cl. 12 of the Letters Patent a person can institute a suit in it place where the defendant resides or carries on business. In other words, a court will get jurisdiction under S. 20 C.P.C. and under Cl. 12 of the L. P. if the defendant resides or carries on business within the local limits of the jurisdiction of that court or the cause of action arises within the local limits of that court. If this is the position. can it be said that S. 80 of the Railways Act. takes away the power of the Court to entertain the suit if the defendant resides or carries on business within the local limits of its jurisdiction. It is equally well settled that ouster of jurisdiction of courts has not to be readily inferred. The existence of jurisdiction in civil courts under the established procedure being .the general rule and qxclusion being an exception, it has to be clearly established in a particular case that there has been such express exclusion or exclusion by necessary implication. This rule is based on the principle that civil courts are courts of general jurisdiction and tire people have a right, unless expressly or impliedly barred, to insist for free access to courts of general jurisdiction. The question-regarding the exclusion of jurisdiction has been very succinctly summarised as follows by Williams J. (Page 404 Principles of Statutory Interpretation, 1975 Edn, by G. P. Singh), in Wolverhampton New Water Works Co v. Hawkesford, 1859-6 CB (N. S.) 336 :
'There are three classes of cases in which a liability might be established, founded upon statute. One is where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law., there, unless the statute contains words which expressly or by necessary implication excludes the common law remedy, the party string has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy, there, the party can only proceed by action at connon lav. But there is a third class, where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the staute must be followed and it is not competent to the party to pursue the course applicable to cases of the second class.
17. In Firm 1. S. Chetty and Sons v. State of Andhra Pradesh, : 50ITR93(SC) , the Supreme Court stated the law thus (at p.324)
'In dealing with the question whether Civil Court's jurisdiction to entertain a suit is barred or not, it is necessary to bear in mind the fact that there is a general presumption that there must be a remedy in the ordinary civil Courts to a citizen claiming that an amount has been recovered from him illegally and that such a remedy can be held to be barred only on very clear and unmistakable indications to the contrary. The exclusion of the jurisdiction of civil Courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to that effect, or leads to a necessary and inevitable implication of that nature. The mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the civil Courts to deal with a case brought before it in respect of some of the matters covered by the said statute.'
18. From the above it is seen that ouster of jurisdiction can be assumed only if the relevant statute expressly provides for it or by necessary implication one can infer ouster of jurisdiction. As already stated S. 80 of the Rlys. Act only provides for an additional forum to the plaintiff to institute suits against railways for compensation. The mere fact that S. 80 of the Railways Act provided for certain Courts in which the plaintiff can institute suit against railways for compensation, it cannot be assumed that S. 80 of the Railways Act ousted the jurisdiction of the civil Courts to entertain suits under the Civil P.C. or under the L. P.
19. Thirdly, the language used in S. 80 of the Rlys. Act is 'a suit for compensation for loss may be instituted in a Court having jurisdiction Ordinarily, the word 'may' is not a word of compulsion. It is an enabling word and it only confers capacity, power or authority and implies a discretion. In Craies on Statute Law, 5th Edn. at page 263, it has been said
'Statutes passed for the purpose of enabling something to be done are usually expressed in permissive language, that is to say, it is enacted that 'it shall be lawful' etc, or that such and such a thing may be done.'
Therefore, when S. 80 of the Rlys. Act uses the word 'may', it only gives a discretion or enables the plaintiff to file a suit in the Courts mentioned S. 80 of the Rlys. Act, and it does not take away the right of the plaintiff to file a suit in accordance with the provisions of the Civil P.C., or the L. P.
20. Thus viewed, in any 'light, we are unable to hold S. 80 of the Rlys. Act excludes S. 210 of tile Civil P.C. and Cl. 12 of the L. P. in so far suits against the railways for compensation are concerned. Therefore, we answer the question referred to us in the negative. Accordingly we overrule Annarnalai Chettiar v. Upion of India, (1982) 94 MLW 447: AIR 1982 NOC 86. Counsel's fee Rs. 750/-.
C.R.P. 2801 of 1983 :
21. The defendant in 0. S. 2812 of 1981 is the petitioner in this civil revision petition.
The plaintiff filed the suit on the file of the City Civil Court Madras for the recovery of a sum of Rs. 68,760, with interest against the defendant, railways. The defendant took an objection that the City Civil Court has no jurisdiction to entertain the suit in view of S. 80 of the Rlys. Act. The objection was overruled. Hence this civil revision petition by the railways.
22. The learned counsel for the petitioner railways contended that S. 80 of the Rlys. Act excluded S. 20 of the Civil P.C., and Cl. 12 of the L. P. and therefore, the suit filed by the plaintiff against the railways for compensation for damage and short delivery cannot be entertained by the City Civil Court, Madras. On the other hand, Mr. Harihara Iyer, learned counsel for the respondent submitted that S. 80 of the Rlys. Act has not excluded either S. 20 C.P.C. or Cl. 12 of the L. P. Therefore, the question for consideration is whether S. 80 of the Rlys. Act has excl5ded S. 20 C.P.C. and Cl. 12 of the L. P. We have answered this question againt the railways in our opinion given in C. S. 148 of 1980- - Hindustan Machine Tools Ltd. by power of attorney agent the 3rd plaintiff and 2 others v. Union of India, owning the Southern Railway represented by its General Manager, Madras 3, and another where we have held that S. 80 of the Rlys. Act does not exclude S. 20 C. P.C. and Cl. 12 of the Letters Patent. Therefore the revision petition fails and will stand dismissed. However, there will be no order as to costs.
C. S. 148 of 1980 and C. R. P. 2801 of 1983 :
23. After the Judgment was pronounced in the above case, an oral prayer was made by learned counsel on behalf of the Railways for leave to appeal to the Supreme Court, under Art. 133(1) of the Constitution. We do not, however, consider that the case involves any substantial question of law of general importance, which, in our opinion, needs to be decided by the Supreme Court. The prayer for certificate is therefore rejected.
24. Order accordingly.