1. This is a suit for recovery of Rs. 55,398/7/- for compensation for non-delivery of two consignments of Indian cotton twist yarn entrusted to the railway for carriage from Wadi Bunder and Ahmedabad, being stations on the G. I. P. Railway and B.B.C.I. Railway, to Raigarh, a station on the Bengal Nagpur Railway.
2. This suit was originally filed in the Court of the 4th Subordinate Judge, Alipore District, 24-Parganas, as Money Suit No. .9 of 1945 on 12th April, 1945.
3. The suit has been transferred to this Court by an order made under Clause 13 of the Letters Patent on 23rd of July, 1945.
4. The matter has now been set down beforeme for trial of a preliminary issue as to whetherthis Court has jurisdiction to entertain and try thesuit. It is agreed by the parties that I shall trythis issue' first.
5. The case of the plaintiff as laid in the plaint is that the plaintiff carries on business in manufacturing and dyeing yarn at 24, Tantipara, Lane, Salkea, in the district of Howrah under the name and style of Calcutta Fast Colour Dye Works and his place of business and factory is at Raigarh in the district of Bilaspur. The Bengal Nagpur Railway Administration is a State Railway and the Railway Administration has its head office and principal place of business at Bengal Nagpur Railway House, Garden Reach, Kidderpore, within the jurisdiction of the Alipore Court. On or about 27th of March, 1944, five bales of yarn were booked from Ahmedabad on the B.B.C.I. Railwayfor carriage to Raigarh station on the Bengal Nagpur Railway and they were deliverable at Raigarh station. On 3-4-1944 another consignment of 64 bales of yarn was booked from Wadi Bunder, Bombay, for carriage to and delivery at Raigarh station. It is alleged that on 13-4-1944, the goods covered by the said consignments were destroyed by fire caused by the misconduct on the part of the Bengal Nagpur Railway Administration and or its servants. The particulars of such misconduct are set out in paragraph 5 of the plaint. It is further alleged that by reason of the destruction of the said goods, the plaintiff has suffered loss and damage which he assesses at Rs. 55,398/7/-. It appears that on or about August 10, 1944, the plaintiff caused a notice in writing to be served on the Agent of the Bengal Nagpur Railway Administration claiming the said sum as compensation. On January 3, 1944, the plaintiff caused a notice under Section 80 of the Code to be served on the Secretary to the Central Government in charge of Railway, Communications and Transport. In paragraph 11 of the plaint it is stated:
'That the cause of action arose on, the 13th day of April 1944 at Raigarh in the Central Provinces and at the head office and principal place of business of the Railway concern which is situate at 12, Garden Reach Road, Kidderpore, within the jurisdiction of this Court, and so the suit is filed in this Court.'
6. The principal contention of Mr. A.C. Mitra, the learned counsel for the plaintiff, is that the defendant having waived its objection to jurisdiction, or in other words, having acquiesced in and submitted to the jurisdiction of the Court is precluded from contending that the Court has no jurisdiction to entertain to try this suit. This point as to waiver or submission to jurisdiction is taken in the Additional Written Statement filed by the plaintiff in reply to the Amended Written Statement filed by the defendant.
7. The facts on which Mr. Mitra places reliance for the purpose of showing that there has been acquiescence in or submission to jurisdiction are briefly as follows:
(i) On 21-5-1945, the defendant caused a vakalatnama to be filed in the Alipore Court and applied for and obtained adjournment of the suit till 20-7-1945, for the purpose of filing its written statement.
(ii) In June 1945, the plaintiff applied to this Court for transfer of the suit under Clause 13 of the Letters Patent and a copy of the plaint was annexed to the petition. The defendant did not file any affidavit in opposition nor did it appear at the hearing to contest the application on the ground that the suit was not competent for want of jurisdiction. The allegations in paragraph 11 of the plaint, according to the learned counsel, were not traversed or controverted by the defendant at that time, and the defendant allowed the order of transfer to be passed without objection. By the order of transfer the Court extended the time to file the written statement of the defendant within six weeks from the date of the arrival of the records of the suit from Alipore to this Court.
(iii) The defendant took advantage of this Order and filed its written statement on January 2, 1946.
(iv) In the written statement there was no specific denial of the allegations in paragraph 11 of the plaint and there was no specific point taken that the Court had no jurisdiction to entertain the suit. It may be noted, however,' in this connection that in paragraph 9 of the original written statement, it was stated as follows:
'The defendant denies that the plaintiff has any cause of action as alleged in paragraph 11 of the plaint and submits that the suit should be dismissed with costs'.
(v) Not only did the defendant not take up the point that the Court had no jurisdiction to entertain the suit, but by its written statement it pleaded to the merits of the case. The defendant filed its affidavit of documents and also obtained an order upon the plaintiff for filing of his affidavit of documents. The defendant has also given inspection of the documents disclosed by him and has taken inspection of the plaintiff's documents and has taken other necessary steps in the suit. Costs have mounted up to extensive proportions.
(vi) The suit has appeared in the list for hearing on several occasions and adjournments were taken for postponement of the hearing.
(vii) The suit was specifically fixed for hearing by consent of parties on two occasions at least, on the ground that witnesses were coming from various places, and yet no indication was given that the defendant objected to the jurisdiction of the Court.
(viii) After the suit came into the list as a specially fixed suit in May 1954, the defendant took adjournment of the suit on the ground of the learned counsel's indisposition, and on 18-5-1954, the defendant came forward with an application for amendment of the written statement and the question of jurisdiction was raised for the first time. In other words, after about 8 years and 4 months, of the filing of the original written statement, the point was raised specifically for the first time by the defendant, in its pleading.
(ix) In making the order of amendment, the Court directed the defendant to pay certain costs to the plaintiff, and the defendant has paid certain costs pursuant to such order. It is submitted that these are some of the salient facts which show that the defendant waived its objection to jurisdiction and submitted to the jurisdiction of the Court, and hence it is precluded from agitating this question at this stage.
8. Now the question is whether there can be waiver of this objection to jurisdiction, in law. It is admitted that Section 20 Civil P. C. is applicable to the present case inasmuch as the suit was one which was instituted at Alipore Court. Mr. A.C. Mitra, the learned counsel for the plaintiff has drawn my attention to Clause (b) of Section 20 and particularly to the words 'acquiesce in such institution', and he submits that this clause shows that by reason of acquiescence a Court becomes competent to entertain a suit although all the defendants do not reside or carry on business within the jurisdiction of a particular Court. It may be pointed out, however, that this clause cannot have any application to the facts and circumstances of this case, because in the present suit we are concerned with the case of a single defendant and not a number of defendants. The clause which is applicable to the facts and circumstances of this case is Clause (a) and Clause (c) of Section 20 of the Code. Now, if Section 20 of the Code is applicable, then it is clear from the provisions of Section 21 of the Code, that non-compliance with the provisions of Sections 15 to 20 of the Code (which deal with the place of suing) is not fatal to the jurisdiction of the Court, nor does it render a decree passed by a Court of competent jurisdiction a mere nullity.
9. It has been held by the Supreme Court in the case of -- 'Kiran Singh v. Chaman Paswan', : 1SCR117 , that mere defect in the territorial and pecuniary jurisdiction such as can be cured by Section 21 of the Code or Section 11 of the Suits Valuation Act, does not make the decree a nullity. At page 342 the Supreme Court made the following observations:
'With reference to the objections relating to territorial jurisdiction Section 21, C.P.C., enacts that no objection to the place of suing should he allowed by the appellate or revisional Court unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11, Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99, C.P.C. and Section 11, Suits Valuation Act is the same, namely, when a case had been tried by a Court on the merits & judgment rendered, it should not be liable to be reversed purely on technical grounds unless it had resulted in failure of justice and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by the appellate Court unless there has been prejudice on the merits The contention of the appellants therefore that the decree and the judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained.'
10. In the case of -- 'Ledgard v. Bull', 13 Ind App 134 (B), the 'Privy Council assumes that when there is no lack of inherent jurisdiction in the Court, the conduct of the defendant can be looked into to find out whether he has waived his objection or had submitted to the jurisdiction of the Court. That was a case in which by virtue of Section 22 of Act 15 of 1859 a district court had jurisdiction to entertain suits with regard to Patents but the suit was in fact filed in the Court of Subordinate Judge and thereafter by an order of transfer the suit was removed to the file of the District Judge concerned. The defendant took up the plea that the suit as instituted was an incompetent suit inasmuch as the Subordinate Judge had no jurisdiction to entertain the suit.
11. Lord Watson in delivering the judgment of the Judicial Committee observed as follows:'When the Judge has no inherent jurisdiction over the subject matter of a suit the parties cannot by their mutual consent convert it into a proper judicial process, although they may constitute the Judge their arbiter, and be bound by his decision on the merits when these are submitted to him. But there are numerous authorities which establish that when in a cause which the Judge is competent to try, the parties without objection join issues and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities in the initial procedure which if objected to at the time would have led to the dismissal of the suit.'
12. The Privy Council thereafter went into consideration of the question whether upon the facts of the case it could be inferred that the defendant did in point of fact waive all objections to the competency of the suit and engage that the case should be tried on its merits by the District Judge. (page 145). The Privy Council came to the conclusion that there was no such waiver in the facts of that case.
13. It is therefore clear from this decision of the Privy Council that where there is no inherent lack of jurisdiction in the Court, the defendant may by his conduct waive the objection to the jurisdiction of the Court.
14. It is also clear from the decision of the Supreme Court to which I have already referred and also from the wordings of Section 21, Civil P. C., that a Court passing a decree in a suit which does not comply with the provisions of Section 20 of the Code, does not suffer from any inherent lack of jurisdiction by reason of the fact that the provisions of Section 20 have not been complied with, because if it were so theft the decree passed in such a suit: would have been a nullity.
15. Mr. B.C. Mitra the learned counsel for the defendant submitted that Section 21 of the Code postulates that an objection to jurisdiction can be taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and as he is raising the issue at the hearing, it cannot be said that the conduct of the defendant has been such as to amount to waiver of objection to jurisdiction or submission to jurisdiction. I am unable to accede to this contention. There can be no doubt that the defendant has not raised this objection 'at the earliest possible opportunity'. It is clear that this objection was not raised at the time or before the settlement of issues as contemplated by Section 21 of the Code.
Order 14 Rule 1 of the Code provides for settlement of issues and under Sub-rule 5 the issues are to be framed 'at the first hearing of the suit'. The meaning of the expression 'at the first hearing of the suit' has been considered by this Court in the case of -- 'National Insurance Co. Ltd. v. Dhirendra : AIR1938Cal287 and it is clear from that decision that the expression has reference to a time or a stage which is anterior to the day when the case is taken up for trial. The meaning of the expression as appearing in the different orders and rules of the Code has been pointed out in this decision. It is thus clear that the defendant has not raised the question as to the jurisdiction at the proper stage contemplated by Section 21 of the Code. There is also provision for settlement of issues in Chapter XIV Rules 6 to 8 of the Original Side Rules of this Court which also indicates that settlement of issues takes place at a stage much prior to the date of the final hearing of the suit.
16. Now reference may be made to certain decisions of the various High Courts to show the circumstances under which the defendant may be said to have submitted to the jurisdiction or waived its objection to jurisdiction. Some of the cases are cases against non-resident foreigners and foreign rulers, but the principle enunciated in these cases is in my view equally applicable to the facts of this case. Reference may be made to the cases of --'Chandulal v. Awad', 21 Bom 351 (D) at p. 373 (bot.) to 374 (whole page) and also cases reported in -- 'Maharaj Bahadur of Rewa v. Siva Saran Lal', AIR 1921 Pat 23 (E); Subramania Aiyar v. Annasami Ayer', AIR 1948 Mad 203 (F); -- 'Ramanlal v. Ramgopal', AIR 1954 Raj 135 at p. 137 (G).
17. It may however be pointed but that the Privy Council in the ,case of -- 'Gaekwar of Baroda State Railway v. Hafiz Habibul Haq has held that the privilege conferred by Ss. 86 and 87 of the Code being a statutory privilege and the sections being imperative in character and being, based on public policy, cannot be waived and so the decisions of the Bombay and Patna High Courts to which I have referred may be said to have been overruled in so far as they held that the privilege under Sections 86 and 87 of the Code could be waived. It may be noted however that I have referred to the said cases only for the purpose of showing under what circumstances a waiver may take place.
18. Mr. B. C. Mittra submitted that in cases of non-resident foreigners only, there may be cases of waiver or submission to jurisdiction but not in other cases. But, the case of -- -'Ledgard v. Bull (B)' was not such a case and yet the Privy Council pointed out that there could in certain circumstances be waiver, of objection to jurisdiction.
'(19) Mr. B. C. Mittra has drawn my attention to cases reported in -- 'Ram Lal Hargopal v. Kisanchandra', AIR 1924 PC 95 at pp. 100-101 (I); --'Maha Prasad Singh v. Ramani Mohan Singh', AIR 1914 PC 140 at p. 143 (J); -- 'Barasat Basirhat Light Rly. Co. Ltd. v. Dist. Board, 24-Parganas', AIR 1946 Cal 23 at p. 33 (K) and -- 'Vellayan Chettiar v. Govt. of the Provinces of Madras', AIR 1947 PC 197 at pp. 199-200 (L). But these were all cases where there was inherent lack of jurisdiction in the Courts entertaining the matters in question and consequently it was held that the question of jurisdiction could be agitated even before the Privy Council and in course of argument at the final hearing of the suit in the Court of first instance. These were not cases under Section 20 or Section 21, Civil P. C.
20. There are cases of the Calcutta High Court and other High Courts which also have held that there may be waiver of objection to jurisdiction in cases instituted under Clause 12, Letters Patent. See -- 'A. J. King v. Secretary of State', 35 Cal 394 (M); -- 'Saraswati v. Biraj Mohini', 17 Cal WN 512 (N); -- 'Shama Kanta v. Kusum Kumari', AIR1917 Cal 805 (2) (O); -- 'Mohamed Siddiq v.Mohamed Ahmed', AIR 1929 Rang 61 (P). But it is doubtful whether these cases are now good law in view of the later decisions of this Court which have held that leave under Clause 12, Letters Patent is the very foundation of jurisdiction, and if that be so, the question of waiver cannot arise at all. In cases however which are governed by Section 20, Civil P. C., and in which therefore Section 21 is attracted, different considerations will, in my view, arise, and the defendant may be barred by reason of estoppel or waiver, from questioning the jurisdiction at the final hearing of the case, or before the appellate Court.
21. I hold that the defendant is in the facts and circumstances of this case, precluded from agitating the question of jurisdiction after having waived his I objection to such jurisdiction and alter submitting to it. It will be inequitable to allow the defendant to raise the question of jurisdiction now.
22. It has also been contended by Mr. A. C. Mitra the learned counsel for the plaintiff with reference to the wordings of Clause 13, Letters Patent that Clause 13 presupposes that a suit which is sought to be removed or transferred to this Court from a Court subordinate to the High Court was a suit which had been filed in a Court which had jurisdiction to try such suit, and further it is a condition precedent to the exercise of the power of transfer under Clause 13, Letters Patent that the Court in which the suit is originally filed has jurisdiction to entertain and try such suit. So when the order for transfer of the present suit was made by this Court such order involved an adjudication or finding that the Alipore Court had jurisdiction to entertain the suit. Consequently by the operation. of the principle of Res Judicata or estoppel by judgment the defendant is precluded from agitating the question of jurisdiction again at this stage, Mr. Mitra referred to -- 'Dwijendra Narayan v. Jogeschandra De : AIR1924Cal600 ; -- 'Girish Chandra v. Purna Chandra : AIR1944Cal53 ; -- 'Hariram v. Rameswar Lal', 49 Cal WN 354 (S); -- 'Amalabala Desi v. Sarat Kumari Desi : AIR1932Cal380 and also drew my attention to Section 24 of the Code. I am unable to accept this contention of Mr. Mitra as correct.
23. In -- 'Annie Beasant v. Narayaniah', AIR 1914 PC 41 at p. 43 (U) the Privy Council allowed the question of jurisdiction to be raised before it even after an order for transfer under Clause 13, Letters Patent had been made in that case by the lower Court. This indicates that the question of jurisdiction was not Res Judicata by reason of the fact that an order for transfer had been made by the lower Court.
24. In the case of -- 'Asrumati Devi v. Rupendra Deb', : 4SCR1159 the Supreme Court made certain observations on the scope of an application under Clause 13, Letters Patent. The relevant passage may be usefully referred to. The Supreme Court observed as follows:
'The question that requires determination in an application under Clause 13, Letters Patent is whether a particular suit should be removed from any Court which is subject to the superintendence of the High Court and tried and determined by the latter as a Court of extraordinary original jurisdiction.'
25. Then later on the following observation occurs:
'The order in the present case neither affects the merits of controversy between the parties in the suit itself nor does it terminate or dispose of the suit on any ground...........On the other hand an order for transfer under Clause 13, Letters Patent is in the first place not at all an order made by the Court in which the suit is pending. In the second place the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another Court, the proceedings in the latter to be taken only from the stage at which they were left in the Court in which the suit was originally filed.' (page 13 of the judgment).
26. The Supreme Court held that an order of transfer under Clause 13 does not involve any adjudication. It is not a 'judgment' under Clause 15, Letters Patent and is not appealable.
27. In the circumstances I fail to see how can an order of transfer under Clause 13 be said to adjudicate on the question of jurisdiction of the Court in which the suit was filed, or to operate as Res Judicata as contended for by Mr. Mitra.
28. Mr. A. C. Mitra also submitted that at the time the cause of action against the Bengal Nagpur Railway arose, the control or administration of the Railway had not been taken up by the Government. Such control and management was taken up on 1-10-1944 under an arrangement, inasmuch as the B. N. Railway went into liquidation. So the Government was not really the owner of the Railway but was a sort of Assignee of the rights and liabilities of the Railway and so the principle that a Government does not carry on business at the headquarters of the Railway, cannot apply to the present case. Mr. Mitra submits that the Railway Company which was undoubtedly carrying on business at its head office at Kidderpore, could be sued in the Alipore Court before the 1-10-1944; and if such a suit had been filed before that date and the Government got itself substituted under Act 14 of 1946 (The Railway Companies (Substitution of Parties in Civil Proceedings) Act 1946), the Government could not possibly take up the point that the suit was not properly instituted at Alipore or that the Alipore Court had no jurisdiction. That being the position, the Government cannot object to the jurisdiction simply because the suit is filed at a time when it has taken over the rights and liabilities of the Railway.
I am unable to accept this contention of Mr. Mitra as correct. In the opening paragraph of the plaint it is stated that the Bengal Nagpur Railway is a State Railway. If a Government is sought to be sued in any court, it has to be sued in the Court within whose jurisdiction either the whole or part of the cause of action has arisen. It cannot be sued on the basis that it carries on business in a particular place within the jurisdiction of a particular court or dwells within such jurisdiction. So the considerations, as to what would have been the position in law, if the suit had been originally filed against the Bengal Nagpur Railway and the Government that got itself substituted under the provisions of Act 14 of 1946 are irrelevant considerations. So if there had been no waiver, the present case would be governed by the principle of the decisions like -- 'Rodricks v. Secy, of State', 40 Cal 308 (W); -- 'Dominion of India v. R.C.K.C. Nath and Co.', : AIR1950Cal207 ; -- 'Calcutta Motor Cycle Co. v. Union of India', : AIR1953Cal1 and --'Bata Shoe Co., Ltd. v. Union of India', : AIR1954Bom129 .
29. A large amount of costs has been incurred by both parties in making this case ready for hearing, and the parties have applied for and obtained special dates for hearing from time to time for bringing their witnesses to this Court. I do not see that either of the parties will be prejudiced in any way if this suit which is ripe for hearing is proceeded with and disposed of by this Court. It is immaterial now whether this Court or the Raigarh Court deals with the claim of the plaintiff. I think that it will be unreasonable and unjust to drive the plaintiff to file a fresh suit now before the Raigarh Court or any other Court and incur costs de novo in that suit. The plaintiff's counsel states that the present suit was filed in the Alipore Court just before the expiry of the period of limitation and if the plaintiff is driven to file a suit in the Raigarh Court or any other Court, he has, assuming that he can take advantage of Section 14, Limitation Act, only a day or so at his disposal within which such suit is to be filed, for avoiding the bar of limitation, and thus there is considerable risk of his filing a new suit now in any other Court. It appears to me upon a consideration of all the facts and circumstances of this case that, the defendant's conduct amounts to waiver of objection to jurisdiction and submission to the jurisdiction of the Alipore Court and of this court, and it is estopped from raising the question of jurisdiction or objecting to the place of suing now.
30. As it is a case of divided success, each party will bear and pay his or its own costs of the hearing of this preliminary Issue before me. Certified for two counsel.