1. These appeals are directed against an order of remand made in a suit for recovery of compensation for short delivery of goods, The first defendant was the Secretary of State for India in Council representing the Eastern Bengal State Railway and the second defendant was the agent of the Bengal and North Western Railway Company. The Subordinate Judge dismissed the claim against both the defendants. As regards the first defendant he held that the loss was not due to the neglect of or theft by the servants of the Eastern Bengal State Railway. As regards the second defendant, he held on the authority of the decisions in Bam Dass Sein v. Cecil Ekphenton 10 W. B. 366., Nubeen Chunder Paul v. Cecil Stephenson 15 W. R. 534., Campbell v, Jackson, Manager of the Jokai Assam. Tea Co. Limited 12 C. 41 : 6 Ind. Dec. (N. S.) 28., and India General S. N. R, Co. v. Lal Mohan Saha 31 Ind, Cas, 35 : 32 C, L, J, 241 : 43 C, 441,, that the Agent could not be sued as such and that the suit as against him had been improperly framed. The plaintiffs appealed against the decree of dismissal made by the Subordinate Judge. As regards the first defendant, the District Judge held in concurrence with the Subordinate Judge that the plaintiffs had failed to prove negligence on the part of the Eastern Bengal State Railway. As regards the second defendant, the District Judge held, as the Subordinate Judge had done, that the suit could not be maintained against him. In this view, the District Judge should, prima facto, have confirmed the decree of dismissal made by the primary Court. But he proceeded instead, on the petition of the plaintiffs, to make the B. N. W. Railway Co, a party defendant in place of the Agent and to remand the case for trial de novo Separate appeals have been preferred against this order by the two defendants.
2. On behalf of the Agent, the order has been attacked on the ground that the Company should not have been made a party. The plaintiffs have taken a preliminary objection on the ground that as the name of the Agent has been ordered to be removed from the record, he is not competent to appeal. This objection is manifestly untenable. The Agent was a party to the suit and was allowed his costs by the Trial Court when the suit was dismissed against him. The order of the District Judge deprives him of the costs allowed by the First Court and does not award him coste in the lower Appellate Court. He has clearly been prejudiced by the order of the District Judge and is competent to Question its propriety by way of appeal even though it be conceded that he is not competent to question the propriety of the order in go far as it directs the Company as such to be made a party. It baa not been disputed before us and in face of the authorities mentioned by the Subordinate Judge it cannot be seriously disputed that the suit as framed is not tenable against the Agent. We are subordinate of opinion that in the appeal preferred by the Agent (A. A. O. No. 258 of 1920) the proper order to make is to allow the appeal and to direct that the suit as against the Agent be dismissed with costs in all the Court.
3. On behalf of the Secretary of State the order of the District Judge has been assailed on the ground that in view of the concurrent finding of two Courts that there has been no negligence on the part of the Eastern Bengal State Railway, the suit as against him should have been dismissed, and that even if the suit should be tried do novo, against the newly added defendant B, N. W. Railway Co., he should not be put to further expense in connection with proceedings which cannot possibly effect him. There is plainly no answer to this argument. We are consequently of opinion that in the appeal preferred by the Secretary of State (A. A. 0. No. 360 of 1920) the proper order to make is to allow the appeal and to direct that the suit as against the Secretary of State be dig. missed with costs in ail the Courts.
4. We assess the hearing fee in this Court at two gold mohurs in each appeal.
5. The result of our decision will be that the only residue of the order of the District Judge which will remain operative will be the order that the B. N. W. Railway Co, be made a party defendant and that the suit be tried against them de novo by the primary Court. This order, it may be noted, was made by the District Judge without notice to this B. N. W. Railway Co., and we need not consider at this stage what objections the Company may urge if and when plaintiffs proceed with the suit as against them.