Patna High Court
Surajmal Jain vs Union Of India (Uoi) on 16 March, 1956
Equivalent citations: AIR 1956 PATNA 478
JUDGMENT Sinha, J.
1. The plaintiff is the appellant. He had brought the suit for recovery of Rs. 3,270-5-0 (sic) made up of Rs. 3,038-13-3, being the price of 270 bags of salt, Rs. 167-5-6, being the difference in the rate of salt at the time of booking and the rate at the time of the suit and Rs. 64-1-0, being the loss of profit by way of commission. The claim was based on non-delivery of the goods to the plaintiff.
2. The plaintiff's case is that he is the owner of a private firm carrying on business at Sariya, police station Bagodar, district Hazaribagh in the name and style of Surajmal Mahabir Prasad. On 11-8-1947 the consignment in question, containing 270 bags of salt, was booked at Lunli (Lanndhi) railway station in West Punjab covered by forwarding note No. 468 of that date, and booked in Wagon No. 31709 B.B. from the said station on the North Western Railway for Hazaribagh Road on the then East Indian Railway via Gaziabad.
The consignment bore invoice No. 8 covered by R/R No. 638843 in Risk Note Form 'A'. The plaintiff claims that he is the holder in due course of the railway receipt and otherwise beneficially entitled to the goods consigned. The consignment was not delivered to the plaintiff. It is said that ever since 3-11-1947, the plaintiff had been sending claim to the railway authorities, but without any effect.
The plaintiff sent notices under Section 80, Civil P. C. on 30-1-1948, notices, Exts. 4 (b), 4 (c) & 4 (d) were sent; Ex. 4(b) was sent to the General Manager East Indian Railway, Calcutta; Ex. 4 (c) was sent to the General Manager or Administration Officer, Eastern Punjab Railway (late North Western Railway) Delhi; and Ex. 4 (d) wss sent to the Secretary to the Governor-General in Council (Railway Department) the Dominion of India, New Delhi.
All these notices were sent on behalf of the firm Surajmal Mahabir Prasad, the consignee under the railway receipt, but they were signed by Surajmal Jain of Katwa, district Burdwan, in West Bengal, and the claim was made to the tune of Rs. 3,526-14-0. It has to be remembered that Section 80, Civil P. C. was amended and the amendment took effect from February 1948 (Act 6 of 1948), which enjoined that notices had to be given to "in the case of a suit against the Central GOVernment where it relates to a railway, the General Manager of that railway".
After the amendment another notice Ex. 4(a) was given to the General Manager East Indian Railway enclosing therewith a copy of the draft plaint. This notice was signed by Surajmai Jain on behalf of the firm Surajmai Mahabir Prasad of Katwa. The Dominion of India, as owner on behalf of the East India Railway, filed a written statement on 5-4-1949 and the defence taken was that the suit was barred by limitation and was not maintainable.
It was also stated that, as the contract was entered into between the plaintiff and the North Western Railway, the plaintiff should have claimed compensation from the North Western Railway authorities. Objection was also taken regarding the service of notices under Section 77, Indian Railways Act and Section 80, Civil P. C., and it was alleged that these notices were invalid, improper and illegal. On 15-12-1949 an additional written statement was filed by the Dominion of India contending that the consignment was loaded and despatched from Landhi station of the North Western Railway in Pakistan, a foreign State, in Wagon No. 31709 and that it never reached the destination nor was it received by the Eastern Punjab or the East Indian Railway administration.
The defendant alleged that they believed that the wagon conveying the consignment in suit fell a prey to the violence and frenzy of the riotous mob and subjected to loot and destruction and lost during the last serious disturbances, which broke out in the Punjab in 1947, and these circumstances being beyond the control of the railway administration, the defendant could not be held responsible for the loss.
3. A separate written statement was filed on behalf of the Dominion of India representing the Eastern Punjab Railway, but the allegations contained in that written statement are similar to those in the other written statement.
4. As will appear from the findings arrived at by the Courts below, the defences raised were simply extravagant and false. . I had thought that police bodies and specially the public utility services, like the railways should act fairly at all times, and, unlike ordinary litigants they must adhere to truth despite the consequences so that they do not shake the public confidence reposed in them.
The lawyers engaged on behalf of such public bodies should realise the position of their clients and refrain from raising defences which are found to be false even upon the evidence in the possession of such public bodies. I like to quote some of the observations made by the Courts below to show how extravagant were the defences made by the defendants having absolutely no relation to truth. The learned Munsif has observed:
"The case Of the defendants in the written statement is that neither E.I.R. nor the E.P. Ey: over received this wagon from the N. W. R. and it was believed that this wagon fell a prey to the mob violence and frenzy of the Punjab riots of the year 1947, If it was really, so, the matter would have ended there if the Railways would have proved that in fact this wagon was looted or was not received from the N.W.F. Unfortunately however after the Railways began evidence the existence of some telegrams came to light which were marked as exhibits. On behalf of the plaintiffs (Vide Ex. 3 series) and these telegrams gp to show that in fact the suit consignment did arrive and was duly received by the Eastern Punjab Ry. The whole complexion of the case was therefore changed thereby and the defence of the Ry. became that in fact the wagon was received with incorrect label and that the label showed that the wagon was meant for Hazrat Nizamuddin Ry. station on the E. P. Ry. near Delhi and that the wagon was diverted to that station. What happened to that wagon however was not disclosed."
5. Referring to D. W. 1 Brijlal Sharma, Trains Clerk of Ferozepur, it was said thus : "This witness in keeping with the written statement started giving evidence that this wagon was not received till 20-8-47 and he produced the vehicle summary books. It was however in his cross-examination that Ex. 3 the telegram was proved and it was discovered that the contents of Wagon No. 31709 B.B. were sent from Gaziabad by train No. 982 on 11-10-47 (Via) Tundla." It was further observed:--
"As I have stated above the case in evidence is diametrically opposite to the case that was set up in the written statement. As a matter of fact even being in possession of the telegrams (Ex. 3 series), the defendants laid evidence to show that they did not receive the consignment from the N.W.R. As ill luck would have it, by accident the telegrams were discovered and then the Rys. made out a case that since the label in the wagon bore the mark 'IND' to NZM' they had no other alternative than to send the wagon to Hazrat Nizamuddin Station.
The question naturally arises as to whether this wrong destination was written at Landdhi by the staff of the N.W.R. or the staff of the Indian Rys. made his mistake and this mistake was carried out. The answer would have been found by the production of the label and the seal as all the the witnesses admitted that the seals and rivets of this wagon were intact. The defendants however have not produced the original label containing the seal which admittedly is in possession of the defendants. The defendants also feel shy in producing evidence of Hazrat Nizamuddin nor do they disclose as to what happened to that wagon.
It is obvious that there is something in the label which if produced would never support the case of the defendants. I regret to say that the attitude taken by the railways which are after all public bodies is deplorable. When the existence of the telegram was known it was incumbent upon the defendants to admit that they did receive the wagon in suit. In spite of having the telegrams in their possession the defendants choose to lead evidence to show that the wagon was never received. The defendant is not coming with clear hands. Adverse inference therefore, must be drawn against defendants. On the other hand, we find as deposed to by D. W. 1 the wagon did arrive at Gaziabad according to the route that was prescribed in the Ry. receipt."
The code word for Hazaribagh Road is 'HZD' while that of Hazrat Nizamuddin is 'NZM' and the Court says:
"The circumstances go to show that Ry. staff are guilty of negligence inasmuch as they did not care either to read the label properly or they assumed Hazrat Nizamuddin for Hazaribagh Road perhaps because .both the stations start with the letter H".
and then again, "This story that the name of the destination was in code stands discredited in view of the admission of D. W. 5 and in any case it does not fit in with the case of the defendant as the all important letter H does not occur in the Code name Hazrat Nizamuddin."
The trial Court upon these observations, held that the railways were guilty of negligence and misconduct on the part of their servants. It was further held that the notice under Section 77 Indian Railways Act was not necessary as the present case was a case of non-delivery, and further that the notice under Section 80, of Civil P. C. was a proper notice. In view of these findings, the trial Court decreed the suit except for the sum of Rs. 167-5-6 being the difference, of rate at the time of booking and the rate at the time of the suit.
6. Against the decision of the trial Court, the respondent to this Court filed an appeal, and the point taken was whether there was any mistake on the part of the employees of the North Western Railway in labelling the wagon in question, and whether it was due to that mistake that the said bags of salt were not delivered at Hazaribagh Road. The other points related to the validity of the notices under Section 77, Indian Railways Act and Section 80, Civil P. C. and whether the plaintiffs had a right to maintain the suit.
7. It has been seen how the defendant respondent changed its case from time to time. The ultimate defence taken was that, because of the mistake in the label made by the employees of the North Western Railway, the wagon had been diverted to Hazrat Nizamuddin railway station, and as such, the defendant was not liable for the loss. This defence also was negatived by the first Court, as already mentioned, as also by the appellate Court and it was remarked by the appellate Court that "the best evidence on the point was label and the seal on the wagon which were not produced although as stated by D. W. 3 they must be with the defendant Railways."
Dealing with the defendant's case that the Code initials were mentioned in the label of the wagon, the appellate Court remarked as follows:
"These statements of the employees of the defendant Railway Administration themselves clearly show that the ordinary practice is to write full name of the station of destination in the label attached to the wagon .... I am not satisfied that any mistake in labelling the wagon was committed by the employees of N. W. Railway and that by reason of that mistake the employees of the defendant Railway Administration were misled and did not divert the wagon to its proper destination.
Again it is worthy of note in this connection that the aforesaid plea of the defendant Railway is manifestly an afterthought. This plea was not taken in any way of the written statements filed by the two Railway Administrations. On the contrary, the plea taken in both of them was that the wagon in question here did not cross the Indian border at all and was subjected to mob fury and loot in the disturbances which broke out in the Punjab in 1947.
Indeed in support of this contention they examined one witness D. W. 1 to. show that there was no mention of the arrival of the consignment in question here at Firozepur Railway Station, which" is the next Railway Station on this side of the Pakistan border. In view of these clear statements of the defendant Railways in the written statements filed by them and of this witness it does not lie with them to contend that they did actually receive the wagon in question here but diverted it to another station on account of mistake in the labelling of the wagon which is obviously an entirely new case."
8. The Court finally held that the wagon in question did not arrive at Hazaribagh Road on account of the mistake or negligence of the employees of the defendant railway administration.
9. In regard to the second point taken before the lower appellate Court it was held that notice under Section 77, Indian Railways Act was not necessary. But so far as the notice under Section 80, Civil P. C. was concerned it was held that the notice served was defective and, as such, invalid in view of several incorrect statements made in the notice.
The mistakes were (1) three of the notices were sent on behalf of the firm Surajmal Mahabir Prasad but the plaint in the suit has been filed by Surajmal in his personal capacity, (2) in all these notices the place of residence of the applicant was indicated as Katwa, in the district of Burdwan, but in the plaint it is stated as Sariya in the district Hazaribagh, (3) the total claim in these notices was for Rs. 3,526-14-0, but in the plaint it was Rs. 3,270-0-0 (sic) and (4). in the fourth notice the plaintiff has described himself as Surajmull Mahabir Prasad of Katwa, whereas in the plaint he was described as being resident of Sariya.
On account of these discrepancies in the notices and the plaint, the Court below held that the notice under Section 80, Civil P. C. though served was not in accordance with law.
10. There is no doubt that Section 80, Civil P. C., is "express, explicit and mandatory and it admits of no implications or exceptions", Bhagchand Dagdusa v. Secy. of State, 1927 PC 176 (AIR V 14) (A), but the sufficiency of the contents of such notice must naturally depend upon the facts of each par-f ticular case, Under Section 80, the notice has to state the cause of action, the name, the description and the place of residence of the plaintiffs and the relief which he claims. The question is whether in the present case there has been sufficient compliance with the aforesaid requirements of Section 80. In para. 3 of the piaint, it was stated that the plaintiff laid claim through registered posts before the Chief Commercial Manager, East Indian Railway and the General Manager or the Administrative Officer, Eastern Punjab Railway, but, in spite of it, the claim was not settled.
It is further stated that the Chief Commercial Manager, East Indian Railway, by his letter No. El/1301048, dated Calcutta 11-2-1948, had informed the plaintiff about telegraphic enquiries being made as to the non-delivery with a request to send to the latter the original bijak and a true copy of the railway receipt, and that the same was complied with by the plaintiff.
It is also stated that the plaintiff sent a notice under Section 80, Civil P. C., to the General Manager, East Indian Railway on 7-8-1948 of an intended suit; and that, in spite of the service of such a notice, the plaintiff's claim had not been paid. In answer to the allegations made in paragraph 3 of the plaint, Paragraph 9 of the written. statement, filed on 5-4-1949, states as follows:
"That para 3 of the plaint is not admitted and the plaintiff is put to strict proof thereof. It is submitted that the suit is barred by limitation and the correspondence referred to in para 3 of the plaint cannot extend the period of limitation."
There is no specific denial of the fact that the notice alleged in para, 3 of the plaint had not been served, and that the contents of the notice were otherwise insufficient or misleading.
In my opinion, the contents of the notice, as mentioned in Section 80, Civil P. C., are needed to give to the Government or the authority concerned sufficient time and sufficient description of the plaintiff to enable the latter to settle up the dispute without reference to Court, In the present case, we find that the notices, namely, Ex. 4 (b), 4(c) and 4(d), each dated 30-1-1948, mention the subject as "Re, Landhi to Hazaribagh Road No. 8 R/R No. 638843 dated 11-8-1947--270 bags salt." The sender of the notices was the plaintiff, who signed "for Surajmull Mahabir Prasad", and the address of the sender given was 'as "Surajmull Mahabir Prasad C/o Purushottam Agarwala P. O. Katwa (Burdwan)", and the total claim mentioned was, as already, indicated, Rs. 3,526-14-0.
These notices, therefore, gave all the details of the consignment non-delivered when they mention the invoice number and the railway receipt number with date and the quantity of salt bags. They also gave in plain language the name of the firm to which the consignment had to be delivered.
It is true there is a mistake in the amount of the claim. When we come to the notice Ex. 4(a), dated 7-8-1948, we find that this notice was given to the General Manager East Indian Railway by Surajmal Jain, the present plaintiff, on behalf of Surajmull Mahabir Prasad of Katwa, and there is a manuscript endorsement to the following effect :
"I, Surajmull Jain carrying on business in name and style of Surajmull Mahabir Prasad of Sariya P. S. Bagodar Chouki & D. T. Hazaribagh."
To this notice a copy of the proposed plaint was also attached.
Here again, reference is made to the letter received from the Chief Commercial Manager, East Indian Railway (letter No. E1/1301/48, dated 11-2-1948), and further that on 19-5-1948.
"the C. C. M. E. I. Ry. had sent informa tions about non-delivery being still under enquiry and lastly on 26-6-48 the plaintiff had been inform ed that E. I. Ry. Administration is in communica tion with N. W. Ry Administration who it is alleg ed have not so far proved delivery of the consign ment to E. I. Ry."
The suit was to be valued at Rs. 3,526-14-0. This notice is after the amendment of Section 80, Civil P. C., according to which the notice had to be given to the General Manager of the railway concerned. So, this notice was properly addressed to the General Manager, East Indian Railway.
Judging from the purpose of such notices under Section 80, Civil P. C., I am of the view that Ex. 4 (a) sufficiently complied with the requirements of that section, though it is true that there is a little mistake about the amount claimed, which is a little higher than the amount for which the present suit has been filed. I am further of the opinion that the authorities concerned could not have been misled by the notice in question, and that is also supported by the fact that, before the suit was filed, the railway authorities had correspondence with the present plaintiff.
Stress was laid by Mr. Bose, appearing on behalf of the respondent, that the notice, is on behalf of the firm while the suit has been brought by the plaintiff in his individual capacity. In this connection, it must not be forgotten that the plaintiff had all along been writing letters and sending notices to the railway authorities on behalf of the firm of which, as he says in the plaint, he is the owner.
In my opinion, that makes no difference so far as the sufficiency of the notice under Section 80, Civil P. C., is concerned: -- 'Governor-General in Council v. Amilal', 1947 Pat 81 (AIR V 34) (B). I would, therefore, hold that the notice Ex. 4 (a), dated 7-8-1948, was in substantial compliance with the provisions of Section 80, Civil P. C., and that it left the railway authorities in no doubt as to the consignment non-delivered, the claimant and the nature of the claim.
A notice under Section 80, Civil P. C., is sufficient "if it substantially fulfils its object in informing. the Government or the public officer of the nature of the suit to be filed": -- 'Bhupal Chandra Dutt v. Governor-General of India in Council', 52 Cal WN 808 (C). The only other point that remains to be considered is whether the suit is maintainable.
11. The learned Judge has held that the suit is not maintainable inasmuch as the suit has been brought by Surajmull Jain in his own behalf and not on behalf of the firm Surajmull Mahabir Prasad. He has further found that, even upon the admission of the plaintiff in his evidence, the firm was a joint family business of himself, his father and brother, and that all of them were jointly interested in it; and, therefore, according to the learned Judge, the plaintiff has absolutely no right to file the suit without impleading his father and brother, who were as much interested in claiming compensation from the defendant on behalf of the firm as he himself was.
The plaintiff has described himself in the plaint as the owner of a private firm carrying on business at Sariya P. S. Bagodar in the name and style of Surajmull Mahabir Prasad. He has nowhere stated in the plaint that other persons of the family of the plaintiff and who are joint with him are also interested in the said firm. The Court below, therefore, thinks that the suit has been brought by the plaintiff in his individual capacity. I do not at all share the views of the learned Judge.
It is conceivable that a joint Hindu family may be carrying on several businesses and it is also conveivable that one member of that family may be in charge of one particular business. So far as that particular business is concerned, the person looking after that business must be deemed to be looking after the business on behalf of the joint family; in other words he should be deemed karta or manager of the family so far as that particular business is concerned. If such a person files a suit in his own name without describing himself as Karta and manager and it appears from circumstances that he was the person managing the affairs of that particular business, it must be held that the suit by that plaintiff is in his representative capacity on behalf of the other members of the family.
In the present case, we find that, throughout, the plaintiff, namely, Surajmull Jain, has been taking steps for realising his claim from the defendants. It is he who has been always sending notices on behalf of the firm and entering into correspondence with the railway authorities; and ultimately he is the person who has brought the suit as the owner of the firm. He did not conceal the fact in his evidence that the firm is owned by the joint family of which his father and brother are members along with himself.
In this state of affairs, in my opinion, it should have been held that the plaintiff had brought the suit in his capacity as the karta of the family in charge of this particular firm, and the suit by him was in a representative capacity. In the case of -- 'Sheo Shankar Rain v. Jaddo Kuriwar', 1914 PC 136 (AIR V 1) (D), it has been observed by their Lordships of the Privy Council as follows:
"There seems to be no doubt upon the Indian decisions (from which their Lordships see no reason to dissent) that there are occasions, including foreclosure actions, when the managers of a joint hindu family so effectively represent all other members of the family that the family as a whole is bound. It is quite clear from the facts of this case and the findings of the Courts upon them that this is a case where this principle ought to be applied. There is not the slightest ground for suggesting that the managers of the joint family did not act in every way in the interests of the family, itself and no question arises under Section 85, Transfer of Property Act, 1882, because the mortgagee had no notice of the plaintiffs' interests."
The following observation also of the Judicial Committee in the case of -- 'Kishen Parshad v. Har Narain Singh', 33 All 272 (PC) (E), appears relevant to the present discussion:
"The same observations apply to the case of -- 'Imam-ud-din v. Liladhar', 14 All 524 (F). There the decision simply, was that, except in the case of an assignment by the other surveying partner, it is not competent to one only of two or more surviving partners to sue for a debt due to the firm. The decision in the case of -- 'Alagappa Chetty v. Vellian Chetti', 18 Mad 33 (G), cited by the respondents, may be supported oh the ground that the single plaintiff in that case was not shown to be the managing member of the family or to be the only partner of the business with which the litigation was concerned.
Their Lordships think, however, that the pro-position there laid down to the effect that the manager cannot sue without joining all those interested with him, if literally construed, goes too far.
In the opinion of their Lordships, the original plaintiffs in this case were entitled, as the sole managers of the family business, to make in their own names, the contracts which gave rise to the claim, and that they properly sued on such contracts without joining the other members of the family."
In a case of this Court -- 'Lalchand Thakur v. Seogobind Thakur', 1929 Pat 741 (AIR V 16) (H), Chatterji J., with whom Adami J., agreed, laid down the law as follows:
"In view of the observations of their Lordships of the Privy Council '1914 PC 136 (AIR V 1) (D), just now referred to and followed in this very High Court in the case of -- 'Ranjit Prasad v. Ramjathan Pandey', 1917 Pat 352 (AIR V 4) (I), I do not think that it can be laid down as a general proposition that the managing member must be mentioned as a party in that capacity. All that is required is to see whether he effectively represents the family having regard to all the circumstances of the case.
The powers of the. manager in a Hindu joint family are well known, he represents the family in all business transactions; he can enter into contract regarding matters relating to the family; give discharges for debts due to the family and pay debts due to (from) the family. Therefore there can be no doubt that he can effectively represent the other members of the family though he is not mentioned as such ....................
Even if Lal Mohar Thakur was not mentioned therein as manager that does not affect the present case."
I am, therefore, of the opinion that the plain tiff, though he styled himself as the owner of the private firm, which, according to his own case, belonged to the joint family of the plaintiff, his father and his brother, brought the suit in a re presentative capacity as the manager of the busi ness and representing the entire family.
12. The learned Judge went on to consider whether the plaintiff was the karta of the family, and he said that there was no evidence on the record to show that he was the karta or that he had filed the suit in his capacity as the karta; and further that the plaintiff had asserted himself as the owner of the firm and, as such, had claimed a right adverse to the, other members of his family;
I am in entire disagreement with all these observations. There may not be a definite evidence as to a person being the karta, but if there are indications on record, of which I have already made mention, to show that a particular person is the karta of the family or the manager of a particular business of the family, it need not be said in express words that so and so is the karta; it is enough if, from the conduct of the person suing or sued or from other circumstances appearing on the record of the case, it appears that that person is the karta of the family; and, if he is the karta, he need not expressly say so while bringing a suit or when a suit is brought against him.
I hold that the plaintiff, as the managing member of the family business, did represent the family, and that the suit is maintainable by him, without making his father or his brother parties to the action. The fact that he has mentioned himself as the owner of the firm does not show that he was acting adversely to the interest of the other members of the family; as karta he does represent everybody's interest in the family and, therefore ,if he sues as the owner, it means that he is suing on behalf of all the persons interested in the family as the owner of the business in question.
I hold, therefore, that the judgment of the Court below cannot be supported in law, and that the plaintiff is entitled to a decree. I have held that the notice Ex. 4 (a) with a copy of the plaint attached had been served on the General manager of the East Indian Railway, Calcutta, and upon the finding of the Court of first instance, which has not been altered by the lower appellate Court, the wagon in question did arrive at Gaziabad according to the route that was prescribed in the railway receipt, a station which was on the then East Indian Railway. In that view of the matter, the plaintiff is entitled to a decree against the Union of India as owner of the then East Indian Railway.
13. In the result, the appeal is allowed, the judgment and decree of the Court below are set aside, and a decree will be passed in favour of the plaintiff, as was passed by the learned Munsif, against the respondent. The plaintiff will be entitled to his costs throughout. The defendant-respondent is allowed three months' time from this date to pay the amount of the decree, failing which the case will be reported for orders to the State Government.