Patna High Court
Chaturbhai Bhailalbhai Patel vs Union Of India (Uoi) Representing E.R. ... on 11 January, 1961
Equivalent citations: AIR1961PAT334, AIR 1961 PATNA 334, 1961 BLJR 223 ILR 40 PAT 921, ILR 40 PAT 921
JUDGMENT Mishra, J.
1. This is an appeal on behalf of the plaintiffs who are a firm carrying on business in Calcutta. They were the endorsee of a railway receipt No. 7996, dated the 6th January, 1948, under which 75 bags of biri tobacco weighing 80 maunds 2 1/2 seers, of the value of Rs. 16,015/-, consigned from Bocha-son railway station, at the Gaekwad Baroda State Railway, to Nathnagar, at the East Indian Railway, were not delivered to the plaintiffs. The plaintiffs pleaded that the goods were duly despatched but due to the negligence and/or misconduct of the servants of the defendant, the Union of India in the Railway Department, were lost and, accordingly, they failed to deliver the same to the plaintiffs in spite of demands.
The goods were booked at Bochason station, as mentioned before, at the Gaekwad Baroda State Railway (at present under the Western Railway) and passed through the B.B.C.I. and G.I.P. Railways (at present classified as Western and Central Railways) and were to be delivered at Nathnagar at the East Indian Railway (at present the Eastern Railway). The consignment was booked on the 6th of January, 1948, and notice under Section 77 of the Indian Railways Act and under Section 80 of the Code of Civil Procedure, which was a combined notice, was served on the authorities concerned on the 1st of May, 1948.
The suit was at first filed on the original side of the Calcutta High Court, but on the 26th of August, 1952, the High Court decided that it had no jurisdiction and dismissed the suit (Ext. 8). The present suit was accordingly filed in the Court of the Subordinate Judge at Bhagalpur. The plaint was amended by a petition filed on the 26th of September, 1953, and it was mentioned that as a result of the written statement filed by the Union of India in the Calcutta High Court, saying that no consignment of the date and number referred to in the plaint could be traced at Bochason, the plaintiffs sent their men to Bochason for enquiry. They learnt thereafter that the booking station was Bhaili which was misread as Bochason due to indistinct carbonising in the railway receipt. Accordingly, it was stated that after the word "Bochason" in paragraph 2 of the plaint the word "Bhaili" might be added.
2. The defendant pleaded that no such consignment as was mentioned in the plaint could be traced at Bochason. As the consignment could not be ascertained to have been made over at Bochason, the delivery to the other railways also could not be verified. It was also alleged that the Gaekwad Baroda State Railway was not a juristic person but was owned by His Highness the Gaekwad of Baroda who was not made a party and, as such, the suit could not be maintained. An additional written statement was filed on the 26th of February, 1954, pleading the bar of limitation as also the fact that no notice under Section 77 of the Indian Railways Act or Section 80 of the Code of Civil Procedure relating to the consignment covered by the particulars as given in the petition for amendment of the plaint was in existence, and on this ground also the suit was not maintainable.
Bhaili railway station was one of the stations under the Gaekwad Baroda State Railway which had since passed under the management of the Western Railway, and due to this change of management and lapse of about five years, the defendant was not in a position to make any definite statement regarding the alleged consignment. Since the Gaekwad of Baroda was a necessary party to the suit, as Gaekwad Baroda State Railway was not a juristic person, who was not sued before the High Court of Calcutta, the forwarding railway was never properly sued. There was no privity of contract between the defendant and the plaintiffs and the suit was not maintainable even in that view of the matter. The claim of the plaintiffs was also characterised as excessive and unfounded and, accordingly, the suit was fit to be dismissed.
3. The learned Additional Subordinate Judge, who tried the suit, framed a number of issues. The Court came to the conclusion that the suit as framed could not succeed as it was barred by limitation. It was also held that the suit also suffered from the defect of parties. The Court below further held that the notice under Section 80 of the Code of Civil Procedure was not properly served although, in the circumstances of the present case, there was no necessity for service of notice under Section 77 of the Indian Railways Act. The Court also held that there was no doubt that the goods were booked from Bhaili but they were not received at Nathnagar, On the quantum of compensation claimed, the Court found that if a decree could be passed in favour of the plaintiffs, the amount of Rs. 16,015/- would have to be decreed in its entirety.
4. The first question argued on behalf of the appellants is that the Court below was in error in holding that the suit was barred by limitation. It has, however, not been challenged that, prima facie, the claim is barred. The consignment in question was booked in January 1948 and the present suit was instituted at Bhagalpur on the 27th of August, 1952. The only two relevant Articles of the Limitation Act governing the case would be Articles 30 and 31 both of which prescribe a period of limitation of one year only from the date when the loss or injury occurs or when the goods ought to be delivered. The bar of limitation, however, has been sought to be avoided by taking recourse to Section 14 of the Limitation Act on the ground that the institution of the suit in the Calcutta High Court should be held to be a bona 6de proceeding and, if that period is thus left out of account, the present suit is not affected by any provision of the Indian Limitation Act.
5. Various dates bearing on the point are not in dispute. The consignment was booked on the 8th January, 1948 and the suit for compensation was filed in the Calcutta High Court on the 3rd of March, 1949. The suit having been filed against the Dominion of India a period of two months must be added to the ordinary period of limitation of one year in a case like this and, accordingly, the plaint was presented on the 3rd of March, 1949. The suit, being Suit No. 732 of 1949, was dismissed for want of jurisdiction on the 26th of August, 1952.
The order of dismissal was passed following the decision of a Full Bench of that High Court in Mansi v. Governor General in Council which overruled a previous ruling of that Court that the suit of the present kind could be instituted in the Calcutta High Court. Accordingly the plaintiffs presented another plaint in the Court of the Subordinate Judge, Bhagalpur, on the 27th of August, 1952. The plaint was admitted at Bhagalpur on the 7th of November, 1952.
The circumstances, no doubt, disclose due diligence on the part of the plaintiffs and, as the learned Additional Subordinate Judge has observed, that if bona fide proceeding and exercise of due diligence were the only criteria for the applicability of Section 14 of the Limitation Act, the benefit of that section would be available to the plaintiffs. But the learned Additional Subordinate Judge has proceeded upon the view that before Section 14 of the Limitation Act could be held to be applicable, it must be held further that the cause of action in both the suits was identical.
In his opinion, however, the cause of action could not be held to be the same in both the suits. The plaint presented in the Calcutta High Court mentioned the cause of action as being the non-delivery of the consignment alleged to have been booked at Bochason. The written statement filed on behalf of the Union of India in the Calcutta High Court distinctly stated that no such consignment could be traced out as a result of an enquiry on the point. Even then, when the plaint was filed in the Bhagalpur Court, no endeavour whatsoever was made to ascertain the name of the station of despatch.
It was only when the same stand was reiterated by the defendant in the written statement in the Bhagalpur Court that an enquiry was made on behalf of the plaintiffs and it was learnt that the booking station was not Bochason but Bhaili. The plaint was then amended. The evidence of Ambalal Patel (P.W. 3), the manager of the plaintiffs at Bhagalpur, was that the mistake was committed because in the railway receipt the name of the station of despatch was not legibly written in the carbon copy.
Only the first letter "B" could be read. The plaintiffs used to order goods both from Bochason and Bhaili. It was accordingly conjectured that the letter "B" appearing in the railway receipt referred to Bochason and not to Bhaili. The learned Subordinate Judge came to the inference of gross carelessness and negligence on the part of the plaintiffs' agent in this matter. The reasoning is that, in the first place, if the name was not legible, an enquiry should have been made in the first instance to find out the correct name of the booking station after which alone necessary steps for service of notice under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure should have been taken.
In any case, when this defect was distinctly pleaded in the written statement of the defendant in the Calcutta High Court, this, at any rate, should have put the plaintiffs on enquiry and the plaint could have been amended. Even that was not done. Accordingly, the inference would be that when the plaint was again filed at Bhagalpur, originally mentioning the despatch of the consignment from Bochason, the plaintiffs must be taken to have deliberately chosen to have their cause of action as the loss of the consignment booked at Bochason, Ambalal Patel admitted in his cross-examination that the position could have been ascertained by a letter written to the consignor in Gujrat and a reply could have been received in about a week or so.
Even Chandulal Patel, one of the employees of the firm at Calcutta, admitted that it took three to four days for a letter posted at Bhagalpur to reach Morni in Gujrat. Apart from that consideration, when the defendant in its written statement at Calcutta distinctly stated that the consignment in question had not been booked at Bochason, it was an easy thing for the plaintiffs to amend the plaint by substituting Bochason by Bhaili as it was admitted that the plaintiffs used to receive goods both from Bochason and Bhaili and both of which words began with the letter "B".
The suit was pending for a period of three years or more in the Calcutta High Court after the filing of the written statement by the defendant. No steps were taken during this long interval to ascertain the position. The case of the plaintiffs in course of the present trial was that the consignment was really booked at Bhaili and not at Bochason. In the result, therefore, it must be held that the cause of action as laid in the plaint in the Calcutta High Court was different from the cause of action as made out on behalf of the plaintiffs in the present suit. The learned Additional Subordinate Judge accordingly held that the cause of action in both the suits not being the same, the plaintiffs are not entitled to the benefit of Section 14 of the Limitation Act.
6. Mr. Lalnarayan Sinha for the plaintiffs-appellants has referred to the decision in the case of Mohammad Farooq v. Governor General in Council AIR 1949 Pat 93. This decision was cited before [the learned Additional Subordinate Judge as well. Mr. P.K. Bose, for the respondent, has also referred to the self-same decision in support of his contention that failure to state correctly the name of the railway station from which the consignment is booked in the notice under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure is a fatal defect, because it affects the cause of action.
Even as it is a fatal defect with regard to the above two notices, it will also affect the applicability of Section 14 of the Limitation Act, inasmuch as it is one of the pre-requisites of the application, of this section as has been laid down in a series of decisions of the various High Courts; and it is now almost settled law that the cause of action pleaded in the proceeding, which is held out as having been vitiated under a bona fide mistake, must be the same as the cause of action in the subsequent proceeding, a view which is consonant with the wording of the section.
The cause of action in the suit in the Calcutta High Court in the present case, as mentioned above, being based on the loss of a consignment having been booked at Bochason, and the present suit after amendment, and particularly as sought to be made out in court (course?) of the evidence, being for the loss of a consignment booked at Bhaili, the two cannot be considered as identical. In my opinion, the contention of Mr. P.K. Bose is correct.
The learned Additional Subordinate Judge rightly relied upon this decision for coming to the conclusion that failure to mention the station of booking correctly in the notice under Section 80 of the Code of Civil Procedure affects the cause of action and, accordingly, the same principle should apply in deciding whether the plaintiffs are entitled in the present case to the benefit of Section 14 of the Limitation Act. The following observation of the learned Judge bears out the contention of Mr. Bose :
"I shall, however, make it clear that there may be occasions when errors in a notice under Section 80 Civil P. C., may be fatal to the suit itself. In the circumstances of the case before me I am satisfied that the error was entirely bona fide "and that the cause of action did not depend upon the error in the date of the receipt but on the question as to whether there had been a consignment sent under Railway Receipt No. 238573-A from Howrah to Dhanbad."
The learned Additional Subordinate Judge rightly emphasised that the two stations, namely, that of booking and that of destination, must be correctly entered and this point of view also weighed with! the learned Judge in the aforesaid decision. The reason of the rule is also obvious. The object of Section 80 of the Code of Civil Procedure is to enable the Government to institute an enquiry as to the validity of the claim sought to be enforced against them by the plaintiff and in case it appears that the claim is well-founded, the payment may be made without the necessity of a suit being filed and a decree being passed.
Likewise, the object of a notice under Section 77 of the Indian Railways Act is to enable the railway administration to have an enquiry made as to the circumstances in which a consignment is alleged to have been lost; and if the railway administration is satisfied that the loss occurred due to the negligence and misconduct of the railway employees, making the railway administration liable, to compensate the holder of the consignment for the loss. Payment may have to be made without driving the holder of the consignment to the necessity of filing a regular suit for enforcement of his claim.
In either case, however, the notice must correctly give the description of the consignment. If, therefore, there is defect of a character in the notice which will render it difficult for the Government or for the matter of that, the railway administration to have the necessary enquiry made, the object of the two sections in the two enactments is plainly defeated. Mr. Lalnarayan Sinha contended that it might be easy for the railway administration to have the necessary enquiry made by referring the matter to the authorities at Nathnagar, which was the station of destination of the consignment concerned. Mr. P.K. Bose has urged that it is never the practice of the railway administration, because enquiry is directed to the station at which a consignment is booked to ascertain in the first instance whether such a consignment was ever booked at all.
If a reply is received from there that no consignment as alleged in the notice can be traced out as having been despatched from or booked at that station, there would be the end of the matter and the railway administration cannot be held liable in that event for its failure to comply with the demand of the holder of the consignment. The reason assigned for the rule incorporated in Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure clearly affects the validity of the cause of action in circumstances like those in that present case.
A similar view has been taken by another single Judge of this Court in Second Appeal No. 2153 of 1948, D/. 20-7-1954, as also in the case reported in Choa Mahton v. Union of India, 1957 Pat LR 42 : (AIR, 1957 Pat 475). No decision to the contrary has been brought to our notice by Mr. Lalnarayan Sinha.
7. Section 14 in terms lays down that "in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it."
The learned Additional Subordinate Judge, in my opinion, although he felt satisfied that the suit by the present plaintiffs in the Calcutta High Court was prosecuted in good faith, which was unable to entertain it on account of the changed view of law laid down by a Full Bench of that Court, has, however, rightly held that the cause of action in the two suits must also be the same.
But, as discussed above, on account of the laches or negligence on the part of the plaintiffs, the procedure adopted has been one which makes at difficult to hold that the cause of action as laid in the plaint of the Calcutta suit is the same as the cause of action on which the present suit has been instituted. The plaintiffs-appellants cannot, therefore, be entitled to the benefit of Section 14 of the Limitation Act and the suit must be deemed to have been filed beyond the period of one year, whether Article 30 or 31 of the Limitation Act which Articles alone, in any view, are applicable will govern the case. In that view of the matter, it may not be necessary to decide the other questions which have been canvassed before us by the learned counsel for the parties. Since, however, they have been argued at some length, some of the important points may be noticed here.
8. One of the grounds urged on behalf of the defendant in the Court below, and which has been argued before us as well is that the suit is not maintainable because the consignment was booked, according to the plaintiffs, at Bhaili. Both, Bochason and Bhaili, were stations of the Gaekwad Baroda Railway, and since the plaintiffs have not been able to establish, as to where the loss occurred and the facts disclose that, the goods were not received at Nathnagar, the defendant as the owner of the B.B. C.I.R. or G.I.P. Railway, cannot be made liable.
It is well established that in such a case where the plaintiff cannot prove the loss at a particular railway when his goods had to pass through a number of railways, his remedy for the loss lies against the particular railway administration at whose station the goods are booked. In the present circumstances, therefore, the primary liability would be that of the Gaekwad Baroda Railway and not other railways, such as the B.B.C.I.R., G.I.P. or E.I. Railways, which are the railways owned by the defendant, the Union of India, now under different names.
Apart from the argument advanced by Mr. Lalnarayan Sinha as to the responsibility for disclosure as to the manner in which the consignment was dealt with, which was not canvassed in the court below it may be stated that the proposition of law advanced by Mr. P.K. Bose cannot be challenged. Assuming that to be the position, Mr. P. K. Bose has contended that the Gaekwad Baroda Railway having been owned by the Maharaja of Baroda in his personal capacity, the Dominion of India (now the Union of India) in which the State of Gaekwad of Baroda merged under the State Merger Act (Act 59 of 1949) cannot be made to discharge the liability which is a personal liability of the Gaekwad of Baroda.
He hag urged further that even if it were originally liability of the State of Baroda, even as such the Dominion of India, or for the matter of that, the Union of India cannot be saddled with the liability after the merger of the State of Baroda in the Indian Dominion, inasmuch the State of Baroda has now ceased to be a political unit and as such the Dominion of India which again is a different political unit (although it comprises the State of Baroda now) and a fortiori the Indian Union cannot be fastened the liability which was enforceable against the State of Baroda.
Mr. Lalnarayan Sinha has drawn our attention to Sections 5 and 6 of the State Merger Act. It was contended that under the States Merger Act the liability of the State of Baroda in all respects was taken over by the Union of India. Section 5 saves all the laws, such as Acts, Ordinances, Regulations etc., except to the extent to which the law relates to matters with respect to which the Union Legislature had power to make laws for a Governor's Province; as also Section 6 saves the previous operation of any such law and any penalty, forfeiture or punishment incurred or any investigation, legal proceeding or remedy in respect of any such penalty, forfeiture or punishment.
Mr. Sinha has contended that this covers all the liabilities of the merged State incurred under the operation of any law. The State of Baroda being liable to compensate the plaintiffs in case of the loss of the consignment, the extent of responsibility of the Indian Dominion would be the same. He has referred in support of this contention to a decision of the Supreme Court in the case of Virendra Singh v. State of U.P., AIR 1954 SC 447.
In my opinion, the contention is correct so far as the liability of the State of Baroda is concerned. The learned Additional Subordinate Judge was not right in this view that because the Dominion of India is a different political entity from that of the State of Baroda, the former cannot be sued in respect of a liability which could have been enforced against the State of Baroda. The attention of the learned Additional Subordinate Judge was not drawn to the provisions of the States Merger Act and accordingly he has fallen into an error in this connection.
9. Mr. P.K. Bose, however, has raised another question with regard to the distinction between the personal liability of the Maharaja of Baroda and that of the State of Baroda. He has referred in this connection to the case of Gaekwar Baroda State Rly. v. Hafiz Habibur Haque, AIR 1938 PC 165 wherein it has been held that the Gaekwad Barods Railway was a personal property of the Maharaja of Baroda and it was not an independent corporation.
Mr. Lalnarayan Sinha has contended that the Gaekwad Baroda Railway was not the personal property of the Maharaja of Baroda and as such it was a State concern and, after the merger of the State of Baroda in the Indian Dominion, the Government of India must be deemed to have taken over that liability. In my opinion, there is considerable force in the argument of Mr. Lalnarayan Sinha.
It is no doubt true that in the aforesaid decision of the Privy Council the view has been taken that the Gaekwad Baroda Railway is not a juristic person, but the railway administration as such had been taken over by the Indian Union as a part of the State of Baroda. I see no reason why both in law and equity the Indian Union cannot be held liable for any obligation which was enforceable in law in respect of an act arising out of the running of the Gaekwad Baroda Railway as such. It is how ever not necessary for me to pronounce on this aspect of the question conclusively as this appeal can be disposed of on other points.
10. Mr. P.K. Bose has also referred to the view of the Court below that the notice under Section 77 of the Indian Railways Act was not necessary in as much as it was a case of non-delivery and not a case of loss. Notice under Section 77 of the Indian Railways Act becomes necessary only when the plaintiff sets up a case of loss. The present case is one of non-delivery of the consignment and as such notice under Section 77 is not called for. Mr. Bose has contended that the view of the Court below on this matter is also incorrect.
He has referred to the case of Dominion of India v. Hazari Lal, a Full Bench decision of this Court reported in AIR 1949 Pat 410, which has followed another Full Bench decision of this court in Puran Das v. E. I. Rly. Co., ILR 6 Pat 718 : (AIR 1927 Pat 234). It has been held by the Full Bench that where the plaintiff's case in the plaint is that the goods have been lost owing to the negligence of the servants of the defendant-railway, the case must be taken to be one of loss, even it the plaintiff may have framed the suit for non-delivery. In such a case, notice under Section 77 of the Indian Rail-ways Act is necessary. In the present case also the position is identical. In paragraph 4 of the plaint, it is stated as follows:
"The said Railways while in custody of the said goods lost the same as a result of negligence and/or misconduct of their employees and/or breach of duty and failed and neglected to deliver the same to the plaintiff in spite of demands".
It is thus a case of loss admitted by the plaintiffs and it invokes the provision of Section 77 of the Indian Railways Act. The Court below was wrong in holding | that the present case was one of non-delivery. It is no doubt true that a combined notice under Section 77 of the Indian Railways Act, and Section 80 of the Code of Civil Procedure was given in this case but as has been held in the case of Union of India v. Lakshmi Narain, ILR 33 Pat 214: (AIR 1954 Pat 424) this in itself does not vitiate the notice.
11. The validity of the notice under these two sections has already been referred to above in course of my discussion on the point relating to Section 14 of the Indian Limitation Act. I have already held that in terms of the case of AIR 1949 Pat 93 a notice under Section 80 of the Code of Civil Procedure must contain the same cause of action on which the plaintiff proceeds in the suit arising out of the particular transaction.
It is unnecessary for me to repeat the aforesaid reasoning and I am satisfied that the cause of action disclosed in the notice under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure being the loss of a consignment sent from Bochasaon to Nathnagar whereas the present suit being one on a consignment sent from Bhaili to Nathnagar, the cause of action in the suit cannot be held to be the same cause of action as was disclosed in the above notice.
Following the decision referred to above, it must be held that the suit is bad even on this account and it was rightly dismissed by the court below.
12. Mr. P.K. Bose has also built up an elaborate argument in regard to the suit being bad under Sections 86 and 87 of the Code of Civil Procedure. He has also referred to the law on the matter as it stood prior to the amendment of Section 88 by Section 12 of Act (Central) II of 1951. He has contended that the sanction of the Central Government not having been obtained for the said suit against the Maharaja of Baroda who owned the Gaekwad Baroda Railway, the suit is not maintainable.
It is unnecessary for me to deal with this matter in detail because I have already expressed my opinion that after passing of the Merger of the States Act aforesaid the liability in respect of the Gaekwad Baroda Railway was taken over fay the Union of India and the suit having been instituted after the passing of the aforesaid Act, the Maharaja of Baroda ceased to be a necessary party in the suit and as such Sections 86 and 87 of the Code of Civil Procedure are not invoiced in this case.
13. Mr. P.K. Bose has also contended that even according to the admission on behalf of the plaintiffs' witnesses, the consignor of the goods did not claim the price of the goods lost from the plaintiffs who were not in the least damnified by the transaction. They not having suffered any loss, they are not entitled to any compensation or damages. Mr. Lalnarayan Sinha has not controverted the position that the plaintiffs were not made to pay the price of the consignment to the consignor, but he has urged that this will hardly be a consideration in determining the right of the plaintiffs to be reimbursed for the loss of the goods.
The plaintiffs might well have got the commodity as a gift. Mr. P.K. Bose has urged that in determining the quantum of loss to the plaintiffs this would be a relevant factor as to what loss they have actually suffered. In view of my conclusions recorded above, this argument is entirely academic and need not be gone into.
14. In the result, it must be held that the suit was rightly dismissed by the Court below. There is no merit in the appeal and it must be dismissed with costs.
Tarkeshwar Nath, J.
15. I agree.