UNION OF INDIA Vs. KEWAL PARKASH

JUDGEMENT

(1.) This is a petition for revision filed on behalf of the Union of India, under S. 25 of the Provincial Small Cause Courts Act against the judgment and decree dated March 28, 1973, passed by Judge, Small Cause Court, Delhi The petition arises in the following circumstances:

(2.) Plaintiff-respondent, Kewal Parkash, proprietor of M/s. Kewal Parkash & Brothers, Dry Fruit Merchants & Commission Agents, filed a suit against the Union of India, owning and representing the Northern Railway, for the recovery of Rs. 994.20 on account of damages for short delivery and goods delivered in damaged condition. It was stated in the plaint that a consignment comprising 250 cases of raisins was consigned with the Railway at Peshawar Cantt. Station for carriage by rail and delivery at Delhi station, under invoice No. 47, Railway Receipt No. 84871 dated 19-8-64, ex-Peshawar Cantt. to Delhi. The plaintiffs were the consignees of the railway receipt for the said goods. It was alleged that the goods were consigned at railway risk rate. It was also pleaded that due to the negligence and want of proper care on the part of the Railway Administration and/or its servants, seven cases out of the suit consignment, were delivered to the plaintiff- respondents in a badly damaged condition with heavy pilferage. The fact of damage and shortage was brought to the notice of the station incharge before taking delivery and removal of the goods from the railway premises. Open delivery was granted by the Railway and 113 kgs. of raisins were found short and 62 kgs. of raising were delivered on assessment of damages at 85 per cent. It was further alleged that although the Railway administration was called upon to inform or disclose to the plaintiff-respondents as to how the consignment was dealt with in transit but the railway administration did not supply particulars thereof. The compensation for short delivery was claimed at Rs. 678 and the compensation tor damage was claimed at Rs. 316.20. It was also pleaded that notices under & 78-B of the Indian Railways (Amendment) Act, 1961 and under S. 80, Civil Procedure Code. had been given to the petitioner-defendant but to no avail.

(3.) The Union of India contested the suit on various grounds. The suit was claimed to be barred by time. The petitioner-defendant also denied the title of the plaintiff to the goods in question or their right to sue. The defendant also denied negligence or want of proper care on the part of the Railway administration or its servants. It was pleaded that since the Pakistan seals on the wagon were found to be intact, the Railway administration could not be held liable. It was further pleaded that the consignment was booked by Pakistan Railways and the defendants informed the plaintiff- respondents about the loss having taken place in Pakistan and asked them to seek relief from Pakistan Western Railway with whom the contract of carriage was entered into by the plaintiff-respondents. It was also stated that the Railway administration was not bound in law to disclose as to how the consignment was dealt with in transit It was suggested that the plaintiff-respondents could seek relief from Pakistan Western Railway where the loss occurred because one sovereign State cannot be an agent of another sovereign State. The receipt of notices under S. 78-B of the Indian Railways (Amendment) Act, 1961 and S. 80, Civil Procedure Code. was admitted. It was further submitted. that no cause of action was disclosed in the plaint.