DOMINION OF INDIA Vs. SHRI RADHEY SHIAM

JUDGEMENT

(1.) This is a revision applications filed on behalf of the defendant. Three packages of brass wares were sent from Dalpatpur, a station on the East Indian Railway, on 11-2-1947 on behalf of the plaintiff firm Chhanga Mal Radhey Shiam. The said packages were sent at railway risk. They were booked to self. No one, however, took delivery of the said packages at Hyderabad (Sind) railway station, and they remained lying there. The plaintiff subsequently wrote to the Station Master at Hyderabad (Sind) that the said packages be re-booked to Karachi. The Station Master, Hyderabad (Sind), however, replied that the condition of the packages was not such as to enable the railway authorities to accept the plaintiff's proposal for re-booking the same at railway risk. On the 1st Sept., 1947, the Divisional Superintendent wrote to the plaintiff that the Station Master, Hyderabad (Sind) had already addressed him two letters to the same effect, and as the plaintiff had failed to take delivery of the packages, the consignment had been transferred to the Lost Property Office. In that letter the Divisional Superintendent further asked the plaintiff to note that if he did not still take delivery of the goods on payment of all charges due within fifteen days, the same would be auctioned as required by the rules. The plaintiff failed to take delivery of the consignment as required in this letter. On 17th Dec. 1949, he filed the present suit for recovery of a total amount of Rs. 551 /- as compensation for the loss sustained by him in respect of the above goods. According to the plaintiff the cause of action accrued in favour of the plaintiff on or about 6th July, 1947, when the goods were misappropriated by transferring the same to the Lost Property Office, against the instructions of the plaintiff. This suit was filed against the Dominion of India representing the East Indian Railway in the court of Judge, Small Causes, Moradabad. The suit was contested by the defendant. The trial court decreed the suit of the plaintiff. Dissatisfied with the said judgment, and decree the Dominion of India has preferred this revision application.

(2.) On behalf of the applicant it is argued before me that the contract between the plaintiff and the Railway Company was that the goods should be delivered at Hyderabad (Sind), and that this contract expired after the goods actually reached Hyderabad (Sind). No fresh contract was entered into between the parties. It was, therefore, not open to the plaintiff in law to insist that the goods be sent from Hyderabad (Sind) to Karachi. This argument ignores Rule 47 of the Goods Tariff Rules. Under Rule 47 where a consignor has booked the goods for one station, it is open to him to re-book the goods to any other station provided that he forwards with his application the original railway receipt with sufficient money and stamps to enable the station master to post a reply and the re-booking railway receipt under a registered cover to him. It is not stated before me that this condition was not complied with. The argument before me is that the packages were in a damaged or deteriorated condition at Hyderabad (Sind) Railway Station and that the Railway Administration was justified in refusing to re-book it. Under Rule 47, this is no ground for refusal by the Railway for re-booking the goods. Learned counsel for the applicant has relied on Sec. 74 A of the Railways Act (Act IX of 1890) according to which goods tendered to Railway Administration for carriage by railway should be packed in ascertained manner. I am of opinion that Sec. 74 A applies only to the stage when the goods are initially tendered for being consigned. In the present case the goods had already been tendered and the consignor had subsequently directed that the goods be re-booked, and forwarded to another station from the station to which they were consigned. Under the circumstances, in my opinion Sec. 74 A has no application to the present case.

(3.) Learned counsel for the applicant has further argued that under para. 10 of the Indian Independence (Rights, Property and Liabilities) Order, 1947, the Government of India was not liable for payment of compensation. In this connection his argument is that the case of the plaintiff was for damages for torts, and under para. 10 (1) (b) of the said Order, where the cause of action accrues wholly within the territories of the Dominion of Pakistan, the liability for it shall be of that Dominion. It is not necessary for me to go into the merits of this argument, as I find that no such plea was taken in the written statement. I, therefore, decline to entertain this plea.