BHATIA AGENCIES BASTI Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is a plaintiff's second appeal filed against the judgments and decree passed by both the Courts below dismissing the plaintiffs suit for damages against the Union of India and North-Eastern Railway. The plaintiff booked a consignment of 2400 pencilline tubes on 20th January, 1959, for Basti. The period of those pencilline tubes was to expire on 31st January, 1960, after which, the same could not be used for any purpose. The goods were not delivered to the plaintiff and thereupon a notice was sent, on 4th May, 1959, under Section 77 of the Railway Act. Thereafter a notice was sent on 16th November, 1959, under Section 80 of the Code of Civil Procedure. Both the notices were for the loss due to non-delivery of the aforesaid consignment. Subsequently on 26th December, 1959, the Station Master of Govind Nagar sent a notice to the plaintiff under Section 55 and of the Indian Railways Act, for taking the delivery of the goods. The plaintiff, however, insisted upon the open delivery and ultimately after some correspondence open delivery was given to the plaintiff on 24th January, 1960. The plaintiff insisted that the medicines have become useless. Thereafter, the present suit was filed on 9th August, 1960. The learned Munsiff has framed as many as 12 issues in the case but treated issues Nos. 2 and 12 as preliminary issues. They are reproduced below: "2. Whether said notice under Section 80 C. P. C. was served ? "12. Whether the suit is not maintainable because notice to other Railways defendants have not been served ? It is admitted that the cases were booked at Madras. Consequently, Southern Railway and the Central Railway, through which the goods passed, had also to be made parties. With the finding that all the Railways were not made parties and the notices under Section 77 of the Indian Railways Act and 80 of the Code of Civil Procedure were based on the loss of goods and not on the deterioration of the goods, were defective, the suit was dismissed by both the Courts below. I have heard the counsel for both the parties at some length. The first question relating to impleadment of all the Railways has been settled by a Division Bench of our Court in Union of India v. Bhagat Ram (A. I. R. 1972 Alld. 288). In that case, it was held that the notice under Section 77 must be served on each Railway administration which is sought to be made liable to pay com pensation. It was further, held in that case that in cases arising prior to the amendment of the Indian Railways Act, by the Amending Act No. 39 of 1961, it was necessary to give notice to all the Railways. The present cases is a case governed by the old Act as it stood prior to the amendment. However, in the instant case, it has come in paragraph 11 of the written statement of Union of India that the goods were received at Govind Nagar Station on 1-8-1959. That document is paper No. 11 on the record. Under the circumstances the defendant No. 2, North-Eastern Railway, was certainly liable for laches in not immediately contacting the plaintiff, as even at that time the goods could be utilised for the purposes, they were sent. It so seems that no action was taken by the Railway administration to inform the plaintiff till 26th December, 1959, when a major portion of the period of medicine has run out. Consequently, the suit could certainly proceed against the Union of India and the North-Eastern Railway, even if the Southern Railway and the Central Railway were not made parties. In case, it was found that the negligence was on the part of the North-Eastern Railway, the suit could be decreed against it. Coming to the next question of validity of the notices under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure, I agree with the appellant's counsel that provision of notice is not meant for trapping the consignors. The matter has already been agitated before the Railway authorities on 4th May, 1959 when a notice under Section 77 of the Indian Railways Act was served on it. The notice under Section 80 of the Code of Civil Procedure was served on it on 16-11-1959. Under the circums tances, there was sufficient notice to the defendants for the purposes of sections aforesaid. The learned counsel for the appellant has cited before me in Samarath Mall v. Union of India and others, (A. I. R. 1959 M. P. 305). In that case, under exactly the same circumstances, the Division Bench held that the notices given at the time of loss of the goods could remain valid, even if the goods were subsequently traced and found to be in a deteriorated condition. That Division Bench case is on all fours in the present case. I am in respectful agreement with the aforesaid Madhya Pradesh case. The suit of the plaintiff could not be dismissed as not maintainable on the aforesaid two grounds. The appeal is, therefore, allowed. The judgments and decree of both the Courts below are set aside. The suit is remanded to the trial Court for decision on merits in accordance with the observations made above. The parties will be at liberty to adduce such evidence as they think proper. The cost of this appeal will abide the ultimate result of the suit.