DUPPANAPUDI SATYANARAYANA Vs. PARAMESWARA SINGH

JUDGEMENT

(1.) The plaintiff is the revision-petitioner and feels aggrieved by the order of the trial Court that he will not be entitled to benefit of the notices issued under section 77, Railways Act and section 80, Civil Procedure Code, by the fifth defendant. The circumstances under which the aforesaid order had been passed can be shortly narrated.

(2.) The petitioner is a merchant doing business in lime fruits and in compliance with order had despatched 153 bundles of limes to the fifth defendant to Shalimar by train from Palakol. A part of the consignment is alleged to have been spoiled in transit and the fifth defendant filed a claim under section 77 of the Railways Act claiming damages for the loss caused to the goods. Subsequently the revision petitioner also sent a notice under section 77 of the Railways Act and section 80, Civil Procedure Code. He, however, filed the suit claiming damages before the expiry of the two months from the date of the notice under section 80, Civil Procedure Code. The pleas raised by the defendants Nos. 1 to 4 in the case, who are the Union of India represented by the different sections of the Railway enroute to Shalimar and the General Managers of the concerned Railways are that the suit is premature, that there has been no negligence on the part of the different defendant-Railways and that only the consignee would be entitled to sue for the damages. Thereafter the fifth defendant presented an application that in view of the defence raised he 'should be transposed as a co-plaintiff. It was argued before the trial Court that the plaintiff or the fifth defendant would be entitled to damages and that due to bonafide confusion of their respective rights the suit has been filed by the consignor impleading the consignee as the defendant. The several arguments urged against the fifth defendant being transferred to the array of the plaintiff have not been accepted by the trial Court and the fifth defendant has been made a plaintiff subject to the condition referred to earlier in the judgment.

(3.) The case has been ably argued by the advocates of the parties. It was urged on behalf of the revision-petitioner that the trial Court has erred in imposing the condition on the original plaintiff, who was entitled to the benefit of the notices issued on behalf of the fifth defendant. He has also argued that the question should have been left open and decided as a legal issue in the case. Having given my best attention to the argument urged in support of the revision petition, I have not been convinced about the order before me being incorrect. Though there are the observations in Zamindar of Sivaganga v. Muthayya Chettiar, (1937) 2 M.L.J. 466. that service of notice substantially giving details of the claim is sufficient compliance with the statutory requirement and a person claiming under him who has given the notice can file a suit, there are decisions to the contrary. The advocate of the opposite party has relied on Province of Madras v. Vellayan Chettiar, (1944) 2 M.L.J. 65 : I.L.R. (1945) Mad.263.