DOMINION OF INDIA Vs. GOPAL CHANDRA TAPADAR

JUDGEMENT

(1.) THIS is a Rule obtained by the Dominion of India, now Union o India against a judgment of the F. B. of the Presidency Small Causes Ct. Calcutta, by which the pltf's. suit for recovery of the price of 440 bags of cement was decreed against the second deft. The facts giving rise to this Rule are as follows:

(2.) THE pltf. was the consignee of 440 bags of cement despatched from Japla on the East Indian Railway System for carriage to Gai -bandha on the Bengal and Assam Railway system. This consignment never reached its destination and accordingly the pltf. instituted the suit against the Governor -General of India in Council as representing (l) The East Indian Railway, (2) The Oudh and Trihut Railway, and (3) the Bengal . and Assam Railway. Of these three railways the East Indian Railway and the Bengal and Assam Railway have their offices in Calcutta. The pltf. instituted the suit in the Presidency Small Cause Court, Calcutta, on the allegation that the cause of action arose in Calcutta as the East Indian Railway and the Bengal and Assam Railway have both their business and office at Calcutta and as notices Under Section 77, Railways Act had been served on the East Indian Railway and the Bengal and Assam Railway at Calcutta within the jurisdiction of the Presidency Small Cause Ct.

(3.) MR . Bose appearing in support of the Rule has argued in the first place that the present case was not triable by the Presidency Small Cause Ct. because all the three Railways which have been impleaded as defts. in the suit were owned by the Central Govt. and were represented by the Governor -General in Council who could not be said to voluntarily reside or carry on business or personally work for gain in carrying on the administration of the Railways. In support of this contention reliance is placed upon the decision reported in the case of Rodrickcs v. Secy. of State, 40 Cal. 308 : (21 I. C. I), where Sir Lawrence Jenkins made the following observation: 'The Ct. has no jurisdiction to entertain a suit brought against the Secretary of State where the cause of action has arisen wholly outside the ordinary original jurisdiction of that Ct. on the sole ground that the Secretary of State dwelt or carried on business or personally worked for gain within the local limits of that Ct.' & in this decision Sir Lawrence Jenkins followed an earlier decision of this Court reported in Doya Narain v. Secy, of State, 14 Cal. 256. These two decisions of this Ct. were followed by the Madras H. C. in the case of Govinda -rajulu Naidu v. Secy. of State 50 Mad. 449 : (A. I. R. (14) 1927 Mad. 689), where it was pointed out that the word 'resides' must be taken to refer to natural persons & not to legal entities; & further, the word 'business' is a Commercial business & not a business of the State or Govt. & as such the Secretary of State could not be said to carry on business in running the administration of the Railways. The decision in Bodricks v. Secy. of State, 40 Cal. 308 : (21 I. C. I) was also followed by another Division Bench of this Ct. in Dominion of India v. R. C. K. C. Nath and Co., Civ. Revn. Case No. : AIR1950Cal207 , decided by the C. J. and Banerjee J. on 5 -12 -1949. In view of these authorities, it is impossible for us to hold that the present case can come under Clause (c) of Section 18, Presidency Small Cause Courts Act, which requires that at the time of the institution of the suit any of the defts. should actually & voluntarily reside or carry on business or personally work for gain within such local limits & either the leave of the Ct. has been given before the institution of the suit or the defts. who do not reside or carry on business or personally work for gain acquiesce in such institution. It may be mentioned here that in the present case the pltf. obtained the leave of the Ct. Under Section 18, Presidency Small Cause Courts Act. There is one decision by Lort -Williams J. in the case of Golab Rai v. Secy. of State, I. L. R. (1941) 2 Cal. 160, where his Lordship took the view that carriage by railway is a business within the meaning of Clause 12, Letters Patent, & is carried on by the Govt. of India. In view of the three Division Bench judgments to which we have already referred it is impossible for us to follow the decision of Lort -Williams J. in this case. We accordingly hold that the first point raised by the petnr. must succeed & it should be held that the Presidency Small Cause Ct. Judge had no jurisdiction to entertain the suit under Clause (c) of Section 18, Presidency Small Cause Courts Act.