UNION OF INDIA Vs. BANSIDHAR NANDY

JUDGEMENT

(1.) THESE two appeals arise out of the judgment of the learned Second additional subordinate Judge, Cuttack, decreeing with costs a suit brought by the respondent for recovery of damages from the Railway administration for non-delivery of certain goods that were booked from Surareddipalayam on the Southern Railway on 10-12-52. The defence of the Railway Administration was that the consignment was looted by a riotous mob at Bezwada Railway Station on 16-12-52 when, due to the death, by fasting, of the well known Andhra Leader Poti Sriramulu in madras, in connection with the formation of a Andhra Province, there was an agitation and commotion in several parts of Andhra territory including Bezwada railway Station. The Railway administration examined some of the members of its staff at Bezwada Railway Station, to show that the loss of the consignment took place at Bezwada Railway Station on 16-12-52. Thus D. W. 1 stated that the consignment in question was kept in wagon No. NWGG. 46452, that it arrived at bezwada Tranship shed intact on 14-12-52 and that the consignment was reloaded in another wagon BBCG. 31100 on 15-12-52 and properly sealed for onward despatch. D, W. 2 stated that he checked this wagon on 24-12-52 and found the consignment missing altogether. The Railway administration did not lead further evidence to show that this wagon was looted by the mob on 16-12-52.

(2.) WHILE the trial was going on in the lower court, the defendants (appellants) on 4-4-59 wanted further time to bring their witnesses but the court refused the prayer as the suit was already old, and directed the defendants to produce their witnesses on 8-4-59. But even on that day the defendants did not examine any other witness, and then the case was closed, with the evidence already on record, and the suit was disposed of on 15-4-59. Thereupon, the defendants assuming the said orders have been passed ex parte filed an application under Order 9 Rule 13 c. P. C. before the same Court on 8-5-59 for setting aside the order and for fresh hearing. But even that application was allowed to be dismissed for default on 7-859. Against this order of dismissal Misc. Appeal No. 2 of 1961 was filed.

(3.) THERE is absolutely no ground for setting aside the judgment of the lower court. The defendants were given ample opportunities to adduce all available evidence. The suit was instituted on 15-2-54. Some of the Railway witnesses were examined on commission at Bezwada and the suit was then taken up for further hearing at guttack in 1959. It should not have been difficult for the Railway administration to bring Railway witnesses to Cut-tack and complete their evidence. Even when their prayer for time was rejected on 4-4-59 the learned lower court adjourned the case to 8-4-59 and during that interval also no steps were taken to bring their witnesses. Again when the application under Order 9, Rule 13 C. P. C. was filed on 8-5-59 no further steps were taken to explain the circumstances under which the witnesses were not available on 8-4-59 in the suit. On the other -hand that application itself was allowed to be dismissed for default on 7-S-59. Thus the railway Administration has been guilty of serious laches and it will not be proper to give them again another opportunity to produce evidence.