THAKUR PRASAD Vs. UNION OF INDIA

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiff claimed a sum of Rs. 316/- and odd from the defendants for non-delivery of a consignment of betel leaves. The suit was decreed by the trial court to the extent of Rs. 175/-, but the lower appellate court has dismissed the suit altogether on the ground that the plaintiff as a consignor had no title to sue and also because notice under Section 77 of the Indian Railways Act was not served.

(2.) Against the judgment of the lower appellate court the plaintiff has filed a second appeal. It was objected on behalf of the respondents that a second appeal is not maintainable in view of Section 102 of the Code of Civil Procedure. We think there is substance in this preliminary objection raised on behalf of the defendants. Learned Counsel for the appellant thereupon said that this second appeal may be treated as an application in revision. We, therefore, proceed to deal with this second appeal as an application in revision.

(3.) The first point taken on behalf of the plaintiff is that the lower appellate court was wrong in holding that the plaintiff was not entitled to sue because he was neither the consignee nor the person to whom the railway receipt had been endorsed. We think that the lower appellate court has fallen into an error of law on this point. The finding of the trial court is that the defendant second party, who was the consignee, was a mere commission agent, and the plaintiff retained the ownership of the goods. It appears that the defendant second party was examined in this case and he supported the case of the plaintiff on this point. The lower appellate court has not reversed the finding of the trial court. The finding of the lower appellate court appears to be that even if the plaintiff had title or ownership of the goods he was not competent to bring the suit because he was neither the consignee nor the person to whom the railway receipt had been endorsed. In our opinion this view of law is erroneous. Since the ownership of the goods was still with the plaintiff, he was entitled to bring the present suit for nondelivery of the consignment to the defendant second party who was a mere commission agent. This view is borne out by a decision of a Division Bench of this High Court in Union of India v. Firm Harchand Rai Bansidhar, First Appeal No. 532 of 1954, decided by Rai and U. N. Sinha, JJ., on the 19th August, 1959. We are, therefore, of opinion that in the circumstances of the present case the plaintiff was entitled to bring the suit against the railway authorities,