UNION OF INDIA Vs. GARBHU SAO

JUDGEMENT

(1.) THIS appeal by the Union of India as owner, the Eastern Railway and Northern Railway administrations, defendant first party to the suit, is directed against a money decree for compensation for nondelivery of 11 bags of yellow mustard seeds weighing 925 kilograms (it is so mentioned in the railway receipt, Ext. 1, and wrongly stated as 9.25 kilograms both in the plaint as well as in the judgments of the Courts below) booked from Bindki Town Out Agency to Patna City by defendant No. 3 and consigned to self. The case of the plaintiff-respondent was the defendant No. 3 consigned the said 11 bags of mustard seeds for sale in, plaintiffs gaddi and endorsed the railway receipt in Favour of the plaintiffs concern. The plaintiff paid Rs. 708.72 paise including miscellaneous expenses to Allahabad Bank, Patna, and got the railway receipt, though the value of the consignment was Rs. 991-64 P. per bijak, the rest being payable after sale of the commodity to defendant No. 3. The said consignment was not delivered to the plaintiff in spite of correspondence and notices under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure. The appellant failed to disclose the whereabouts of the consignment and Eastern Railway administration merely gave a reply that it was not liable. It was further averred in paragraph 10 of the plaint that to avoid all objections and future trouble the plaintiff as advised was impleading defendant No. 3 also in the suit. The main relief claimed was "that a decree for Rs. 1106-94 NP. be passed in favour of the plaintiff against the defendants or such other defendants who may be held liable".

(2.) DEFENDANT No. 3 did not contest the suit. Only defendant first party, i.e., the appellant contested it. The main defence was that defendant No. 3 fraudulently obtained the railway receipt from Bindki Town Out Agency in collusion with its staff without actually delivering possession of the alleged goods to the Out Agency at Bindki town for carriage and, therefore, the railway administration was not liable to pay any compensation; the action of the Out Agency staff being illegal and beyond the scope of its duty. Any negligence or misconduct on the part of the railway administration and their staff was also denied. It was further pleaded that the claim was excess, unjust and untenable.

(3.) MR. P.K. Bose, learned counsel for the appellant, firstly urged that no appeal in respect of Rs. 708.72 P. for a decree against the appellant was maintainable in the Court below at the instance of the plaintiff inasmuch as the plaintiff claimed a decree against all the defendants or any one of them. According to MR. Bose, the plaintiff could not be said to be aggrieved by the decree of the trial Court in respect of the amount for which the suit had been decreed. He contended that where a person claims alternative reliefs and one of them is granted to him, he cannot appeal for getting the other relief. In support of his contention he relied on the decision of the Calcutta High Court in Reajuddin Patwari v. Syed Abdul Jobbar, AIR 1924 Cal 445 and an unreported decision of a learned Single Judge of this Court D/- 14-1-1941 in Second Appeal No. 191 of 1940 (Pat), Mst. Panchani v. Mst. Rikhia. In the former case, the plaintiff of that suit brought a suit for ejectment of defendants 1 and 2 from certain lands on the allegation that he was entitled to possession of those lands by virtue of his ijara lease obtained from the eight annas proprietor, the defendants being dar ijaradaar, and their lease terminating some time in the year 1910. In the alternative, he also made a prayer for assessment of fair and equitable rent under Section 157 of the Bengal Tenancy Act. The main defence of the defendants was that they were entitled to hold the lands as raiyats. They also pleaded that the plaintiff had no title. The trial Court declared the plaintiffs right to get rent of the lands, but dismissed the suit in respect of the relief for ejectment. Both parties appealed and their appeals were dismissed by the lower appellate Court. The defendants again appealed to the High Court and the plaintiff preferred a cross objection. While dismissing the cross objection it was observed by their Lordships of the Calcutta High Court that the alternative relief having been granted to the plaintiff, he could not be allowed to say that he did not want that relief but other relief. In the case of Mst. Panchani, Agarwala, J. (as he then was) followed the aforesaid decision of the Calcutta High Court. The plaintiff of that suit, a mortgagee in possession, wanted to recover possession of the house from defendants 1 and 2. In the alternative, she also asked for recovery of the mortgage debt from the mortgagor defendant No. 3. The Courts below dismissed the suit as against defendants 1 and 2, but decreed it for the mortgage money as against defendant No. 3. On second appeal, though this Court held that the suit was wrongly dismissed as against defendants 1 and 2, the appeal could not be allowed as the plaintiff had been granted the alternative relief prayed for by him.