UNION OF INDIA Vs. NAWAB PANDEY

JUDGEMENT

(1.) In this case the plaintiffs brought 3 suit against the Union of India as the owner of North Eastern Railway Administration, alleging that a consignment of salt was booked from Kandala Railway station on the Western Railway near Cutch to Jamuna Das Sri Niwas Limited of Calcutta deliverable at Bhagwanpur railway Station at Muzaffarpur on the North Eastern Railway. The consignment did not reach the destination in proper time It arrived at the railway station late and was delivered to the plaintiffs in a damaged condition. The plaintiffs, therefore, claimed a sum of Rs. 1270/- and odd from the defendant as compensation. The suit was contested by the defendant, and one of the main grounds taken by the defendant was that notice under Section 77 of the Railways Act was not given to the contracting railway and there was no proof that the loss or damage occurred within the jurisdiction of the North Eastern Railway to whom notice under Section 77 of the Railways Act was given by the plaintiffs In this case. It was, therefore, argued on behalf of the defendant that no decree ought to have been passed in favour of the plaintiffs as against the defendant. The argument was overruled by the tried court and a decree for compensation was granted to the plaintiffs for loss of consignment. The defendant took the matter in appeal to the lower appellate court, but the appeal has been dismissed and the judgment of the trial court has been affirmed.

(2.) The defendant has obtained a Rule from the High Court calling upon the opposite parties to show cause why the judgments of both the lower courts should not be set aside by the High Court in exercise of its revisional jurisdiction.

(3.) On behalf of the petitioner it was submitted that there was no evidence given in this case and there was no finding of the lower courts that the loss or damage took place within the jurisdiction of the North Eastern Railway to whom notice was given by the plaintiffs under Section 77 of the Indian Railways Act. It was, therefore, argued by learned Counsel on behalf of the petitioner that no decree ought to have been granted to the plaintiffs as against the North Eastern Railway for damages for loss of consignment. In our opinion this argument is well founded and must be accepted as correct. The legal position has been explained in Governor- General of India in Council v. Sukhdeo Ram, AIR 1949 Pat 329 where it was pointed out by this High Court that Section 80 of the Railways Act gives the plaintiff the choice of claiming his remedy either against the railway administration to which the goods are consigned or against the railway administration on which the loss occurs. Where the goods are consigned to a railway for delivery at a railway station on another railway and the suit for damages for short delivery is brought against the Governor-General representing the later raiway where, however, the loss does not take place, the latter railway cannot be made liable for the loss on the theory of agency or on the theory of partnership. The same view has been taken in a later case by a Division Bench of this High Court in Messrs. Halt. Mohammad AM and Sons v. Union of India, Second Appeal No. 1670 of 1954, D/- 22-1-1959 (Pat), and again in another case, Mohammad Shukrullah v. Union of India, Second Appeal No. 551 of 1957, D/- 16-7-1962 (Pat). In view of the principle laid down in these decisions we are of opinion that the plaintiffs are not entitled to a decree for damages against the Union of India representing as the owner of North Eastern Railway Administration. For these reasons we hold that this application in civil revision should be allowed and the judgment and decree of both the lower courts should be set aside 'and the suit brought by the plaintiffs should be dismissed.