EAST INDIAN RAILWAY COMPANY Vs. KANAILAL

JUDGEMENT

(1.) This is an application under Section 115, Civil Procedure Code and it has arisen under the following circumstances: On the 13 June 1920, the Opposite Party delivered to the Jodhpur- Bikaneer Ry. at Bikaneer Station for carriage to Howrah as passenger's luggage 12 packages, 7 of which were placed in the guard's van. At Howrah the Opposite Party received all the said packages save one of those placed in the guard's van, which had been lost in transit. On the 26 April 1921 the Opposite Party instituted a suit in the Calcutta Small Cause Court for the recovery of a sum of Rs. 981-4-0 in respect of the package which was lost against the East Indian Ry. Company. On the 7 February 1923, the suit was decreed in favour of the Opposite Party, although the Petitioner Company had taken the point that no notice of suit under Section 77 of the Railways Act had been given. The Petitioner Company now contends that the learned Judge in the Small Cause Court had exercised a jurisdiction not vested in him by law in entertaining and decreeing the suit against the East Indian By. Company in the absence of a notice under Section 77 of the Railways Act. The Petitioner Company applied to my learned brother, Mr. Justice Greaves, on the 20 August 1923, and obtained a rule under Section 115, Civil Procedure Code against the Opposite Party and this rule has now come on for bearing before me.

(2.) On behalf of the Petitioner Company considerable stress has been laid on the case of C.D.M. Hindley V/s. Joynarain Marwari 54 Ind. Cas. 439 : 24 C.W.N. 288 : 40 c. 962 and on the case of The Assam Bengal Ry. Co., Ld. V/s. Radhika Mohan Nath 72 Ind. Cas. 714 : (1923) A.I.R. (C.) 397 : 28 C.W.N. 438 and it has been contended that usurpation of jurisdiction by the Small Cause Court by holding that a notice under Section 77 of the Railways Act is unnecessary can be revised by this Court under Section 115, Civil Procedure Code.

(3.) Sir Binode Mitter for the Opposite Party has contended that the present is not a case of usurpation of authority, nor is it a case of a conscious violation of a rule of law and that, therefore, on the authority of the decision of the Privy Council in Ameer Hossain V/s. Sheo Baksh Singh 11 C. 6 : 11 I.A. 237 : 4 Sar. P.C.J. 659 : Rafique and Jackson's P.C. No. 83 : 6 Ind. Dec. (N.S.) 760 (P.C.), the present rule ought to be discharged.