AGENT, BENGAL NAGPUR RAILWAY Vs. BEHARI LAL DUTT

JUDGEMENT

(1.) This Miscellaneous Appeal (No. 180 of 1924) and the S. A. No. 1016 of 1924 are directed against the same decision of the Court below. There is also an application under Section 115, C. P. C, filed by the appellant against the same order. The explanation is that in the present unsettled state of the law the appellant could not decide on the proper procedure.

(2.) The Miscellaneous Appeal was first heard and the learned Advocate for the respondent took a preliminary objection on the ground that no appeal lay. The facts of the case are that the plaintiff respondent brought a suit for recovery of the value of certain goods which he had despatched from one railway station to another on the Bengal Nagpur Railway but the goods were not delivered to the consignee. He accordingly raised the present suit and in the plaint filed the name of the defendant was given as " Agent of the Bengal Nagpur Railway Saheb " Bahadur". The defendant, Mr. Young, who was the Agent of the Bengal Nagpur Railway Company at the time, appeared and one of the objections that he took was that the frame of the suit was bad. He also took other objections under Secs.75 and 77 of the Indian Railways Act on the ground's that the plaintiff had not declared the value of the goods as he was legally bound to do at the time of the consignment and that notice under Section 77 of the Indian Railways Act had not been properly served. The learned Munsif in the trial Court without going into the merits of the case held that the suit as framed was not maintainable. He also found against the plaintiff on the objections under Secs.75 and 77 of the Indian Railways Act. In this view he dismissed the plaintiff's suit. There was an appeal by the plaintiff to the learned District Judge of Bankura who considered the first question only, namely, whether the frame of the suit was defective and being of opinion that the intention of the plaintiff was to, sue the Railway Company he directed the plaint to be amended and the suit to proceed. The learned District Judge did not consider the decision of the trial Court under Secs.75 and 77 of the Indian Railways Act. In the view which the learned Judge took he set aside the decree of the trial Court and passed the following order: "The case will go back to the lower Court for amendment of the title of the defendant Company and for a fresh trial. The costs of the Court will abide the result of the suit. The Court fee paid on the memorandum of appeal should be returned to the appellant." Against this judgment the appellant has preferred this appeal and S. A. 1016 of 1924. It is argued on behalf of the respondent that this order not being an Order under Order XLI, Rule 23, is not appealable and therefore this appeal is incompetent. It is further argued that the decision of the first Court dismissing the plaintiff's suit was not a decision upon a preliminary point. It is apparent that that Court did not enter into the merits of the case, but held that the plaintiff's suit could not proceed because of the defect in the description of the defendant; and it also found that the suit was barred under Secs.75 and 77 of the Indian Railways Act. The decision of that Court must be taken to be a decision on a preliminary point and the remand order of the lower Appellate Court was one under Order XLI, Rule 23, C. P. C. Moreover, it has been held that though an order of remand passed by the Court of Appeal below may not be in strict accord with the provision of Order XLI, Rule 23 read with Order XLIII, Rule 1(u), if the order of the Appellate Court purports to be an order under Order XLI, Rule 23, an appeal will lie from such an order. Strictly speaking the order passed by the learned Judge is not in conformity with Order XLI, Rule 23, but it is manifest from the form of his order that he purported to pass it under Order XLI, Rule 23. One of the orders that he passed is that the Court-fee paid on the memorandum of appeal should be returned to the appellant and such an order can only be passed under Section 13 of the Court Fees Act in a case where the remand is made under Order XLI, Rule 23. It has further been held that an order passed by the Appellate Court in the exercise of its inherent jurisdiction, which it possesses, as held in the Full Bench case of Ghuznavi V/s. The Allahabad Bank Ld. (1917) I. L. R. 44 Calc. 929. is an appealable order even though it may not come within the scope of Order XLI, Rule 23, Bhairab Chandra Butt V/s. Kali Kumar Dutt (1922) 37 C. L. J. 491. and Radha Krishna V/s. Kamal Kamini (1922)35 C. L. J. 345. In this state of the authorities, I am of opinion that the appeal is competent. Even if there are any doubts as to the maintainability of the appeal in such cases the memorandum of appeal may be treated as an application under Section 115, C. P.C., where we are satisfied that the order passed by the Lower Court is not in accordance with law.

(3.) Now I come to the merits of the appeal. It has been, observed that the trial Court found against the plaintiff and held that the suit was not brought against the proper party and it is therefore not maintainable. It is not questioned before us that the description of the defendant as appears from the plaint is not strictly in accordance with law. It cannot be disputed that the frame of the suit is in contravention of the provisions of Order XXIX, Rule 1 and Schedule A to the Civil Procedure Code and that it should have been brought against the Railway Company. In the case of Indian General S. N. and R. Coy., Ltd. V/s. Lal Mohan Shaha (1915) I. L. R. 43 Calc. 441. the suit was brought against two Companies through a certain person who was named as the joint agent of two companies. It was held that the frame of the suit was in contravention, of Order XXIX, Rule 1. But it is argued by the respondent that the plaintiff should be allowed to amend the plaint and to constitute the suit in accordance with the provisions of law. It appears that the plaint was filed on the 28 October, 1922. The written statement on behalf of the defendant was filed on the 2nd January, 1923. In paragraph 2 of the written statement the defendant pleaded that the suit as framed was not maintainable. On the 12 June, 1923 the hearing of the evidence and the arguments of the pleaders were finished and judgment was reserved. Thereafter on that day the plaintiff filed a petition for amendment of the plaint. The learned Munsif rejected It on the ground that the prayer could, not be allowed at that stage. From these facts it cannot be said that the mistake that was committed was an accidental one. The plaintiff adhered to his case that the suit as framed was in proper form until after the arguments of the pleader of the defendant when he was convinced of his mistake and put in an application for the amendment of the plaint.