SECRETARY OF STATE FOR INDIA Vs. MANSEY LAKHAMSEY

JUDGEMENT

(1.) The suit is for Rs. 1295 being the amount of 185 consolidated claims for shortage in respect of goods consigned from no less than forty-six stations on the East Indian Railway and the Great Indian Peninsula Railway to Bombay. The plaintiffs might have filed the suit in the Presidency Small Causes Court under its extended, jurisdiction but have preferred to bring it in the High Court. The plaintiffs base their claim for shortage on each consignment on the difference between the average weight per bag according to the system of measurement adopted by the railway company and the weight of that bag when taken delivery of from the company by the consignee in Bombay. To that I will refer later. The railway company contend that the weight inserted in the railway receipt when the bags are accepted by the company is only for the purpose of ascertaining what the railway company should charge for freight.

(2.) Out of the fourteen issues raised before the trial Judge issues Nos. 4 and 5 were regarded by him as preliminary issues and by consent issue No. 4 was struck out as it was included in issue No. 5. The plaintiffs contended that the weight inserted in the railway receipt amounted to (I) an estoppel and (2) an admission of the weight. The learned trial Judge held that there was no estoppel but that the weight in the railway receipt was binding on the company as "an admission on their part of the weight as they have accepted it prima facie for the purpose of charging freight at the station of consignment." The parties agree that this is such an admission as will throw the burden of proof on the railway company and it appears that if the railway company calls no evidence a decision will go against them on the admission found against them of the weight as inserted in the railway receipt. Relying, therefore, on this decision as a "judgment" the defendants have appealed under clause 15 of the Letters Patent.

(3.) The respondents raise the preliminary objection that the decision on this point does not amount to a judgment. This Court has in construing the word "judgment" in clause 15 of the Letters Patent always followed the decision in Miya Mahomed v. Zorabi (1909) 11 Bom. L.R. 341. It is also true that each case has to be determined on its own facts and that it is undesirable, as stated by Macleod C. J. in Goverdhanlalji V/s. Chandraprabhavati , that a suit should be tried piecemeal. The actual decision in the last named case that the finding that the suit for increased maintenance was maintainable where maintenance had been fixed by a consent decree is not a "judgment" is under appeal to the Privy Council. I cannot do better than cite a passage from the Chief Justice's judgment, delivered on August 16, 1926, granting leave to appeal, which, I think, is particularly appropriate to the present case. He says :- But bearing that in mind, what is the effect of the decision of the appellate Court ? It is this that it is at any rate premature to have this preliminary issue decided by the appellate Court, and that the rest of the case must be heard on its merits before the appellate Court is willing to entertain this preliminary issue. The result is that though the defendant may be perfectly right, yet the parties are to be exposed to the serious expense and delay which the trial of the case on its merits would involve. I say this because if the suit is proceeded with it will necessarily involve something in the nature of an account both of capital and income of the largo possessions of the defendant, which are scattered over different parts of India. The affidavit of Motiram Narbheram Vakil filed on August 9, 1926, on behalf of the plaintiff in answer to this present application shows in para. 9 what a large amount of property is involved. If, therefore, there is a substantial preliminary issue to be decided, which may render this long and expensive trial quite unnecessary, then with all respect to the judgment of Sir Norman Macleod and Mr. Justice Coyajee, I think it ought to be determined before that expense is incurred. I wish to make it clear that if the defendant's objection succeeds, then the suit will fail entirely and will be dismissed. So that in the event of this preliminary issue being decided in one way, it will make a final ending of the suit, although I quite follow that if it is decided in the other way the suit will proceed. Under these circumstances we have carefully considered to the best of our ability all the arguments that have been addressed to us by counsel on either side. But, in the result, in the exercise of our discretion, we think that this is one of those exceptional cases in which we ought under Clause 40 to grant permission to the defendant to appeal to the Privy Council from the order of the appellate Court.