Dominion of India v. Matoli Ram — 1952 DIGILAW 98 (RAJ)

Sharma, J.—These are two appeals by the Dominion of India representing B.B. & C.I. and E.I. Railways against one Matoliram described as Manager and Karta of the firm Messrs. Ramnarain Matoliram, situated in Bharatpur. They arise out of two suits filed by the plaintiff, Matoli-ram, against the Dominion of India representing B.B. & C.I., E.I. and B.A. Railways. 2. In one of the suits, that is suit No. 15 of 1948, the plaintiffs case was that a consignment of 175 bags of rape seed weighing 398 maunds and 5 seers belonging to the plaintiff was despatched from Bharatpur to Bangaon in Bengal under invoice No. 2 R/R 50885 of 26th March, 1947. This consignment was not at all delivered to the consignee, although in the usual course it ought to have been delivered to the consignee at destination within two or three weeks at the most. It was alleged that in spite of repeated requests, demands and notices, the plaintiff was not delivered the consignment. It was also alleged that the non-delivery of the consignment was due to the gross negligence, carelessness and misconduct of the railway servants, and that the defendant was guilty of wrongful withholding or wrongful conversion of the plaintiffs goods and was bound to compensate the plaintiff. It was prayed that a decree, be given to the plaintiff for the recovery of Rs. 12,500/- consisting of Rs. 11,943/12/-, the cost of the goods at Rs. 30/- per maund as per market rate at destination, Rs. 546/4/- for loss of interest, and Rs. 10/- on account of cost of notices. 3. In the other suit, that is, suit No. 16 of 1948,the plaintiffs case was that a consignment of 200 bags of mustard seed belonging to the plaintiff was despatched from Bharatpur to Phulbari in Bengal under invoice No. 1 R/R 50887 dated the 23rd of March, 1947. Out of the consignment only 102 bags were delivered to the consignee at destination, and the remaining 98 bags were not delivered at all in spite of repeated demands and notices. It was alleged that the non-delivery of 98 bags was due to the gross negligence, carelessness and misconduct of the railway servants, and that the defendant was guilty of wrongful withholding or wrongful conversion of the plaintiffs goods, and was bound to compensate the plaintiff. A sum of Rs. It was alleged that the non-delivery of 98 bags was due to the gross negligence, carelessness and misconduct of the railway servants, and that the defendant was guilty of wrongful withholding or wrongful conversion of the plaintiffs goods, and was bound to compensate the plaintiff. A sum of Rs. 6,688/8/- for the cost of 98 bags of mustard seed weighing 222 maunds and 38 seers at Rs. 30/- per maund as per market rate at destination, plus Rs. 301/8/- for loss of interest, and Rs. 10/- on account of cost of notices, totalling Rs. 7,000/- was claimed. 4. In both the suits the Dominion of India representing the B.B. & C.I. and E.I. Railways entered appearance. As regards B.A. Railway, it was alleged that the said railway no longer existed, and the defendant could not, therefore, represent the said railway. Written statements, which were filed in both the suits, raised the same questions of law and fact An objection was taken in both the suits that there was no averment regarding service of notices under sec. 80 of the Code of Civil Procedure, and the plaints be, therefore, rejected. The learned District Judge, Bharatpur, who was seized of both the suits, however, overruled the objection, and applications in revision were filed in both the suits before the Matsya High Court at Bharatpur. During the pendency of the applications for revision the plaintiff sought leave to amend the plaints clearly alleging that notices under sec. 80 of the Code of Civil Procedure had been served on the defendant. This amendment was allowed, and the applications for revision were dismissed. 5. As has been said above, in both the cases questions of law and fact were the same. Only the amount claimed in the two suits was different. The learned District Judge framed 14 issues in each of the two cases. Some of them are exactly the same, while others are substantially the same with only a little difference in language. The issue relating to the sum claimed certainly differs inasmuch as it relates to the amount. It is, therefore, unnecessary to give all the issues in both the suits separately. The issues struck in suit No. 15 alone are given below, and they show the points in controversy in both the suits : — "1. Whether the consignment mentioned in para 1 of the plaint belongs to the plaintiff or not? It is, therefore, unnecessary to give all the issues in both the suits separately. The issues struck in suit No. 15 alone are given below, and they show the points in controversy in both the suits : — "1. Whether the consignment mentioned in para 1 of the plaint belongs to the plaintiff or not? 2. Whether the consignment mentioned in para 1 of the plaint is still undelivered to the plaintiff? 3. Whether the non-delivery of the above-mentioned consignment is due to the negligence, carelessness, and misconduct of the railway? 4. Whether the railway is guilty of wrongful withholding or wrongful conversion of the goods? 5. Whether the plaintiff is entitled to recover Rs. 11943/12/- price of the goods and Rs, 564/4/- on account of interest and Rs 10/- cost of notices? 6. Whether the plaintiff has served the defendant with notices required by law? If not, what is its effect on the suit? 7. Whether Bangaon is under Pakistan Government, and if so, what is its effect on the suit? 8. Whether the B.A. Railway has ceased to exist ? If so, its effect on the suit? 9. Whether the plaintiffs representatives have demanded the delivery of the goods at Bangaon? 10. Whether the suit is not maintainable? 11. Whether the plaintiff is the Manager and Karta of joint Hindu family? 12. Whether the consignment mentioned in para 1 of the plaint was booked at owners risk under risk note form A and C, and what is its effect on the suit? 13. Whether the suit is cognizable by this Court? 14. To what relief, if any, is the plaintiff entitled?" Issue No. 5 differs in suit No. 16 only to this extent that the sum claimed is Rs 6,688/8/- on account of the price of the goods, and Rs. 301/8/- on account of interest, in place of the sum of Rs. 11,943/12/- on account of the price of the goods and Rs. 564/4/- on account of interest, and issue No. 7 differs only to this extent that the name Phulbari is given in place of Bangaon. 6. 301/8/- on account of interest, in place of the sum of Rs. 11,943/12/- on account of the price of the goods and Rs. 564/4/- on account of interest, and issue No. 7 differs only to this extent that the name Phulbari is given in place of Bangaon. 6. The learned District Judge has given his findings on all the issues in favour of the plaintiff in both the suits, and has consequently decreed them in full." Against the decree of the lower court in each of these suits, the defendant filed an app2al in the Matsya High Court at Bharatpur, and after the integration of Matsya with Rajasthan, and the establishment of this Court, both the appeals have been sent to it for hearing and disposal. 7. We have heard the learned counsel for both the parties. Same arguments were advanced on behalf of both the parties in both the appeals, and it would be convenient to dispose both of them by a single judgment. Although the grounds of appeal taken in each appeal are formidable in their number inasmuch as in one appeal their number is 61 and in the other it is 62, for which counsel drafting the memorandum of appeal can hardly be congratulated, yet the points of controversy between the parties were not many, and the purpose could have been better served by shortening the number of grounds of appeal as far as possible, and putting them in clear and concise language. However, Mr. Beri, the learned counsel who argued the appeals on behalf of the appellant, was careful enough to separate the grain from the chaff, and raised only the following points in his arguments :— (1) Bharatpur court had no jurisdiction to hear the case. (2) The plaintiff failed to prove that he was the owner of the two consignments. (3) The plaintiff did not demand delivery either at Bangaon or at Phulbari. (4) Risk notes A and C absolved the defendant from liability. (5) The plaintiff failed to prove what price he could get for the goods for the two consignments at Bangaon and Phulbari respectively at the time when they ought to have been delivered. (6) Notices required by sec. 77 of the Railways Act and by sec. 80 of the Code of Civil Procedure were not served on the defendant. 8. (5) The plaintiff failed to prove what price he could get for the goods for the two consignments at Bangaon and Phulbari respectively at the time when they ought to have been delivered. (6) Notices required by sec. 77 of the Railways Act and by sec. 80 of the Code of Civil Procedure were not served on the defendant. 8. Taking up the first point raised by the learned counsel for the appellant, which, in fact, appears to be the most ticklish point in the case, it was argued by the learned counsel for the appellant that according to the principles of international law, the sovereign of one independent State cannot be sued in the courts of another independent State. The Dominion of India vis-a-vis Bharatpur was an independent sovereign State, and no suit could be brought in the courts of Bharatpur State against the Dominion of India, as Bharatpur State was another sovereign State. Reliance was placed on the cases of the Parlement Belge reported in (1879-80, 5 Probate Division 197), the Porto Alexandre reported in (1920 Probate Division 30), Duff Development Company Limited vs. Government of Kelantan and another reported in (1924 A.C. 797), and Compania Naviera Vascongado vs. Steamship "Cristina" and persons claiming an interest therein reported in (1938 A.C. 485). 9. In the case of Parlement Beige, the following well-known principle of international law was laid down: — "As a consequence of the absolute independence of every sovereign authority and of the international comity which induces every sovereign State to respect the independence of every other sovereign State, each State declines to exercise by means of any of its Courts any of its territorial jurisdiction over the person of any sovereign or ambassador, or over the public property of any State which is destined to its public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory." In that case an unarmed frigate belonging to the State of Belgians, which was in the hands of officers commissioned by the said State, and employed in carrying mails was held not liable to be seized in a suit in relm to recover redress for a collision, and it was observed that this immunity was not lost by reason of the frigates also carrying merchandize and passengers for hire. 10. 10. In the case of Porto Alexandre, it was held that— "A vessel owned or requisitioned by a sovereign independent State and earning freight for the State, is not deprived of the privilege, decreed by international comity, of immunity from the process of arrest, by reason of the fact that she is being employed in ordinary trading, voyages carrying cargoes for private individuals." The case of the Parlement Beige (1880, 5 P.D. 197) was considered and the principles laid down therein were applied. 11. In Duff Development Company, Limited vs. Government of Kelantan and another, it was held that— "A Government recognized as sovereign by His Majestys Government is not the less exempt from the jurisdiction of our Courts because it has agreed to restrictions on the exercise of its sovereign rights." 12. In the case of Compania Naviera Vascongado vs. Steamship "Cristina" and persons claiming an interest therein, it was held that— "The Courts in England will not allow the arrest of a ship, including a trading ship, which is in the possession of, and which has been requisitioned for public purposes by, a foreign sovereign State, inasmuch as to do so would be an infraction of the rule well established in international law that a sovereign State cannot, directly or indirectly, be impleaded without its consent, and, therefore, that the writ and all subsequent proceedings must be set aside." 13. From these authorities it is established that a sovereign of an independent State cannot be sued in the courts of another independent and sovereign State. There is, however, a rider to this general principle. It is that where the sovereign of an independent State submits to the jurisdiction of the courts of another sovereign and independent State, the courts will have jurisdiction to decide the case. In Halsburys Laws of England, Volume 6, 1909 Edition, Part V, Article 662, it is given that— "The privilege (of exemption from adverse suit and legal process) may be waived, as by appearing and pleading otherwise than to the jurisdiction, or by bringing an action, in which case the court may order the plaintiff to give security for costs " In Mighell vs. Sultan of Johore (1894, 1 Q.B. 149), which is referred to in the case of Duff Development Co. vs. Kelantan Government (1924 A.C. 797), it was held that the submission by a sovereign to be effective must take place when the jurisdiction was invoked and not earlier, and that when a question of jurisdiction was raised by him, there could be no enquiry by the court into his conduct or actions prior to that date. This principle seems to have been approved by their Lordships who decided the case just quoted. Thus, the principle, which emerges on the authority of English courts is that a sovereign of an independent State is not amenable to the jurisdiction of the courts of another independent and sovereign State, but this privilege can be waived, if the sovereign submits to the jurisdiction, when it is invoked and not earlier. It has, therefore, got to be found whether, for the purposes of this suit, the Dominion of India could be said to be an independent foreign State vis-a-vis Bharatpur State, and if so, whether the said Dominion waived the privilege of not being amenable to courts in the Bharatpur State. 14. It was argued by the learned counsel for the appellant that Bharatpur State was an Indian State prior to the coming into force of the Constitution of India, and was a foreign State vis-a-vis British India. The suits could not, therefore, be brought against the Dominion of India in Bharatpur State courts on the dates on which they were filed. On behalf of the respondent, it was argued that in the first instance Bharatpur State could not be said to be an independent sovereign State, and whatever might be said of the status of the State before it acceded to the Dominion of India a little before the independence of India on the 15th of August, 1947, on its accession it became a part of India having accepted certain matters in respect of which the federal authority of India was invested with the powers of legislating. By the Instrument of Accession signed by His Highness the Maharaja of Bharatpur like the rulers of many other States, Bharatpur State acceded to Indian Dominion a little before the independence of India. A form of this Instrument of Accession is given in Appendix VII to the White Paper on Indian States issued by the Government of India, Ministry of States, pages 165 to 168. A form of this Instrument of Accession is given in Appendix VII to the White Paper on Indian States issued by the Government of India, Ministry of States, pages 165 to 168. According to this Instrument of Accession, Bharatpur State acceded to the Dominion of India, and authorised the Dominion to make laws for Bharatpur State in respect of defence, external affairs, communications and other ancillary matters given under headings A, B, C and D respectively on pages 171-172. After this accession Bharatpur State could not be said to be a foreign State vis-a-vis the Dominion of India, nor could the- Dominion of India be said to be a foreign State vis-a-vis Bharatpur State. It was further argued that the principle on which the sovereign of a foreign State is considered to be exempt from the jurisdiction of the courts of another State is due to the fact that even if a judgment is obtained, it would be ineffective, as it could not be executed against such foreign State. After the extinction of Bharatpur State on its merger with Matsya Union, and thereafter with the present Rajasthan State, the decrees of Bharatpur courts could be executed anywhere in India, and, therefore, the principle on which the sovereign of a foreign State was given this exemption no longer existed, and so in the changed circumstances, the decree of the lower court was perfectly valid even assuming that the Dominion of India was a foreign State in relation to Bharatpur State on the date when the actions were brought. Further, it was argued that in any case the Dominion of India waived the privilege of exemption from action when it submitted to the jurisdiction of Bharatpur court by filing a written statement not only questioning its jurisdiction, but also raising all pleas affecting the merits of the case, and by making appearance in the case throughout the suit. After having got a judgment against itself on merits it cannot now say that the lower court had no jurisdiction to hear and decide the suits. 15. As regards the first contention of the learned counsel for the respondent, it can certainly be said that even before the date of accession the relations between British India and Bharatpur State were not exactly such as are found between two independent and sovereign States. 15. As regards the first contention of the learned counsel for the respondent, it can certainly be said that even before the date of accession the relations between British India and Bharatpur State were not exactly such as are found between two independent and sovereign States. I need not, however, examine the status of Bharatpur State vis-a-vis British India before the date of accession, because before the two suits were filed Bharatpur State had acceded to the Indian Dominion. According to the terms of the Instrument of Accession, a form of which finds place at pages 165 to 168 in Appendix VII to the White Paper on Indian States issued by the Government of India, Ministry of States, the State which acceded to the Dominion of India gave the Dominion authority to legislate on the following subjects :— A-Defence, B-External Affairs, C-Communications, and D-Ancillary matters. Under the last heading, No. 4 is as follows :— "Jurisdiction and powers of all courts with respect to any of the aforesaid matters but, except with the consent of the Ruler of the acceding State, not so as to confer any jurisdiction or powers upon any courts other than courts ordinarily exercising jurisdiction in or in relation to that State." Thus, by the Instrument of Accession power was assumed by the Dominion of India to make laws for Bharatpur State inter alia regarding jurisdiction and powers of all courts with respect to any of the matters on which by the Instrument of Accession the Dominion Legislature was given power to make laws for Bharatpur State. Of course, in matters other than those given in the Schedule on page 171 of the White Paper, Bharatpur State retained its autonomy, but all the same it cannot be said that Bharatpur State after the accession remained an independent foreign State. In matters given in the Schedule Bharatpur State became just as much a part of India as any other territory within the former British India excepting that in matters not coming under the Schedule, greater autonomy was allowed to it than to the provinces of British India. After the accession, therefore, the Dominion of India could not be said to be an independent foreign State vis-a-vis Bharatpur State or vice versa. After the accession, therefore, the Dominion of India could not be said to be an independent foreign State vis-a-vis Bharatpur State or vice versa. Moreover, in the language of item No. 4, under the heading D, of the Schedule, referred to above, it is implicit that the Dominion Government had no objection to Bharatpur State courts ordinarily, exercising jurisdiction in or in relation to that State in matters coming under the Schedule. Of course, if the Dominion Legislature intended to confer jurisdiction and powers in those matters on any other courts, the consent of the Ruler of the State bad to be obtained. A little before the independence of the 15th of August, 1947, the railway lands belonging to the Indian Government lying within the territories of the State were ceded back to the State, and the State got jurisdiction over suits relating to causes of action arising within the railway lands. The District Judge, Bharatpur, was empowered by the Bharatpur State to hear such cases. The notification was published in the Bharatpur State Gazette dated October 1, 1947 as No. 23, Vol. 38, page 293. The court of the District Judge was also the court ordinarily exercising jurisdiction in or in relation to Bharatpur State in regard to the cases of the valuation of the present suit. Of course, before the railway lands within Bharatpur State were ceded back to Bharatpur, there were special courts created by the Indian Government to entertain and hear such suits, but after the cession back of the territory, those courts no longer had jurisdiction to hear such suits and the District Judge, Bharatpur, had the power both ordinarily and also in view of the above notification of Bharatpur Government. The present suits are the suits in respect of the responsibility of administration of B.B. & C.I.&E.I. Rlys. as carriers of goods, & after the cession of rly. lands to Bharatpur State & the accession of Bharatpur State to India, the court of the District Judge had perfect jurisdiction to entertain the suit of the present nature, & the Dominion Government could not object to the jurisdiction of that court on the ground that the Dominion of India was a foreign sovereign State vis-a-vis Bharatpur State. lands to Bharatpur State & the accession of Bharatpur State to India, the court of the District Judge had perfect jurisdiction to entertain the suit of the present nature, & the Dominion Government could not object to the jurisdiction of that court on the ground that the Dominion of India was a foreign sovereign State vis-a-vis Bharatpur State. I am strengthened in this view also by the provisions of the Indian Railways (Amendment) Act (No. XXI of 1948) (hereinafter to be referred to as the Amendment Act). The necessity for this legislation arose from the fact that most of the Indian States acceded to the Dominion of India, and communications, which included federal railways, was one of the subjects, in relation to which the Dominion of India was to exercise powers in the acceding States. By sec. 2 of the Amendment Act, the Railways Act was extended to the whole of India, which meant that the acceding States were also brought under its operation. In sec. 8-A a provision, similar to that relating to Central Government and the provinces, was added in relation to acceding States as well. In sec. 79, the words "an acceding State" were added. Similarly sec. 134, as it then stood, was substituted by another sec. 144, by which it was provided that in the application of Railways Act to any Acceding State references to the provincial Government in clause (18) of sec. 3, and in secs. 11, 12, 51 and 83, shall be considered as reference to the Government of the Acceding State, and references to an enactment in force in the provinces of India but not in force in the Acceding State shall be construed as references to the corresponding law, if any, of that State. It is thus clear that the Dominion Legislature considered the Acceding States on par with the provinces in the application of the Railways Act after the accession of the States to the Dominion of India. 16. Even assuming that Bharatpur State was a foreign independent State vis-a-vis Dominion of India even after the accession, the Dominion of India submitted itself to the jurisdiction of the court of the District Judge, when it filed a written statement not only raising the question of jurisdiction, but also raising all possible pleas relating to merits. 16. Even assuming that Bharatpur State was a foreign independent State vis-a-vis Dominion of India even after the accession, the Dominion of India submitted itself to the jurisdiction of the court of the District Judge, when it filed a written statement not only raising the question of jurisdiction, but also raising all possible pleas relating to merits. Not only this, the Dominion of India also contested the suit on all the issues, produced evidence, and cross-examined the witnesses for the plaintiff on all possible points. In some eases, it has been held that even if a foreign State or a foreigner makes appearance and contests only the question of jurisdiction, he would be considered to have submitted to the jurisdiction of the foreign court. It was so held in the case of Harris vs. Taylor [ (1915) 2 K.B. 580 (C.A.) ]. In that case a suit was brought in the High Court of the Isle of Man against a defendant, who was a resident of England. The defendant appeared "conditionally", and applied to the court to set aside the order for service out of the jurisdiction and the writ on the ground, inter alia, that the defendant was domiciled in England. The application was dismissed. The defendant took no further part in the proceedings, and the plaintiff eventually recovered judgment in the action for damages and costs. The plaintiff then brought an action against the defendant to enforce the judgment. It was held that the defendant by reason of his application to the Isle of Man Court, had voluntarily submitted to the jurisdiction of that Court and that the judgment was, therefore, enforceable against him in England. In the case of V. Subramania Aiyar vs. S.C. Annasami Iyer and others (A.I.R. 1948 Madras 203), the plaintiff filed a suit in Trivandrum Court. The defendant did not appear. The plaintiff got a commission issued to the Court at Sri-vaikuntam to have the defendant summoned and examined as a witness. He, however, engaged a counsel, objected to the questions put to him in his examination and finally got himself cross-examined and raised a plea in the course of cross-examination which, if it had been accepted by the Court would have ended in the dismissal of the suit. He, however, engaged a counsel, objected to the questions put to him in his examination and finally got himself cross-examined and raised a plea in the course of cross-examination which, if it had been accepted by the Court would have ended in the dismissal of the suit. It was held that— "The commission evidence was part of the record of the case in the Trivandrum court and when the defendant voluntarily gave materials which formed the record of the case his act amounted to submission to the jurisdiction of Trivandrum court." In the present case it is not necessary for me to go so far, as the Dominion of India has not appeard simply to question the jurisdiction of the lower court. It has taken all possible pleas on merits and fought out the case on merits also. Having obtained a judgment against it on merits, the Dominion of India cannot now say that the lower court had no jurisdiction in the case. From the judgment of the learned District Judge, it appears that no such question as has been raised before this Court with regard to jurisdiction was pressed at the time of arguments, and the only ground on which jurisdiction was questioned was that no cause of action had arisen against any of the railways within the jurisdiction of the lower court. The Dominion of India, therefore, will be held to have submitted to the jurisdiction of the lower court, and cannot question it now in this appeal on the ground that the Dominion of India was a foreign State vis-a-vis Bharatpur State, and could not, therefore, be sued in Bharatpur State courts by virtue of the principles of international law. For this I am supported by a ruling of the Calcutta High Court in the case of Chormal Balcnand Firm, Chowrahat vs. Kasturi Chand Seraoji and another [A.I.R. 1938 Calcutta 511]. It was held in that case that— "If a non-resident defendant appears in a foreign Court, pleads that that Court has no jurisdiction and also pleads to the merits, he submits to the jurisdiction of that Court voluntarily. Having taken the chance in that Court, he cannot be allowed to turn round and impeach the judgment on the ground of incompetency of the Court passing it when it is sought to be enforced in another country." 17. Having taken the chance in that Court, he cannot be allowed to turn round and impeach the judgment on the ground of incompetency of the Court passing it when it is sought to be enforced in another country." 17. Again, in the case of Rama Aiyer and another vs. Krishna Patter [A.I.R. 1917 Madras 780], it was decided by a Full Bench that- Where a defendant submits himself to the jurisdiction of a foreign Court and takes the chance of a judgment in his favour, there is a duty cast on him to obey that judgment if it goes against him; but where his appearance is not voluntary but brought about under duress, the case is treated as though he had not appeared." 18. In that case the defendant appeared in a foreign court under protest because he did not want to be arrested when he went there on business, and the decree having been passed against him, the decree-holder applied in British India under sec. 44 of the Code of Civil Procedure for execution thereof. It was held that— "The mere intention of avoiding an inconvenience that might happen in the future did not make the defendants appearance involuntary and the decree was binding upon him." 19. In the case of Harchand Panaji vs. Gulabchand Kanji [A.I.R. 1914 Bombay 111 (2)], it was held that— "A decree passed against a person who voluntarily submits to the jurisdiction of a foreign Court can, on transfer, be executed in the Court within whose jurisdiction he resides." 20. In that case too, objection was taken to the suit on the ground of jurisdiction as well as on other matters. 21. No doubt these cases relate to a non-resident foreigner, but I do not think that in principle there is any difference, when a suit is brought against a foreign sovereign. It is clear from the extract hereinbefore given from the Halsburys Laws of England, Volume 6, 1909 Edition, Part V, Article 662, as also from the observations in the case of Mighell vs. Sultan of Johore [ (1894) 1 Q.B. 149 ]. It is clear from the extract hereinbefore given from the Halsburys Laws of England, Volume 6, 1909 Edition, Part V, Article 662, as also from the observations in the case of Mighell vs. Sultan of Johore [ (1894) 1 Q.B. 149 ]. My conclusion is that, in the first instance, Bharatpur State, after its accession, which took place before the two suits were filed, became a part and parcel of India, so far as the subjects given in the Schedule to the Instrument of Accession are concerned, and one of those subjects is communications, which includes federal railways, such as B.B. & C.I. and E.I. Railways. The court of the District Judge, therefore, had perfect jurisdiction in the case. Moreover, even if the Indian Dominion were a foreign independent State vis-a-vis Bharatpur State on the date the suits were brought, the Dominion of India waived the privilege of immunity from suit in Bharatpur State courts by filing a written statement not only on the point of jurisdiction, but also on all the points relating to the merits of the case, and by making appearance and fighting out the case on all grounds thereafter. 22. Reliance was placed upon Gaekwar Baroda State Railway vs. Hafiz Habib-ul-Haq and others [A.I.R. 1938 Privy Council 165] in order to show that no waiver on the part of the Dominion of India could make the suits maintainable against it. Their Lordships, however, in the said case were considering the provisions of secs. 86 and 87 of the Code of Civil Procedure, and it was held that— "The provisions in secs. 86 and 87 are statutory and imperative, and having regard to the public purposes which they serve, they cannot be waived. 23. Sec. 86 of the Code of Civil Procedure, however, does not apply to a foreign sovereign. It applies to a Sovereign Prince, Ruling Chief, or an ambassador. The case of a foreign sovereign is not governed by sec. 86 or 87, and is to be governed by the principles of international law, which, as has been said above, takes away the privilege of a foreign sovereign not to be sued in a foreign and independent State, if there is submission to jurisdiction on the part of such foreign sovereign. 24. 86 or 87, and is to be governed by the principles of international law, which, as has been said above, takes away the privilege of a foreign sovereign not to be sued in a foreign and independent State, if there is submission to jurisdiction on the part of such foreign sovereign. 24. In the above view, it is unnecessary to discuss the various changes which took place by virtue of Bharatpur State being integrated with Matsya Union, and thereafter with the present Rajasthan State, and ultimately by the Constitution of India coming into force, which provided that Part B States were as much parts of India as Part A States. The present Rajasthan State, which includes the former Bharatpur State is a Part B State under the Constitution of India. The subsequent changes made the Dominion of India still more amenable to the jurisdiction of Part B State Courts. But this is only by the way, because it has been held that even on the dates he suits were brought the Dominion of India could be sued in the court of District Judge, Bharatpur, in the present case. 25. Coming to the second point whether the plaintiff failed to prove that he was the owner of the two consignments. I do not find any life whatsoever in this objection. The plaintiff has proved by his evidence that the goods consigned belonged to the joint family business of the plaintiffs Hindu family, and the plaintiff is the karta of that family. This evidence consists of the statement of Matoli Ram, plaintiff, Kalyan Prasad, Goods Clerk, Haldhar Sahai, Butwal Customs, Panna Lal and Hazari Lal. Moreover, the Railway Receipts in both the suits were issued and delivered to the plaintiff, who was also the consignee. No evidence was produced by the defendant to rebut the plaintiffs evidence. This point was, therefore, rightly decided by the learned District Judge in favour of the plaintiff. 26. Then comes the third question, whether the plaintiff did not demand delivery either at Bangaon or at Phulbari. No evidence was produced by the defendant to rebut the plaintiffs evidence. This point was, therefore, rightly decided by the learned District Judge in favour of the plaintiff. 26. Then comes the third question, whether the plaintiff did not demand delivery either at Bangaon or at Phulbari. There is the evidence of Hazari Lal for the plaintiff, which has been believed by the lower court, and stands unrebutted that he is one of the members of the plaintiffs joint Hindu family, and as such one of the co-parceners in the busi-ness, that he went both to Bangaon and Phulbari, and demanded delivery, but at Bangaon delivery was not at all given, and at Phulbari only 102 bags out of the consignment of 200 bags were delivered. There is no rebutting evidence on behalf of the defendant. It is clearly proved by the evidence on the record that no delivery was made at all of the consignment booked for Bangaon, and only 102 bags were delivered out of the consignment of 200 bags booked for Phulbari. This objection too has no force, and was rightly overruled. 27. Coming to the fourth point that Risk Notes A and C absolved the defendant from liability, it would be found on a perusal of Risk Note A that it does not exempt the railway from liability for the non-delivery of the whole or part of the goods consigned. In the said Risk Note, the words used are that "the consignor agrees to hold the Railway Administration harmless and free from all responsibility for the condition in which the goods may be delivered to the consignee at destination and for any loss arising from the same except upon proof that such loss arose from misconduct on the part of the Railway Administrations servants." In neither of the two cases is the plaintiff holding the Railway Administration responsible for the condition in which the goods were delivered and for any loss arising from the same. Here the plaintiff has sued the defendant on the ground that the whole of the consignment meant for Bangaon was not delivered at all to the plaintiff, and that 98 bags out of the consignment meant for Phulbari were not delivered. I find nothing in Risk Note A to exempt the Railway Administration from the liability in such a case. Here the plaintiff has sued the defendant on the ground that the whole of the consignment meant for Bangaon was not delivered at all to the plaintiff, and that 98 bags out of the consignment meant for Phulbari were not delivered. I find nothing in Risk Note A to exempt the Railway Administration from the liability in such a case. Risk Note C too does not protect the Railway Administration from the responsibility for non-delivery. It simply protects the Railway from all responsibility for any destruction or deterioration of, or damage to, the consignment, which may arise by reason of the consignment being conveyed in open wagons, carts or boats during transit over the said Railway or other Railways working in connection therewith or during transit by any other transport agency or agencies employed by them respectively. In the present two suits, it is not the case of the plaintiff that the two consignments had been destroyed or deteriorated or any damage was done to them by reason of the consignments being conveyed in open wagons, carts etc. during transit over B.B. & C.I. or E.I. Railway. The defendant, therefore, can have no protection by virtue of the provisions of Risk Notes A and C. 28. Proceeding to point No. 5 that the plaintiff failed to prove what price he could get for the goods of the two consignments at Bangaon and Phulbari respectively at the time when they ought to have delivered, it was argued by the learned counsel for the appellant that there was no evidence whatsoever to prove what was the price prevailing of the goods of the two consignments at Bangaon and Phulbari respectively at the time when they ought to have been delivered at these two places. It was argued that the only evidence was that of Hazari Lal, whose presence at Bangaon and Phulbari was not established at the time when the goods ought to have been delivered at these two places. It was further argued that, in any case, Hazari Lal had no personal knowledge about the rates prevailing at the two places at the relevant time. There can be no doubt that the only evidence to prove the rates obtaining at Bangaon and Phulbari at the relevant time is that of the plaintiffs witness Hazari Lal. It was further argued that, in any case, Hazari Lal had no personal knowledge about the rates prevailing at the two places at the relevant time. There can be no doubt that the only evidence to prove the rates obtaining at Bangaon and Phulbari at the relevant time is that of the plaintiffs witness Hazari Lal. It is, however, proved that this witness went to Bangaon and Phulbari at the time when the goods ought to have been delivered there. In fact, he took the delivery of 102 bags out of the consignment of 200 bags meant for Phulbari. He has produced the writing of the Station Master, Phulbari, showing that 98 bags out of 200 bags were not delivered. This is Ex. P/10. His presence at Phulbari at the relevant time cannot, therefore, be disputed. He has sworn that the rate of mustard seeds prevailing at Phulbari at the time of delivery of 102 bags was from Rs. 30/- to 30/8/- per maund. He has also sworn that he wanted to sell the 102 bags at a minimum rate of Rs. 32/- per maund, but as the maximum rate at that time was Rs. 30/8/-, he did not sell the goods, but kept them with his Arhatia. There is no rebutting evidence on behalf of the defendants in this respect. Of course, the plaintiff could not produce any evidence from Phulbari in this respect but there is evidence to show that there was communal tension consequent upon the partition in that part at that time. It was, therefore, not easy for the plaintiff to produce any evidence from Phulbari. However, the plaintiffs evidence in the shape of the statement of Hazari Lal, who had been to Phulbari at the relevant time, was considered by the District Judge to be sufficient to prove the rates in,the circumstances of the case, especially when there was no rebutting evidence on behalf of the defendant. I do not think that in this the learned District Judge was unjustified As regards Bangaon too, it is also in that part of the country which was affected by communal disturbances on account of the partition of the country. From Bangaon too, therefore, it was not easy to produce any evidence as shown by the plaintiff. I do not think that in this the learned District Judge was unjustified As regards Bangaon too, it is also in that part of the country which was affected by communal disturbances on account of the partition of the country. From Bangaon too, therefore, it was not easy to produce any evidence as shown by the plaintiff. The unrebutted evidence for the plaintiff in the shape of the statement of Hazari Lal proves that the witness being a member of the joint Hindu family of the plaintiff and having an interest in the business went to Bangaon, and asked for delivery at the relevant time, but no delivery was given, because the goods had not reached the place. He found out the rates of rape seeds prevailing there, and it ranged from Rs. 30/- to 31/- per maund. It was argued that this witness could not have personal knowledge of the rates, and those persons from whom he ascertained the rates ought to have been produced. According to the statement of this witness, he went to Bangaon at the relevant time, and no delivery was given to him, as the goods were not received at Bangaon. He went to the bazar and found out that the rates prevailing were from Rs. 30/- to 31/- a maund. There is no rebutting evidence about the rates prevailing at Bangaon at that time. The witness has been believed by the lower court. Under the circumstances of the case, I do not find that the lower court was unjustified in considering the evidence of this witness to be sufficient for the rates at Bangaon at the relevant time. It was argued by the learned counsel for the appellant that the plaintiff did not produce his account books, and, therefore, presumption should be drawn against him. I do not think that the account books of the plaintiff could have been able to show the rates prevailing at Phulbari and Bangaon at the relevant time, as it is not the plaintiffs case that any of his goods were sold at Bangaon or Phulbari at that time. No presumption in this respect can, therefore, be drawn against the plaintiff from the non-production of his account books. No presumption in this respect can, therefore, be drawn against the plaintiff from the non-production of his account books. I do not find any justification in disagreeing with the learned District Judge in so far as he has found that the rate of rape seed at Bangaon at the relevant time was Rs. 30/- per maund, and that of mustard seed at Phulbari was also Rs. 30/- par maund. 29. Coming to the last contention that notices required by sec. 77 of the Railways Act and by sec. 80 of the Code of Civil Procedure were not served on the defendant, I find it proved from the plaintiffs evidence that notices under sec. 80 of the Code of Civil Procedure were served on the defendant in accordance with law in both the suits. The plaintiff has produced a copy of notice Ex. Z in suit No. 15, and Ex. P/5 in suit No. 16. The original notices were not filed by the defendant. From these copies it appears that the notices were in accordance with sec. 80 of the Code of Civil Procedure. As regards the service of the notices on the defendant, it is proved from the entries made in the outward registers kept in the Railway Boards office, copies of which, Exs. P/Y and P/Z have been filed by Kedar Nath, Noting Assistant, Railway Board, in suit No. 15 produced by the plaintiff, that a notice No. R 1155/RM/47 was sent by Mr. Rajeshwar Nath Jindal, Advocate, Balenganj, on behalf of the plaintiff, and was received in the office of the Railway Board. From the copy, Ex. Z, it appears that four notices were sent, one being No. F. 1152/RM/47, addressed to the General Manager, B.B. & C.I. Railway, the other No. F. 1153/RM/47 to the General Manager, E.I.R., the third No. F. H54/RM/47 to B. & A. Railway, Calcutta, and the fourth No. F 1155/RM/ 47 to the Secretary, Central Government, New Delhi. It is proved from a card dated 12th November 1947, from the Chief Traffic Manager to Mr. Rajeshwar Nath Jindal that the notice No. F. 1152/RM/47 was received by the General Manager, B.B. & C.I. Railway, and from the entries in the outward register, Exs. It is proved from a card dated 12th November 1947, from the Chief Traffic Manager to Mr. Rajeshwar Nath Jindal that the notice No. F. 1152/RM/47 was received by the General Manager, B.B. & C.I. Railway, and from the entries in the outward register, Exs. P/Y and P/Z it is proved that notice dated 13th October, 1947, and No. F. 1155/RM/47 was received in the Railway Boards office, and forwarded to the General Manager E.I. Railway. Postal receipts No. 558 addressed to the Secretary, Central Government, No. 559 addressed to the General Manager, E.I.R,, and No. 560 addressed to the General Manager, B.B. & C.I.R. have also been produced. In suit No.16, four acknowledgments for registered notices addressed to the General Manager, B.B. & C.I.R., General Manager, E.I R., General Manager, B. & A.R., and the Secretary, Central Government, have been produced. They are Exs, P/l, P/2, P/3 and P/4. The defendant contends that, in fact, only one notice was sent, and not two, and, therefore, one of the suits is bad for non-service of notice under sec. 80 of the Code of Civil Procedure. It is true that the plaintiff has produced only postal receipts in suit No. 15 and postal acknowledgments in suit No. 16. It may be that the postal receipts filed in suit No. 15-eorrespond to the postal acknowledgments filed in suit No. 16. The plaintiffs explanation, however, is that both the notices to each of the four authorities were enclosed in the same cover, and, therefore, only one receipt and one acknowledgment in respect of each exists. The reason for this is said to be that as notices in both the suits were sent to the same authority, they were enclosed in one cover. It has been shown that in suit No. 15, the four notices bore Nos. F. 1152 to 1155/RM/47, and in suit No. 16, the four notices bore Nos. from 1156 to 1159. The notice No. F. 1155 in suit No. 15 was addressed to the Secretary, Central Government, New Delhi, as appears from the copy Ex. Z. Similarly, the notice No. F. 1159 in suit No. 16 was addressed to the Secretary, Central Government, New Delhi, as is proved by Ex. P/5. from 1156 to 1159. The notice No. F. 1155 in suit No. 15 was addressed to the Secretary, Central Government, New Delhi, as appears from the copy Ex. Z. Similarly, the notice No. F. 1159 in suit No. 16 was addressed to the Secretary, Central Government, New Delhi, as is proved by Ex. P/5. The copies of entries in the outgoing register, Exs P/Y and P/Z, filed in suit No. 15 show that the notice No. F. 1155/RM/47 was received in the Railway Boards office. It is proved by the copy of the entry in the outgoing register, Ex. P/l filed in suit No. 16 that the notice No. F. 1159/RM/ 47 was received in the Railway Boards office. This notice was addressed, as already said, to the Secretary, Central Government. The plaintiffs contention that there were two separate notices, one No. F. 1155 and the other No. F.1159, which were addressed to the Secretary, Central Government, in the two suits, is borne out by the entries in the register of the Railway Board itself. When the learned counsel for the appellant was confronted with these entries, he himself had to concede that two separate notices were in fact received in the Railway Boards office. I, therefore, hold in common] with the lower court that a separate notice under sec. 80 of the Code of Civil Procedure in each case was served as required by law, and neither of the two suits was, therefore, bad for non-service of such notice. 30. Coming to the question whether a notice under sec. 77 of the Railways Act was necessary, and if so, whether it was served on the Railway Administration, I agree with the lower court that because the present two cases are of non-delivery, no notice under sec. 77 of the Railways Act was necessary. A notice under sec. 77 of the Railways Act is necessary for a refund of an over-charge in respect of animals or goods carried by railway or for compensation for the loss, destruction or deterioration of animals or goods delivered to be so carried. In neither of the two suits is there any claim for a refund of an overcharge or for compensation for the loss, destruction or deterioration of animals or goods delivered to be carried by the railway. In neither of the two suits is there any claim for a refund of an overcharge or for compensation for the loss, destruction or deterioration of animals or goods delivered to be carried by the railway. The case of the plaintiff in both the suits is that of non-delivery, and in such cases a notice under sec. 77 of the Railways Act is not necessary. For this I find support from a ruling of the Division Bench of the Allahabad High Court, in the case of Secretary of State vs. Firm Daulat Ram Makhan Lal (A.I.R. 1937 Allahabad 632), in which it was held that— "Where a suit is brought against a Railway Company for compensation for nondelivery or mis-delivery of certain goods consigned to it, a notice as required by sec. 77, Railways Act, is not necessary as the suit is not one for loss destruction or deterioration." and also from a ruling of the Division Bench of the Patna High Court in the case of The Governor-General in Council vs. Kasiram Marwari (A.I.R. 1949 Patna 268), in which too it was laid down that— "Non-delivery does not constitute loss, within the meaning of sec, 77, and no notice under that section is necessary in a suit for damages for non-delivery of a consignment." 31. Similarly it was held by Harries C.J in Governor-General in Council representing B.A. Railway vs. Sarbeswar Das and another (A.I.R, 1949 Calcutta 420) that- "Sec. 77 has no application to a case of short delivery where the short delivery is not due to loss. But it will apply to a case where part of the consignment has been lost by the railway company in the process of carrying it from the point of loading to the point of unloading." 32. It is the case of neither of the two parties that the consignments were lost by the railway company, and, therefore, in accordance with all these three rulings, with which I respectfully agree, I hold that no notice under sec. 77 of the Railways Act was necessary in the present case. I am not unmindful of some of the rulings cited by the learned counsel for the appellant in which it was held that even in such cases a notice under sec. 77 is necessary. 77 of the Railways Act was necessary in the present case. I am not unmindful of some of the rulings cited by the learned counsel for the appellant in which it was held that even in such cases a notice under sec. 77 is necessary. Two of these rulings are reported in Hill, Sawyers and Company vs. The Secretary of State (61 Indian Cases 926) and Messrs. Sheo Dayal Niranjan Lal vs. Great Indian Peninsula Railway Company (97 Indian Cases 474). So far as the Allahabad ruling is concerned, it is not approved in a later decision of that Court reported in A.I.R. 1937 All. 632 quoted above. So far as the Lahore High Court ruling is concerned, the opinion has been based upon the interpretation of the word "loss" as including loss to the owner of goods. But in my opinion the word "loss" in sec. 77 does not include "loss to the owner". In its context, it clearly signifies loss by the Railway. If "loss" means loss to the owner or consignee, detention would be held covered by it and governed by the short limitation provided by sec. 77. It would in that case follow that the defendant railway might detain the goods in their possession or proceed to wrongfully convert them to their own use and still claim the benefit of sec. 77. With due respect to the learned Judges who held that the word "loss" in sec. 77 includes loss to the owner of goods, I am not prepared to accept this result. In the present case, both the suits were for a breach of contract to deliver, and the plaintiff did not say that the goods were lost, nor sued for compensation for such loss, and the defendant also did not plead that they had been actually lost. Sec. 77 of the Railways Act could not, therefore, be pleaded in bar of the claim. 33. It was last argued that according to the plaintiff, the defendant was also guilty of wrongful withholding or wrongful conversion of plaintiffs goods. The claim was, therefore, based on tort, and neither B.B. & C.I.R. nor E.I.R. was liable for damages. The Bengal Assam Railway has ceased to exist. Both Phulbari and Bangaon are in Pakistan, and therefore, the claim, if any, should have been lodged against the Dominion of Pakistan. I do not agree with this contention. The claim was, therefore, based on tort, and neither B.B. & C.I.R. nor E.I.R. was liable for damages. The Bengal Assam Railway has ceased to exist. Both Phulbari and Bangaon are in Pakistan, and therefore, the claim, if any, should have been lodged against the Dominion of Pakistan. I do not agree with this contention. In the first instance, the plaintiffs claim is based upon non-delivery of goods. The goods were entrusted at Bharatpur to B.B. & C.I. Railway. The B.B. & C.I. Railway has not produced any evidence to show that they passed out of its hands. Even if B.B. &.C.I. Railway made over the goods to E.I.R., it would have been the duty of E.I.R. to show that the goods passed out of its hands to the railway which is now the property of Pakistan. Both B.B. & C.I. and E.I. Railways belong to the Dominion of India, and so, unless it was proved that the goods were made over to a railway which is at present the property of Pakistan, B.B & C.I. or E.I. Railway remains liable. The contention of learned counsel for the appellant has no force. 34. Finally coming to the question as to what should be the measure of damages, I find myself unable to agree with the learned District Judge in the matter of interest. I do not think that the plaintiff has made out a case in which he should be entitled to interest, which he has claimed. In my opinion, the plaintiff was entitled to a decree for Rs. 11953/12/-(Rs. 11943/12/- on account of the price of goods at destination and Rs. 10/-costs of notices) in suit No. 15, and to a decree for Rs. 6698/8/- (Rs. 6688/8/-price of the goods at destination and Rs. 10/- costs of notices) in suit No. 16. 35. Both the appeals are partly allowed and the decrees of the lower court modified inasmuch as the plaintiffs claim in suit No. 15 of 1948 is decreed for the recovery of Rs. 11953/12/- instead of Rs. 12500/-, and his claim in suit No. 16 of 1948 is decreed for the recovery of Rs. 6698/8/- instead of Rs. 7000/-. The plaintiff shall get proportionate costs of both the courts in both the suits. Let a copy of this judgment be placed on the file of the connected case. Ranawat, J.—I agree.