JUDGMENT 1. THE present appeal arises out of a suit for compensation for non-delivery of the goods consigned. The suit was dismissed by the trial Court on the ground that no notice under section 77 of the Indian Railways Act was served upon the Railway administration. Hence the present appeal by the plaintiff. The facts are these: "A consignment of 5 bales of ready made garments were booked by the plaintiff to his relatives and agents defendants 2 and 3 for taking delivery of the goods for and on behalf of the plaintiff on the 14th July, 1953 from Haldibari to Calcutta, but the said consignment of goods was not delivered at the destination station, Sealdah. According to the plaintiff the non-delivery of the said consignment of goods was due to misconduct, gross carelessness and willful neglect on the part of the servants of the North Eastern and for Eastern Railway. The plaintiff claimed Rs. 17,308-4-0 as compensation for the non-delivery of the goods against the Union of India as re presenting the Eastern Railway and North Eastern Railway. Written statement on behalf of the Union of India was filed on 22nd November, 1954. The suit was contested primarily on two grounds, viz. (1) that valid notices under section 77, Indian Railways Act and section 80 of the Code of Civil Procedure had not been served ; (2) that the court had no jurisdiction to try the suit. The claim of the plaintiff was said to be inflated, and liability to damage was denied. There was also a suggestion that "the package in question did not and could not contain goods claimed to have been therein contained. " 2. TWO additional written statements were filed by the Union of India, one on the 22nd April, 1955 and the other on the 2nd June, 1955. The burden of the additional written statements is that the plaintiff in collusion with the Booking Clerk Sri C. L. Roy of Haldibari station managed to get the Rail way Receipt (Parcel-way Bill) issued in his favor fraudulently without actually tendering any bale of cloth for despatch, and that there was no record to show that the bales in question were received at or despatched from Haldi-bari Station. On the original pleadings the most important issues to be decided were whether the notices under section 77 of the Indian Railways Act, and section 80 of the Code of Civil Procedure were duly and properly served and whether the court had jurisdiction to try the suit. On the filing of the two additional written statements by the Union of India the following two issues were framed as issues nos. 7 and 8 : "7. Did the plaintiff actually tender any bale of cloth as alleged? 8. Was the bailment a genuine transaction?" these two additional issues were found by the trial court in favour of the plaintiff. On the question of jurisdiction too, the finding was in favour of the plaintiff. The trial court, how ever, dismissed the suit on the ground that no notice under section 77 of the Indian Railways Act was served" upon either of the two Railways, namely the North-Eastern Railway and the Eastern Railway prior to the institution of the suit. It may be pointed out that the proper service of notice upon the Union of India under section 80 of the Code of Civil Procedure was not disputed by the Union at the trial. It was argued before the trial court on behalf of the plaintiff that in the case of non-delivery there was no necessity of serving any notice under section 77 of the Indian Railways Act. The learned Judge relying on the decisions of our High Court reported in (1) 28 C. W. N. 438 (The Assam Bengal Railway Co. Ltd. v. Radhika Mohan Nath), (2) 35 C. W. N. 338 (Firm of Messrs. Duni Chand Ram Saran Das v. East Indian Railway and others) and (3) 49 C. W. N. 240 (Sristidhar Mondai v. The Governor General in council and others) rejected the above argument and held that even in the case of non delivery it was incumbent upon the consignor to serve notice upon the Railway Administration under section 77 of the Indian Railways Act before instituting the suit for compensation. The learned Judge concluded as follows: "I, therefore, hold that plaintiff must prove the service of valid and sufficient notice under section 77 of the Indian Railways Act upon both the Railways in order to have a judgment in his favour, if he otherwise succeeds on the merits of his case. " 3. The learned Judge concluded as follows: "I, therefore, hold that plaintiff must prove the service of valid and sufficient notice under section 77 of the Indian Railways Act upon both the Railways in order to have a judgment in his favour, if he otherwise succeeds on the merits of his case. " 3. THAT a notice under section 77 of the Indian Railways Act is' the condition precedent to the maintainability of a claim for compensation even in the case of non-delivery has not been seriously contested by the plaintiff-appellant in view of the recent decision of the Supreme Court on this paint in (4) Governor-General-in Council v. Musaddi Lal, A. I. R. 1961 S. . C. 725. Our attention was drawn on behalf of the Union of India to the latest decision of our High Court, in (5) Niranjan v. Union of India, 65 C. W. N. 876, where it has been pointed out that the conflict of decisions on this point not only between the different High Court but also between the different Benches of our High Court has been set at rest by the ruling of the Supreme Court in (4) Musaddi Lal's case, A. I. R. 1961 S. C. 725, We too feel that after the aforesaid decision of the Supreme, Court there is scarcely any scope for urging that notice under section 77 of the Indian Railways Act is not necessary in the case of non-delivery. So besides the question of jurisdiction the most important point to be decided in this appeal is whether any notice under section 77 of the Indian Rail ways Act was in fact served upon either of the two Railways, namely the North-Eastern Railway and the Eastern Railway within the time allowed by the said section. Ext. 5 is claimed to be such notice upon both the Railways. It is a letter written by the plaintiff, Jiban Ram Agarwalla (since deceased) to the Chief Commercial Superintendent, Eastern Railway, dated the 20th August, 1953. The date of delivery was the 14th July, 1953, so this letter was written well within six months from the date of delivery. The letter is quoted below :. Jiban Ram Agarwala. " The learned Judge took the view that Ext. 5 could not be construed to be a proper notice of claim for compensation as contemplated under section 77 of the Indian Railways Act. The letter is quoted below :. Jiban Ram Agarwala. " The learned Judge took the view that Ext. 5 could not be construed to be a proper notice of claim for compensation as contemplated under section 77 of the Indian Railways Act. The letter was addressed to the Chief Commercial Superintendent. Section 77 says that the claim to compensation is to be preferred in writing to the Rail way Administration. Section 140 of the said Act provides that any notice or other document required or authorised by this Act to be served on a Railway Administration may be served, in the case of a Railway Administration by the Government, on the Manager. 4. ACCORDING to section 3 (6) of the said Act "railway Administration" in the case of a railway administered by the Government, means the manager of the railway and includes the Government unless there is something repugnant in the subject or context. Beth the Railways involved in this case are administered by the Government. It may therefore plausibly be argued that in the present case the notice under section 77 should have been served upon the Manager, for the matter of that, upon the General Manager of both the Railways. But Ext. 5, assuming it to be a notice of claim within the contemplation of section 77 was addressed not to the General Manager but to the Chief Commercial Superintendent. Objection to the notice, it seeing was not taken before the trial court on the ground that it was addressed, not to the General Manager, but to the Chief Commercial Superintendent. At least there is no discussion on this point in the judgment appealed from. According to the learned Judge the notice was bad, not because it was addressed to the Chief Commercial Superintendent, but because it did not contain any claim for compensation. The plaintiff merely asked for an enquiry. The learned Judge is of opinion that a demand for enquiry cannot be construed as a claim for compensation. He seems to think that a notice under section 77, in order to be a valid notice, must contain, inter alia a definite demand for compensation for the loss arising out of non-delivery. So, let us first consider whether Ext. The learned Judge is of opinion that a demand for enquiry cannot be construed as a claim for compensation. He seems to think that a notice under section 77, in order to be a valid notice, must contain, inter alia a definite demand for compensation for the loss arising out of non-delivery. So, let us first consider whether Ext. 5 may be regarded as a notification of claim to compensation under section, 77, disregarding for the pre sent the fact that it was addressed, not to the General Manager, but to the Chief Commercial Superintendent. It is true that no claim for compensation, in express language, has been made in the said letter. It is therefore argued on behalf of the Railways that it can not be regarded as a notification of claim to compensation. We have how ever been referred to the recent decision of the Supreme court in (6) Jetmull Bhajraj v. D. H. Railway Co. Ltd., A. I. R. 1962 S. C. 1879 by the learned Advocate for the plaintiff. In that case a letter of July, 1946 addressed to the General Manager of the D. H. Railway was held to be a valid claim for compensation under section 77 of the Indian Railways Act. The relevant portion of the said letter was in these terms:- "We confirm our telegram sent to you and regret very much to inform you that we have as yet heard nothing in response thereto nor the part ninety bales have reached destination. Will you therefore, please take necessary action to cause the part consignment to reach destination immediately. " The opinion of the majority expressed by Mdholkar, J. is quoted below : "This letter clearly brings to the notice of the administration that 90 bales out of the consignment of 259 bales has not reached their destination, more than that, by this letter the appellant re quested the General Manager of the D. H. Railway to take appropriate action without delay. It is true that a claim for compensation has not been made by the appellant in this notice. In our view such a claim must be deem ed to be implied in the notice. The reason is obvious. It is true that a claim for compensation has not been made by the appellant in this notice. In our view such a claim must be deem ed to be implied in the notice. The reason is obvious. Where a person says that his consignment has not been delivered as it should have been delivered according to the contract between him and the railway administration, he must be regarded as making it clear that he would be holding the railway administration to its contractual engagement which necessarily involves the payment of damages for breach of that engagement. In our opinion, therefore, not only the object underlying S. 77 is satisfied by the letter dated July 9, 1946 but also a claim for compensation is implied in that letter. "sarkar, J. in delivering the minority judgment took a contrary view. We are however concerned with the majority opinion which took the view that a notice under sec. 77 should be liberally construed. In the judgment of the majority also occurs the following passage: "in enacting the section the intention of the legislature must have been to afford only a protection to the railway 'administration against fraud and not to provide a means for depriving the consignors of their legitimate claims for compensation for the loss of or damage caused to their consignments during the course of transit on the railways. " It is contended on behalf of the plaintiff that if the letter quoted in the majority judgment in (6) Jetmull's case, A. I. R. 1962 S. C. 1879 is a good notice of claim under section 77 of the Indian Railways Act, there is no reason why Ext. 5 in the instant case should not be held to be a good notice. It is pointed out that Ext. 5 also brings to the notice of the Railway Administration that the five bales of garments have not reached their destination and that there is a request for early delivery. It is therefore, concluded that a claim for compensation must be implied in Ext. 5 and that consequently it must be regarded as a proper notice under section 77. The learned Advocate for the Railways too is not in a position to seriously dispute the above conclusion. We too agree with the plaintiff's counsel that Ext. It is therefore, concluded that a claim for compensation must be implied in Ext. 5 and that consequently it must be regarded as a proper notice under section 77. The learned Advocate for the Railways too is not in a position to seriously dispute the above conclusion. We too agree with the plaintiff's counsel that Ext. 5 is not open to objection on the ground that it does not contain any claim for compensation. The next question for determination is whether Ext. 5 as a notice under section 77 is void and inoperative being addressed, not to the General Manager but to the Chief Commercial Superintendent. We have already point ed out that no objection to Ext. 5 was taken on the ground that it was not addressed to the General Manager. This point, however, has been strenuously argued before us by the counsel for the Railways. The three recent Division Bench decisions of our High Court reported in (7) 55 C. W. N. 662 (Union of India v. Indumati), (8) 60 C. W. N. 985 (South India Co-operative stores Ltd. v. Union of India) and (9) 65 C. W. N. 876 (Niranjan v. Union of India) leave no room for doubt that a notice under section 77 cannot be a valid notice of claim unless it is sent to the General Manager. This is what Guha, J. said in (7) Union of India v Indumati, 55 C. W. N. 662: "In the case of a Railway administered by the Government, as in the present case, notice has to be given to the Manager of the Railway, and that term, in our opinion, means not any sectional or departmental Manager like the Chief Commercial Manager, but the Principal or General Manager who is in overall charge of the Railway administration concerned in (1) A. B. Rail way co. Ltd. v. Radhika Mohan Nath, (28 C. W. N. 438), it was held that a notice to the Traffic Manager would not amount to a notice to the Agent or General Manager. " Similar view was expressed by Das Gupta, J. in the case of the (8) S. I. Co-operative Stores Ltd., 60 C. W. N. 985. His Lordship observed as follows: "We are [bound by the authorities to hold that a notice on the Chief Commercial Manager did not amount to the preferment of a claim to the railway administration. " Similar view was expressed by Das Gupta, J. in the case of the (8) S. I. Co-operative Stores Ltd., 60 C. W. N. 985. His Lordship observed as follows: "We are [bound by the authorities to hold that a notice on the Chief Commercial Manager did not amount to the preferment of a claim to the railway administration. " 5. IN (9) Nixanjan's case, 65 C. W. N. 876 one of the arguments on Behalf of the claimant was that the service of the notice under section 77 of the Indian Railways Act upon the Chief Commercial Manager, who was held out by the Railway Administration as authorised to deal with claim of non-delivery of goods, was good enough service. This argument was repelled by Banerjee, J., who delivered the judgment, in these words: "There is nothing on the record to show that the administration of the railway concerned either expressly or by implication, held out the Chief Commercial Manager as the officer authorised to receive the notice under section 77 of the Indian Railways Act and to give relief to the plaintiff. We, therefore, repel also the second branch of the argument advanced on behalf of the appellant. " So the authorities cited above compel us to hold that a notice on the Chief Commercial Superintendent does not amount to the preferment of a claim to the Railway Administration. Therefore Ext. 5 cannot be regarded as a valid notice under section 77 as it is addressed not to the General Manager but to the Chief Commercial superintendent. We are not prepared to follow the opinion expressed by Henderson, J., sitting singly in (3) Sristidhar v. Governor-General-in-Council, 49 C. W. N. 240, that a notice served on the Chief Commercial Manager of a Railway who is responsible for investigating claims instead of on the Manager is a good notice on the Railway Administration under section 77. This also does not resolve the controversy between the parties. It is argued on behalf of the plaintiff that the Railway Administration and for the matter of that the Union of India waived the protection under section 77 and that the suit is not liable to be dismissed for non-service of proper notice under that section. To appreciate this argument it is necessary to state certain facts. It is argued on behalf of the plaintiff that the Railway Administration and for the matter of that the Union of India waived the protection under section 77 and that the suit is not liable to be dismissed for non-service of proper notice under that section. To appreciate this argument it is necessary to state certain facts. In paragraph 4 of the plaint it has been stated that notices of claim dated 20th August, 1953 and later claims on various dates thereafter and several reminders on different dates were sent to the Chief Commercial Superintendent, E. I. Rly. and Deputy Chief Commercial Superintendent, N. E. Rly. who are authorised and competent to dispose of the claim. In the written statement the averment that the Chief Commercial Superintendent, E. I. Rly. and the Deputy Chief Commercial Superintendent, N. E. Rly. are authorised and competent to dispose of the claim has not been specifically denied. 6. IT is therefore submitted on behalf of the plaintiff that there is admission by non-traverse that the Chief Commercial Superintendent, E. I. Rly. and Deputy Chief Commercial Superintendent, n. E. Rly. are authorised and competent to dispose of the claim. The plaintiff received letters dated 19th August, 1953, 10th September. 1953, 7th Sept., 1953, 18th Sept., 1953, 5th October, 1953, 6th Nov., 1953, 20th Feb. 1954 from the Chief Commercial Superintendent, Eastern Railway regarding the goods despatched from Haldibari, but in none of these letters was the plaintiff asked to take up the matter with the General Manager. No objection was raised on the ground that the plaintiff had not preferred his claim for compensation to the General Manager. So far as the Deputy Chief Commercial Superintendent, he sent a copy of his letter dated 13th September, 1953 addressed to the Chief Commercial Superintendent, eastern Railway to the plaintiff for information and direct communication with the Chief Commercial superintendent, Eastern Railway, and he sent another letter dated 18th September, 1953 acknowledging the receipt of the plaintiff's letter dated 14th September, 1953. In none of these letters was the plaintiff asked to take up the matter with the General Manager, nor was any objection taken on the ground that no claim for compensation had been preferred to the General Manager. It is therefore argued on be half of the plaintiff that the protection under section 77 was waived by both the Railways. In none of these letters was the plaintiff asked to take up the matter with the General Manager, nor was any objection taken on the ground that no claim for compensation had been preferred to the General Manager. It is therefore argued on be half of the plaintiff that the protection under section 77 was waived by both the Railways. In support of the theory of waiver reliance has been placed on the decision in (8) South Indian Co-operative Stores Ltd. v. Union of India, 60 C. W. N. 985. In that case the notice of claim was sent, not to the General Manager but to the Chief Commercial Manager who informed the claimant by a letter that the claim for compensation in respect of the loss could not be entertained because on enquiry he came to learn that there was no negligence or misconduct on the part of the Railway or its servants, the loss being entirely due to the leakage of the contents through the joints of old dented and rusted drums used as containers. The suit was dismissed by the trial court on the ground that the notice of claim on the Chief Commercial Manager did not amount to the preferment of a claim to the railway administration. On revision the High Court decreed the suit though their Lordships agreed with the trial court that a notice on the Chief Commercial Manager did not amount to a notice on the railway administration. Waiver of protection under section 77 was spelt out of the letter just noted. Das Gupta, J. observed as follows: "It is important the note that in this letter, the Chief Commercial superintendent refuses to entertain the claim on the ground that, there was no negligence or misconduct on the part of the railway or its servants but does not say that no claim can be entertained until and unless notice as required under section 77 has been proved. In my judgment this should be taken to amount to waiver by the Chief Commercial Superintendent of the protection of section 77 of the Indian Rail ways Act," His Lordship also dealt with the question whether the Chief Commercial Superintendent was competent to waive the protection under section 77 on behalf of the railway administration and the answer was in the affirmative, This is what Das Gupta, J. said or this point: "Quite clearly, the Chief Commercial superintendent was dealing with the claim for compensation as the agent of the railway administration--which term includes the defendant- the Union of India. Had he, as agent, any authority to waive, on behalf of the Union of India, the protection of section 77 ? From the notification produced before us by the learned Advocate for the defendant we find that the Chief Commercial Superintendent had authority to settle claims up to a sum of Rs. 5000. In my judgment, authority to settle such claims carries with it an authority to waive, in respect of such claims the protection of section 77 of the Indian Railways Act ; otherwise authority to settle claims would be un workable," 7. IN our opinion the instant case can be distinguished on facts from the case of (8) South India Co-operative Stores v. Union of India. In that case the claim of the consignor was rejected altogether on the ground that there was no negligence or misconduct on the part of the Railway or its servants. The doctrine of waiver was applied by their Lordships on such rejection. In this case neither the Chief Commercial superintendent, Eastern Railway nor the Deputy Chief Commercial Superintendent, north Eastern Railway came to any definite conclusion as to the claim. of the plaintiff at any time before the institution of the suit. Assuming that both these officers were authorized and competent to dispose of the claim they did not in fact finally dispose of the claim no question of waiver, in our opinion, arose in this case. We are not prepared to extend the doctrine of waiver to a case where the investigation as to the claim of the consignor remains pending at the date of the institution of the suit, as in (he present case. 8. THERE is however a weightier ground why we are not prepared to apply the doctrine of waiver in the present case. 8. THERE is however a weightier ground why we are not prepared to apply the doctrine of waiver in the present case. Das Gupta, J. in the case just cited has used the expression "waiver of the protection of section 77 of the Indian Railways Act. " which in our opinion means waiver of the notice under section 77 of the said Act. Notice under section 77 is for the protection of the Railway and it may reasonably be argued that the Railway, if it so chooses may waive the notice. Now the question is: Can the notice under section 77 be waived by any act antecedent to the filing of the suit by the consignor ? The question was discussed at great length in the case of (10) Mr. Bansi v. Governor General of India, 56 C. W. N. 83 decided by a Full Bench of our High Court. The following question was referred to the Full Bench: "whether service of notice under section 77 of the Indian Railways Act is part of the plaintiff's cause of action. " The question was answered in the negative. It was pointed out, inter alia, by their Lordships that as the absence of a notice under section 77 is a plea to be raised in the written statement, service of notice under that section cannot be regarded as a part of the cause of action. It is in this connection that their lordships had to consider the question of the waiver of notice under section 77. The main judgment was delivered by Has, J. in which the Harris, C. J. and Banerje, J., concurred. This is what Das, J. observed: "The question before us may be looked at from another point of view. The service of a notice of claim under section 77 of the Indian Railways Act is intended for the benefit and protection of the Railway Administration and may, therefore, be waived. Such waiver must be made in the suit for refund or compensation and cannot be prior thereto. The service of a notice of claim under section 77 of the Indian Railways Act is intended for the benefit and protection of the Railway Administration and may, therefore, be waived. Such waiver must be made in the suit for refund or compensation and cannot be prior thereto. " In order to show that the position stated by his Lordship was the correct position his Lordship quoted with approval from the decision of the Privy Council in Vellayan Chettiar v. The Government of the Province of Madras, 74 I. A. 223: 52 C. W. N. 27, the following passage: 'on the other hand, there appears to their Lordships to be no reason why the notice required to be given under section 80 should not be waived if the authority concerned thinks fit to waive it. It is for this protection that the notice is required, if in the particular case he does not require that protection and says so, he can lawfully waive his right. " In order to show that the waiver of notice under section 77 of the Indian Railways Act must be made in the suit and not prior thereto. Das, J. quoted with approval the following observations of Lord Simmons made for the purpose of repelling the argument in Vellayan Chetfiar's cafe that waiver might be inferred from earlier proceedings: "It is to be observed that the whole of the conduct noon which the appellants rely took nacre before even an effective suit was instituted. It could not be suggested that, until a suit is instituted, the question of proper notice or the want of it could be raised. " Das, J. pointed out that the principle regulating waiver of notice under section 80 of the Code of Civil Procedure applies with much greater force to a notice under section 77 of the Indian Hallways Act. Therefore, in the present case it cannot be said that the right to notice under section TV was waived before the institution of the suit, and there is nothing on record to show that the right has been waived after the institution of the suit. We are therefore not prepared to hold that the plaintiff may succeed by calling, in his aid the doctrine of waiver inspite of his failure to comply with the requirements of section 77 in serving notice upon the two Railway Administrations. We are therefore not prepared to hold that the plaintiff may succeed by calling, in his aid the doctrine of waiver inspite of his failure to comply with the requirements of section 77 in serving notice upon the two Railway Administrations. It may be noted in passing that the attention of their Lordships who decided the case of (8) South Indian Co-operative Stores Ltd. v. Union of India, 60 C. W. N. 985 relying on the doctrine of waiver was not called to the Full Bench decision in (10) Mr. Bansi v. Governor-General of India, 56 C. W. N. 83. There appears to be some conflict between these two decisions ; we are, however, bound to follow the decision of the Full Bench. Bachawat, J. also took the same view in (11) Radhamadhab v. Union of India. 61 C. W. N. 433 following the decision of the Full Bench. We are not prepared to accept, the argument based on waiver for another reason. It is clear at least that the Railway Administrations did not waive their right to notice under section 77 expressly. The plaintiff's contention now before us that they impliedly did what they did net do expressly. The burden therefore lies heavily on the plaintiff to establish the facts upon which they rely for raising the implication. But strangely enough no such issue was raised by the plaintiff at the trial before the court of first instance. The necessary averments for raising such issue are lacking in the plaint. So, in our opinion, the plaintiff should not be allowed to raise the question of waiver, a mixed question of law and fact, for the first time in appeal. Moreover the suit was instituted in the specific assertion that notices of claim were duly served and no evidence has been led with a view to establishing waiver. Another defect in the notice under section 77 has been pointed out by the learned Advocate for the Union of India, so far as the North Eastern Railway is concerned. Ext. 5 which is claimed to be a notice under section 77 is addressed to the Chief Commercial Superintendent, Eastern Railway; only a copy of Ext. 5 was sent to the Chief Commercial Superintendent, North Eastern Railway. Ext. 5 which is claimed to be a notice under section 77 is addressed to the Chief Commercial Superintendent, Eastern Railway; only a copy of Ext. 5 was sent to the Chief Commercial Superintendent, North Eastern Railway. Now the question is whether the copy sent for information and necessary action to the Chief Commercial Superintendent, North Eastern Railway, may be regarded as a preferment of claim for compensation to the Chief Commercial Superintendent of that Railway. It is argued on behalf of the respondent that when a notice is sent to one Railway a copy of that notice sent to another Railway cannot be regarded as a notice under section 77 on the Railway to which the copy is sent. We too are of opinion that when a claim for compensation is preferred in writing to one Railway, a copy of that written claim sent to another Railway cannot be regarded as a preferment of claim to the latter Railway. Ext. 5 on the face of it cannot be regarded as a notice of claim to the Chief Commercial Superintendent, North Eastern Railway. In the plaint it is stated that notice of claim dated 20th August, 1953 was sent to the Deputy Chief Commercial Superintendent, North Eastern Railway. If the copy of Ext. 5 is taken to be the notice of claim dated 20th August, 1953 then the said copy was sent not to the Deputy Chief Commercial Superintendent, but to the Chief Commercial Superintendent. Therefore, it seems, the plaintiff too does not regard the copy of Ext. 5 sent to the Chief Commercial Superintendent, north Eastern Railway as a notice of claim on that Railway. In the plaint there is no mention of any copy being sent to the Chief Commercial superintendent, North Eastern Railway on or about the 20th August 1953. The learned Advocate for the plaintiff however referred to Ext. 7, being a letter dated 13th September 1953 from the Deputy Chief Commercial Superintendent, North Eastern Railway to the Chief Commercial Superintendent, Eastern Railway, for the purpose of showing that a notice of claim dated 20th August, 1953 was in fact sent to the Deputy Chief Commercial Superintendent, North Eastern Railway. The first paragraph of that letter is in these terms: "Shri Jiban Ram Agarwala of Dinabazar, Jaipaiguri in his letter no. X dated 20th August, 1953 to this office has referred a claim of Rs. The first paragraph of that letter is in these terms: "Shri Jiban Ram Agarwala of Dinabazar, Jaipaiguri in his letter no. X dated 20th August, 1953 to this office has referred a claim of Rs. X on account of non-delivery. " It seems that a letter of claim dated 20th August was sent to the office of Deputy Chief Commercial Superintendent by the plaintiff. This letter however is not forthcoming. It is submitted on behalf of the plaintiff that the letter mentioned in para. 1 of Ext. 7 is none other than the copy mentioned in the endorsement on Ext. 5. The copy was sent to the Chief Commercial Superintendent whereas this letter appears to have been sent to the office of the Deputy Chief Commercial superintendent. It is in evidence that at the material time the office of the Chief Commercial Superintendent was at Gorakhpur and that of the Deputy Chief Commercial Superintendent was in Calcutta at 3, Kailaghat Street. From Ext. 5 it appears that the copy was sent to the Chief Commercial Superintendent at 3, Kailaghat Street, Calcutta. It is quite likely that the copy of Ext. 5 though meant for the Chief Commercial superintendent was actually delivered to the Deputy Chief Commercial Superintendent, who took it to be a letter of claim sent to his office. Or, it may be that a separate letter of claim dated 20th August 1953 and not the copy of Ext. 5 was sent to the office of the Deputy Chief Commercial Superintendent. If it were the copy that was sent to the Deputy Chief Commercial Superintendent, then the said copy cannot be construed to be a notice of claim to the Deputy Chief Commercial Superintendent, North Eastern Railway. If it were a separate letter sent to the Deputy Chief Commercial Superintendent, then also it cannot be construed as a notice of claim to him. The nature of that letter is to be ascertained from Ext. 7. Though in the first paragraph the letter has been stated to be a letter of claim, in the second paragraph it is stated that the claim is one for settlement by the Eastern Railway. Therefore if the letter (Ext. The nature of that letter is to be ascertained from Ext. 7. Though in the first paragraph the letter has been stated to be a letter of claim, in the second paragraph it is stated that the claim is one for settlement by the Eastern Railway. Therefore if the letter (Ext. 7) is read as a whole there cannot be any manner of doubt that though the letter referred to in para 1 is a letter of claim, the claim is, not against the North Eastern railway, but against the Eastern Railway. So, if the letter in para. 1 of Ext. 7 means the copy of Ext. 5, then it is certain that no notice of claim was sent to the Deputy Chief Commercial Manager, North Eastern Railway; and if the letter in that para, means a separate letter even then it is certain that no notice of claim was sent to that officer. The following line occurs in para. 2 of Ext. 7: "kindly acknowledge receipt of this treating this as notice of claim under C. R. 30 (2) (1 ). " This line indicates, according to the learned Advocate of the plaintiff, that the letter referred to in para. 1 of Ext. 7 must be a letter of claim against the North Eastern Railway. This line, to say the least, is very obscure and no attempt has been made by either side to elucidate its meaning. We are not prepared to base any opinion on something so obscure. Our definite opinion is that no claim was preferred either to the Chief Commercial Superintendent or to the Deputy Chief Commercial Superintendent of the North Eastern Railway. Therefore the plaintiff cannot claim any compensation as against the North Eastern Railway, as no notice, valid or invalid, claiming compensation was ever sent to that Railway. So far as the Eastern Railway is concerned, even assuming that the notice of claim on the Chief Commercial Superintendent is a valid notice under section 77, nothing can be recovered from that Railway as compensation because the plaintiff has not adduced any evidence whatsoever to show that the loss occurred while the goods were being carried over that Railway. But we have already shown that a notice of claim on the Chief Commercial Superintendent is not a valid notice under section 77, and therefore, the plaintiff's suit must fail on that ground. But we have already shown that a notice of claim on the Chief Commercial Superintendent is not a valid notice under section 77, and therefore, the plaintiff's suit must fail on that ground. One of the defenses taken in the written statement was that the court had no jurisdiction to try the suit. In view of what has been stated on the question of notice it no longer necessary for us to decide the objection as to jurisdiction. But the point has been argued at great length before us; so we would like to decide the question of jurisdiction. The question arises in this way. The suit was instituted in the Court of the Subordinate Judge, Jalpaiguri. In para. 7 of the plaint it has been stated that the cause of action for the suit arose at Haldibari. 9. IT was contended before the trial court as well as before us on behalf of the Railway that Haldibari Railway Station from which the five bales were despatched is within the jurisdiction of the Subordinate Judge, not of Jalpaiguri, but of Cooch Behar. Haldibari Railway Station at no time formed part of the State of Cooch Behar. From the preamble to notification, being- Notification No. 1102-IB. dated 7. 3. 1903 published in the Gazatte of India, Part I, page 178 it transpires that the Mahraja of Cooch Behar ceded to the British Government full and exclusive power and jurisdiction of every kind over the lands lying within his State which were or might thereafter be, occupied by the Bengal Duars Railway and the Eastern Bengal State Railway (including the lands occupied by Stations, by out-buildings, and for' other railway purposes), and over all persons and things whatsoever with- in the said lands. That notification, inter alia, provides for the administration of justice within the said lands. The material portion of the Notification is quoted below: "In exercise of such jurisdiction, and of the powers conferred by the indian (Foreign Jurisdiction) Order-in-Council, 1902 the Governor-General in Council is pleased to provide as follows for the ad ministration of justice within the said lands, namely :-A-Bengal Duars Railway and Northern section of Eastern Ben gal State Railway-I. All laws for the time being in force in the Jalpaiguri district of the Bengal Presidency shall be in force in the said lands. II. III. II. III. All courts having for the time being jurisdiction within the Jalpaiguri district shall have the like jurisdiction within the said lands. " 10. IT is not disputed that Haldibari Railway Station is within the lands of the said Notification of 1903. If this Notification is still good law then it cannot be doubted that the present suit was properly instituted in the court of the Subordinate Judge, Jalpaiguri. Now the question is whether the said Notification of 1903 regulated jurisdiction within the lands to which the Notification applied including the Haldibari Station at the date of the institution of the present suit, namely 11th September, 1954. It will be necessary to examine carefully the changes in the legal position since 1903. The State of Cooch Behar to which the Haldibari Railway Station appertained prior to and even after 1903 at present forms part of the State of West Bengal. That the Haldibari railway Station together with the other lands to which the Notification of 1903 applied continued to be a part of the territory of Cooch Behar even after the said Notification will be clear from the language of the Notification itself. The Maharaja of Cooch Behar ceded to the British Government full and exclusive power and jurisdiction of every kind over the said lands but the said lands thereby did not cease to form part of the State of Cooch Behar. It is for this reason that the said Notification of 1903 was made in exercise of the jurisdiction ceded to the British Government by the Maharaja of Cooch Behar and in exercise of the powers conferred by the Indian (Foreign Jurisdiction) Order in Council, 1902. In the preamble to the said Notification the lands to which the Notification applied were described as lands lying within the State of the Maharaja of Cooch Behar. It may also be noted that the Indian (Foreign Jurisdiction) Order in Council of 1902 was made under the Foreign Jurisdiction Act, 1890, passed by the Parliament at Westminster. The material provisions of the order of 1902 are quoted below: - "1. This Order may be cited as the Indian (Foreign Jurisdiction) Order in Council, 1902. 2. The limits of this Order are the territories of India outside british India. 3. The material provisions of the order of 1902 are quoted below: - "1. This Order may be cited as the Indian (Foreign Jurisdiction) Order in Council, 1902. 2. The limits of this Order are the territories of India outside british India. 3. The Governor-General of india in Council may, on His Majesty's behalf, exercise any power or jurisdiction which His Majesty or the Governor-General of India in Council for the time being has within the limits of this Order " Immediately before this Order of 1902 the extra-territorial powers of the Governor-General in his executive capacity were to some extent regulated by the Foreign Jurisdiction and Extradition Act, 1879 of the Government of India. The Order of 1902 was made as it was recognized that the extra-territorial powers exercisable by the Governor-General in Council, as representative of the British Crown, rested on the same principle and might with advantage be based on the same statutory foundation as the extra-territorial powers of the British Crown in other parts of the world. It would not have been necessary to make the Notification of 1903 in exercise of the jurisdiction ceded by the Maharaja of Cooch Behar and in exercise of the powers conferred by the Order of 1902, if the lands to which the said Notification applied did not form part of the territory of the Maharaja of Cooch Behar at the date of the Notification and it cannot be said that the said lands ceased to form part of the territory of the Maharaja of Cooch Behar by virtue of the said Notification of 1903. A material change was brought about by the Indian Independence Act, 1947. Section 7 of the said Act dealt with the consequences of the setting up of the New Dominions of India and Pakistan. A material change was brought about by the Indian Independence Act, 1947. Section 7 of the said Act dealt with the consequences of the setting up of the New Dominions of India and Pakistan. Paragraph (b) of Sub-section (1) of Sec. 7, which is material for our purpose is quoted below : "(1) As from the appointed day (August 15th, 1947) (b) the suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His majesty and the Rulers of the Indian States, all functions exercisable by His Majesty at the date with respect to Indian States, all obligations of His Majesty existing at that date towards Indian States or the Rulers thereof, and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise. " Paragraph (b) shows that all powers, rights, authority or jurisdiction exercisable by His Majesty on the 15th August, 1947 in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise lapsed as from that date. This followed as a corollary from the fact that the suzerainty of His Majesty over the Indian States lapsed as from the 15th August, 1947. The Notification of 1903 was made by the Governor-General in Council as the representative of the Crown. That is to say, the Governor-General in Council in exercising jurisdiction as the representative of the Crown made the Notification of 1903. Therefore it is the Crown that exercised jurisdiction over the Railway lands of Cooch Behar through the Notification of 1903. By reason of paragraph (b) of sub-section (1) of sec. 7 of the Indian Independence Act the said jurisdiction lapsed as from the 15th August, 1947. Proviso to sub-section (1) of section 7 however says that not with standing anything in paragraph (b) effect shall, as nearly as may be continued to be given to the provisions of any such agreement as is therein referred to which relates to customs, transit and communications, posts and telegraphs, or other like matters, until the provision question are denounced by the ruler of the Indian State on the one hand, or by the Dominion or Province or other part thereof concerned as the other hand, or are superseded by subsequent agreement. The provisions contained in the Notification of 1903 were undoubtedly the result of an agreement between the Ruler of Cooch Behar and the Crown, and the said provisions related to transit and communications. Therefore the Notification remained in force until denounced by the Ruler or the Dominion or the Province; or superseded by subsequent agreements. The stand-still agreements that were entered into on the attainment of independence by the Indian Dominion with the Indian States provided for the continuance until new agreements on this behalf were made of "all agreement sand administrative arrangements" as to matters of common concern then existing between the Crown and any Indian State in so far as might be appropriate. A Schedule was appended to these agreements specifying certain matters of common concern between the two Governments. Railways (including police and other arrangements in Railway lands) were included as item 15 in the said Schedule. 11. IT therefore follows that the agreement between the Crown and the State of Cooch Behar regarding Railway lands as per Notification of 1903 was continued as between the Dominion of India and that State by virtue of the standstill agreement. Thereafter Instruments of Accession were entered into between the Indian Dominion and the various Indian States under Section 6 of the Government of India Act, 1935. These Instruments of Accession could not be regarded as the "new agreements" as contemplated by the stand-still agreements. Therefore the notification of 1903 was continued even after the execution of the Instrument of Accession by the Maharaja of cooch Behar. 12. THE position, however, was subsequently altered by the merger of the State of Cooch Behar in the Province of West Bengal. Reference may be made in this connection, at first, to the States' Merger (Governors' Provinces) Order, 1949. Article 3 of this Order provides that as from the appointed day, the States specified in each of the schedules to the Order shall be administered in all respects as if they formed part of the Province specified in the heading of that Schedule. It may be pointed out that the appointed day under this Order is the first day of August, 1949. Article 4 says that all the law in force in a merged State or in any part thereof immediately before the appointed day shall continue in force until repealed, modified or amended by a competent legislature or other competent authority. It may be pointed out that the appointed day under this Order is the first day of August, 1949. Article 4 says that all the law in force in a merged State or in any part thereof immediately before the appointed day shall continue in force until repealed, modified or amended by a competent legislature or other competent authority. The State of Cooch Behar was not included in any of the Schedules to the said Order hereinafter referred to as the Principal Order. This Order was modified by the States Merger (West Bengal) Order, L949 so as to include the State of Cooch Behar with certain consequential changes. The date of commencement of the West Bengal Order is the first day of January, 1950. An additional Article, namely Article 13 was inserted in the Principal Order. The preamble to the subsequent Order relating to Cooch Behar specifically says that full and exclusive authority, jurisdiction and powers for and in relation to the governance of the Indian State of Cooch Behar are exercisable by the Dominion Government. Clause (4) of Article 13 provides that the Bengal, Agra and Assam Civil Courts Act, 1887, shall extend to, and be in force in Cooch Behar as it extends to, and is in force in the Province of West Bengal. Clause (c) of Article 13 lays down that the High Court of Cooch Behar and the other Civil Courts in Cooch Behar shall cease to function, and are hereby abolished. Jalpaiguri Courts on which juristic within the Railway lands covered by the Notification of 1903 were conferred were not Civil Courts in Cooch Behar. Therefore the Jalpaiguri Courts exercising jurisdiction over the Railway lands of Cooch Behar are not affected by Clause (C ). According to Clause (c) of Article 13, every Civil appeal, suit or other proceeding pending immediately before the appointed day (1st January, 1950) before any of the existing Civil Courts shall stand transferred to the lowest court, established under the Bengal, Agra and Assam Civil Courts Act, 1887, as extended to Cooch Behar, which would have jurisdiction to try or dispose of such appeal, suit or proceeding. Existing Civil Courts in the Clause means the Civil Courts in Cooch Behar. Therefore Clause (C) does not apply to any civil appeal, suit or order proceeding pending, immediately before the appointed day (1st January, 1950), be fore any Civil Court in Jalpaiguri. Existing Civil Courts in the Clause means the Civil Courts in Cooch Behar. Therefore Clause (C) does not apply to any civil appeal, suit or order proceeding pending, immediately before the appointed day (1st January, 1950), be fore any Civil Court in Jalpaiguri. To say this does not mean that an appeal, suit or other proceeding pending, immediately before the appointed day, may not otherwise be affected by the merger of the State of Cooch Behar in the Province of West Bengal. However, it is not necessary for us to decide that question in the present appeal. One point deserves attention. Article 4 of the Principal Merger Order says that all the law in force in a merged State or in any part thereof immediately before the appointed day, shall continue in force until repealed, modified or amended by a competent Legislature or other competent authority. Now the question is whether Article 4 of the Principal Merger Order applies to the State of Cooch Behar. It is suggested on behalf of the plaintiff that the Cooch Behar Merger Order is to be read as if it included all the articles of the Principal Merger Order subjected to the modifications made in respect of Articles 2 and 11. The suggestion is borne out by the preamble to the Cooch Behar Merger Order. Now, if Article 4 of the Principal Merger Order and Article 13 inserted by the Cooch Behar Merger Order are read side by side one cannot help noticing that the two Articles are inconsistent. All law in Article 4 certainly includes the law relating to the Constitution and jurisdiction of Civil Courts. Article 13 inserted by the Cooch Behar Merger order certainly modifies the law relating to the construction and jurisdiction of Civil Courts by extending the Bengal, Agra, Assam Civil Courts Act. 1887 to the whole of Cooch Behar. But the which Behar Merger Order does not amend Article 4 of the Principal Order. We need not dilate upon this point any longer as the anomaly does not maternally affect the question of jurisdiction raised by the plaintiff. 1887 to the whole of Cooch Behar. But the which Behar Merger Order does not amend Article 4 of the Principal Order. We need not dilate upon this point any longer as the anomaly does not maternally affect the question of jurisdiction raised by the plaintiff. Now if all law in Article 1 of the Principal Merger Order includes also the provisions contained in the Notification of 1903 in relation to Railway lands of Cooch Behar, then there is much force in the contention on behalf of the plaintiff that the said Notifications ions continued in force by virtue of Article 4 of the Principal Merger Order. But we have indicated above that the Notification merely embodies agreement, between the Maharaja of Cooch Behar and the Crown. This agreement giving extra-territorial jurisdiction to the Governor-General in Council as the representative of the British Crown did not form part of the municipal law of the State of Cooch Behar. All law in Article 4 of the Principal Merger Order does not include the provision for administration of justice contained in the Notification of 1903. This will be evident from the fact that Article 4 refers to orders made under section 3 or section 4 of the Extra-Provincial Jurisdiction Act, 1947 but makes us reference to the Foreign Jurisdiction Act, 1890 or to the Indian (Foreign Jurisdiction) Order in Council, 1902 referred to in the Notification of 1903. Therefore the solution to our problem relating to jurisdiction is not to be found in the Articles either of the Principal Merger Order or of the Cooch Behar Merger Order. Can it be said that the Notification of 1903 continued in force even after the merger of the State of Cooch Behar in the Province of West Bengal. In our opinion the position was materially changed by the merger of the State of Cooch Behar in the Province of West Bengal. Thereafter the State of Cooch Behar ceased to exist and the question is whether the stand-still agreement whereby the agreements between the State of Cooch Behar and the British Crown or for the matter of that between the State of Cooch Behar and the Dominion of India were continued remained effective. After the extinction of the State of Cooch Behar it is meaningless to say that the agreement between that State and the Dominion of India continued. After the extinction of the State of Cooch Behar it is meaningless to say that the agreement between that State and the Dominion of India continued. By the Notification of 1903 certain provisions were made for the administration of justice within. certain lands within the State of Cooch Behar occupied by the two Railways mentioned therein. With the extinction of the State of Cooch Behar the said lands ceased to be the lands of the State therefore the very object of the Notification became frustrated, and the arrangement for the administration of justice within the said lands as part of the territory of Cooch Behar became void and inoperative. The Cooch Behar Merger Order was preceded by the Cooch Behar Merger Agreement of the 28th August, 1949. By this agreement the Maharaja of Cooch Behar ceded to the Dominion Government full and exclusive authority, jurisdiction and powers for and in relation to the governance of the State and agreed to transfer the administration of the State to the Dominion Government on the 12th day of September, 1949. The agreement on the basis of which the Notification of 1903 was issued naturally merged in the all comprehensive Merger Agreement of the 28th August, 1949. By the stand-still Agreement all agreements and administrative arrangements as to matters of common concern then existing between the Crown and any Indian State were continued as between the Dominion of India and the State until new agreements in that behalf were made. It is in this way that the arrangement contemplated by the Notification by 1903 was continued. With the conclusion of the Merger Agreement between the Maharaja of Cooch Behar and the Governor-General of India the arrangement envisaged by the Notification of 1903 came to an end, because the Merger Agreement is a new agreement in that behalf as contemplated by the Stand-Still Agreement. The Merger Agreement was soon followed by the States Merger (Governors' Provinces) Order, 1949 and the State Merger (West Bengal) Order, 1949. The provision made by the States Merger (West Bengal) Order as to the administration of justice in the whole of Cooch Behar in-eliding the Railway lands to which the Notification of 1903 applied naturally supplanted the provision for administration of justice contained in the said Notification of 1903 with regard to Railway lands containing the Haidibari Railway Station. The provision made by the States Merger (West Bengal) Order as to the administration of justice in the whole of Cooch Behar in-eliding the Railway lands to which the Notification of 1903 applied naturally supplanted the provision for administration of justice contained in the said Notification of 1903 with regard to Railway lands containing the Haidibari Railway Station. The position in this respect was further clarified by the passing of the Cooch Behar Assimilation of Laws Act, 1950 both by the Central Legislature as well as by the Legislature of the State of West Bengal. The Central Act is Act no. 67 of 1950 and the State Act is Act no. 63 of 1950. The Central Act relates to matters enumerated in Lists I and III in the Seventh Schedule to the Constitution. The State Act relates to matters enumerated in List II in the Seventh Schedule to the Constitution. The Constitution of and jurisdiction of courts is dealt with in several entries ; Entries 77, 78, 95 of List I ; Entries 3, 65 of List II ; and Entries 56 of List III. Therefore the two Assimilation of Laws Act of 1950, one Central, the other of the State, extended to Cooch Behar as from the 1st of January, 1951 all laws relating to the constitution and jurisdiction of courts which immediately before the date extended to. or were in force in the Stale of West Bengal, but did not extend to, or were not in force in, Cooch-Behar. or were in force in the Stale of West Bengal, but did not extend to, or were not in force in, Cooch-Behar. This will be evident from Sec. 3 (1) of the Cooch Behar (Assimilation of Laws) Act, 1950 passed by the Central Legislature and sub-sections (1) and (2) of Section 3 of the Act passed by the Legislature of the State of West Bengal, Section 3 (1) of the Central Act reads as follows: - "3 (1) Save as provided in Sub-section (2), all laws which immediately before the appointed day extend to or are in force in, the State of West Bengal, but do not extend to or are not in force in, Cooch Behar shall as from that day, ex tend to, or as the case may be, came into force in, Cooch Behar; and all laws which, immediately before the appointed day, are in force in Cooch-Behar, but not in the rest of West Bengal, shall on that day cease to be in force in Cooch-Behar, except as respects things done or omitted to be done before that day. " Subjections (1) and (2) of the State Law is also substantially the same. So even assuming that the Bengal, Agra and Assam Civil Courts Act, 1887 did not extend to Cooch-Behar before the 1st day of January, 1951 the said Act was extended to Cooch Behar as from that date by the two Assimilation of Laws Act. The Civil Procedure Code too was similarly extended to Cooch Behar as from 1st of January, 1951. On the other hand all laws, which immediately before the appointed day (1st of January, 1951) were in force in Cooch-Behar, but not in the rest of West Bengal, ceased to be in force in Cooch-Behar on that day. We have already shown that the laws of Cooch-Behar did not include the provisions for administration of justice in the Railway lands made by the Notification of 1903. It is, however, contended on behalf of the plaintiff that the said provisions were part of the law in force in the territory of India immediately before the commencement of the Constitution and that they are still in force under Article 372 of the Constitution. This contention, in our opinion, is untenable. It is, however, contended on behalf of the plaintiff that the said provisions were part of the law in force in the territory of India immediately before the commencement of the Constitution and that they are still in force under Article 372 of the Constitution. This contention, in our opinion, is untenable. The said provisions contained in the Notification of 1903 applied to lands in the State of Cooch Behar, hence they never formed part of the law in force in British India and subsequently of the law in force in the Indian Dominion. The Notification of 1903 was made not only in exercise of the jurisdiction ceded by the Maharaja of Cooch-Behar but also in exercise of the powers conferred by the Indian (Foreign Jurisdiction) Order in Council, 1902. From Article 2 of the said Order of 1902 it appears that the limits of the Order were the territories of India outside British India. Therefore the said Notification of 1902 did not apply to British India, for the matter of that to the Dominion of India, and therefore its provisions did not form part of the law in force in British India or the Dominion of India. 13. IF it be assumed for the sake of argument that the provisions for the administration of justice made by the said Notification of 1903 formed part of the existing law of Cooch-Behar, then they ceased to be in force by reason of the two Cooch-Behar (Assimilation of Laws) Act, 1950 on and from the 1st of January, 1951. So even if it is assumed that the Notification of 1903 did not become void and inoperative on the conclusion of the Cooch-Behar Merger Agreement in 1949 its provisions ceased to be in force on and from the 1st of January, 1951. Therefore, in any view of the matter, the plaintiff was not justified in instituting his suit in the court of the Subordinate Judge, Jalpaiguri pursuant to the Notification of 1903. The learned Judge relied on Article, 294, 13, 372 and 366 of the Constitution for the purpose of holding that the jurisdiction conferred upon the Jalpai-guri Court by the Notification of 1903 still continues and must be deemed to be the good and valid jurisdiction under the existing law. The learned Advocate for the plaintiff also relies upon them to support the conclusion of the trial court. The learned Advocate for the plaintiff also relies upon them to support the conclusion of the trial court. We have already indicated that the provisions for the administration of justice made by the said Notification of 1903 did not form part of the law in force in the territories of India immediately before the commencement of the Constitution, hence Article 372 has no application to those provisions. Article 294 deals with succession to property, assets, nights, liabilities and obligations in certain cases. From this Article it cannot be deduced that the jurisdiction ceded to the British Government still continues after the commencement of the Constitution. The said jurisdiction, by virtue of which the Notification of 1903 was made really belonged to the Crown and it lapsed under section 7 of the Indian Independence Act, 1947. The arrangement embodied in the said Notification, however, was continued for some time under the proviso to sub-section (1) of that section. But we have already noted that that arrangement came to an end with the conclusion of the Merger Agreement between the Governor-General of India and the Maharaja of Cooch-Behar. Hence, even assuming 'right' in Clause (b) of Article 294 includes the jurisdiction ceded by the Maharaja of Cooch-Behar, that right never became the right of the Dominion of India. We get the same result by applying the principles of State succession in International Law when one State merges voluntarily into another State. It has been pointed out by Opened in his treatise on International Law that when a State merges voluntarily into another State the latter remains one and the same International Person and the former becomes totally extinct as an International Person. As to the devolution of political rights and duties he says this: "No succession takes place, therefore, with regard to the rights and duties of the extinct State arising either from the character of the latter as an International Person or from its purely political treaties. Thus treaties of alliance or of arbitration or of neutrality or of any other political nature fall to the ground with the extinction of the State which concluded them. They are personal treaties and they naturally, legally and necessarily presupposes the existence of the contracting State. " (Vide Inter national Law by Oppenhiem, Vol. I, Eighth Edition, pp. 158-159 ). Thus treaties of alliance or of arbitration or of neutrality or of any other political nature fall to the ground with the extinction of the State which concluded them. They are personal treaties and they naturally, legally and necessarily presupposes the existence of the contracting State. " (Vide Inter national Law by Oppenhiem, Vol. I, Eighth Edition, pp. 158-159 ). If the State of Cooch-Behar is taken to be an International State, the cession of jurisdiction by the Maharaja of Cocch-Behar to the British Crown was in the nature of a political treaty and the agreement by which such cession was made fell to the ground with the extinction of the State of Cooch-Behar by reason of the Merger Agreement. Hence the provisions for administration of justice made on the basis of such cession by the Notification of 1903 ceased to exist after the Merger Agreement. We are therefore not in a position to accept the conclusion of the learned Judge that the Jalpaiguri Court has jurisdiction to try the suit. The learned Advocate for the plaintiff referred to some Notifications of 1950 for the purpose of showing that the Railway Station of Haldibari even now forms part of the District of jalpaiguri and that consequently the Subordinate judge of Jalpaiguri is competent to try this suit. Our attention was drawn in particular to Notification No. 2209p1. /p/r-10/49-25th May, 1950. By that Notification the Governor was pleased to declare the Siliguri (Assam Railway) railway police station along with other railway police stations under the Government Railway Police Sealdah, on the Assam Railway falling within West Bengal to be police-stations. The table appended to the said Notification shows that the Haldibari Railway Station is comprised within the railway police station Siliguri (Assam Railway) declared to be police station by the said Notification. From this it is sought to be argued that the Haldibari Railway Station appertains to the Siliguri (Assam Railway) Police Station and not to the Haldibari Police Station created by Notification No. 11 p1.-1st January, 1950. We cannot accept the argument. From this it is sought to be argued that the Haldibari Railway Station appertains to the Siliguri (Assam Railway) Police Station and not to the Haldibari Police Station created by Notification No. 11 p1.-1st January, 1950. We cannot accept the argument. For the purpose of maintenance of peace and other functions to be performed by the Railway police the Haldibari Railway Station may be included in the Railway Police Station of Siliguri (Assam Railway), but from that it does not follow that for the purpose of administration of justice the Haldibari Railway Station shall not form part of the District of Cooch-Behar. We have not been referred to any notification under section 13 of the Bengal, Agra and Assam Civil Courts Act, 1887 showing that the local limits of the court of the subordinate Judge, Cooch-Behar shall not include the Haldibari Railway Station. As has been pointed out by the learned Judge, Notification No. 64/g. A., dated 17th August, 1947 shows that within the district of Jalpaiguri there are 12 police stations which do not include Haldiberi. Therefore, it cannot be suggested that the Haldibari Railway Station forms part of the District of Jalpaiguri by reason of the aforesaid Notification dated 25th May, 1950. Notification no. 3509 /g. A. dated 1st January, 1950 shows that Coochbehar was constituted into a District of West Bengal with effect from that date, and that within the limits of that District is included the police station Hal dibari. Notification No. 7017 J. dated 1st January, 1950 made under sub-section (1) of section 13 of the Bengal, Agra and Assam Civil Courts Act, 1887 is conclusive ; it shows that the Haldibari police station is within the local limits of the jurisdiction of the Subordinate Judge, Cooch-Behar. There is nothing to show that for the purpose of administration of civil justice the Haldibari Railway Station is not included within the local limits of the Haldibari Police Station. We are therefore definitely of opinion that the Subordinate Judge, Jalpaiguri is not competent to try this suit. It has however been argued on behalf of the plaintiff that the objection being as to the place of suing, the objection should not be allowed- by us; sitting in appeal unless we are satisfied that there has been a failure of justice; by reason of the suit being tried by the Jalpaiguri Court. It has however been argued on behalf of the plaintiff that the objection being as to the place of suing, the objection should not be allowed- by us; sitting in appeal unless we are satisfied that there has been a failure of justice; by reason of the suit being tried by the Jalpaiguri Court. We have been referred to Section 21. Code of Civil Procedure, in support of the argument. Under that section no objection to the place of suing will be entertained by any appellate or revisional court unless the following two conditions exist- (1) that the objection is taken at the earliest opportunity, and (2) that there has been a consequent In lure of justice. In the present case the objection, no doubt, was taken in the written statement itself : therefore the first condition has been fulfilled. But it cannot be said that the second condition has been fulfilled. The question whether trial in the wrong covert has led to a failure of justice must be answered on a consideration of the merit of the case. In the present case there is nothing to show that the defendant has been in any way prejudiced, either in the matter of adducing evidence or in any other way by reason of the case being tried by the court of the Subordinate Judge, Jalpaiguri. Moreover, the defendant says that the Jalpaiguri court has no territorial jurisdiction to try the suit; he does not say that there is inherent lack of jurisdiction so far as the Jalpaiguri court is concerned. Therefore we think that the objection to territorial jurisdiction should not be entertained by us sitting in appeal having regard to the facts and circumstances of the case. Before we conclude we would like to note the objection of the defendant on merits. According to the defendant, the learned Judge was not justified in holding that the plaintiff suffered loss ' to the extent of Rs. 15683-4-0 and that he would have been entitled to recover the said sum from the Railways had there been proper service of the notice of claim under section 77 of the Indian Railways Act. It is in evidence that the piece goods in question were one to four years old, that they were out of fashion and that there was no market for them either at Haldibari or at dhupguri or at Malbazar. It is in evidence that the piece goods in question were one to four years old, that they were out of fashion and that there was no market for them either at Haldibari or at dhupguri or at Malbazar. The plaintiff did not make any attempt to sell them at Jalpaiguri this shows that they were unassailable even at Jalpaiguri These garments were purchased from Howrah Hat and the plaintiff had to send them back to Calcutta for sale as he could not find any buyer for them in or around Jalpaiguri. As to the price of these garments in Calcutta at the expected date of arrival, there is scarcely any evidence. The plaintiff simply says that price of such goods was the same in 195 and 1953. It is difficult to accept this statement of the plaintiff, because it is common knowledge that old stock can be cleared only at a reduced price. So to us, it seems the learned Judge should not have estimated the loss at the cost price. We are inclined to hold that the claim made by the plaintiff is exaggerated and it requires to be scaled down. In view of our finding on the question of notice it is not necessary for us to determine the extent of the loss suffered by the plaintiff. 14. IN the result the appeal fails and is hereby dismissed. As the plaintiff foils on a technical ground there will be no order as to costs either in this Court or in the court below. T. P. MUKHERJI, J.-This appeal by the plaintiff is against the judgment and decree of dismissal passed by the Subordinate Judge at Jalpaiguri in a suit for compensation against the Union of India representing the Eastern Railway and the North Eastern Railway for non-delivery of goods booked at Haldibari Railway Station of the North eastern Railway for carriage to Sealdah on the Eastern Railway. Plaintiff's case was that in July, 1953 he booked a consignment of five bales of ready-made garments at the Haldibari railway Station for delivery to defendants 2 and 3 at Sealdah. The consignment was never delivered on account of the misconduct and negligence on the part of the servants of the Railways concerned and hence the suit. Plaintiff's case was that in July, 1953 he booked a consignment of five bales of ready-made garments at the Haldibari railway Station for delivery to defendants 2 and 3 at Sealdah. The consignment was never delivered on account of the misconduct and negligence on the part of the servants of the Railways concerned and hence the suit. Plaintiff claims to have served due Notices under section 77 of the Indian Railways Act as also Notices under section 80 of the Civil Procedure Code on the Railway administrations. The defendant Union of India denied proper service of the Notices and further denied that the Notices were valid and sufficient. The fact of delivery of 5 bales at the Haldibari Railway Station as alleged by the Plaintiff was denied by the defendant and the jurisdiction of the Jalpaiguri Court to try the suit was also challenged. So far as the delivery of the consignment is concerned it was stated that the alleged booking was a purely fraudulent transaction and that the fraud was brought about by the consignor in collusion with the booking clerk who has since absconded. The learned Subordinate Judge found that proper Notices under section 77 of the Indian Railways Act were not served upon the Railway administrations. The Jalpaiguri Court was found to have jurisdiction over the suit and the defence allegation that the consignment was never delivered at the Haldibari Railway Station was negatived. On his findings in the suit the learned Subordinate Judge dismissed the claim and it is against the judgment and decree passed by him that the plaintiff has come up on appeal to this Court. Mr. Mitter appearing on behalf of the appellant contended that so far as the Eastern Railway is concerned the letter Exhibit 5 in the case should have been held to be a proper and valid Notice under section 77 of the Indian Railways Act and that the fact that a copy of this letter was sent to the Chief Commercial Superintendent of the North Eastern Railway considered along with the Chief Commercial Superintendent's letter Exhibit 7 should have led the trial court to the conclusion that the copy of Exhibit 5 having been treated by the North Eastern Railway administration as a valid Notice of claim for compensation under section 77 of the Indian Railways Act, there was due service of the Notice on that Railway. Mr. Mr. Bose on behalf of the defendant respondent urged that the trial court erred in its finding that the Jalpaiguri court had jurisdiction to try the suit. His contention was that it is the court of the Subordinate Judge of Cooch-Behar within which district Haldibari lies which had jurisdiction over the subject-matter of the suit. On the question of Notice he denied that proper Notice under section 77 of the Indian Railways Act had been served on the Eastern Railway, and he contended further that the plaintiff having had failed to prove that the loss occurred on the Eastern Railway he is not entitled in any event to any decree against that Railway administration. So far as the North Eastern Railway is concerned his contention was first that the copy of the letter Exhibit 5 having been sent to the Chief Commercial Superintend and not to the General Manager, there was in any event no proper service under s. 140 of the Indian Railways Act and secondly that sending a copy of Exhibit 5 wither' any demand for an enquiry or compensation from the North Eastern Railway cannot be tantamount to a Notice no that Hallway administration. The next contention of Mr. Bose was other the court should have found that there are no materials in the case on the basis whereof the market value of the goods could be assessed and that in this view of the matter also the suit was liable to dismissal. The questions that fall for decision in this appeal are, first, whether there was due service of proper Notice under section 77 of the Indian Railways Act on the North Eastern Railway; secondly, whether the market value of the goods concerned are capable of assessment for the purpose of awarding compensation in the present case; and thirdly, whether the Jalpaiguri Court had jurisdiction to try the suit. 15. THE suit was instituted against the Union of India representing the two Railways, the Eastern Railway and the North Eastern Railway. The consignment was booked with the North eastern Railway at the Haldibari Station and there is no question that in the Ease of loss to the consignment that Railway will in any case be liable for compensation. 15. THE suit was instituted against the Union of India representing the two Railways, the Eastern Railway and the North Eastern Railway. The consignment was booked with the North eastern Railway at the Haldibari Station and there is no question that in the Ease of loss to the consignment that Railway will in any case be liable for compensation. So far as the Eastern Railway is concerned that administration will be liable for compensation only if the plaintiff is able to prove that the loss occurred while the consignment was being carried over that Railway. In the present case nothing has been proved which may attract the liability of Eastern Railway and as such the plaintiff, in any event, is not entitled to any decree against the Union of India as representing that Railway. To on title the plaintiff to a decree against the North Eastern Railway it will have to be proved that Notice under section 77 of the Indian Railways Act was served on it within six months and further' that Notice under section 80 of the Civil Procedure Code was also duly served on it. Due service of the latter Notice is not in dispute. What is in dispute is the due service of a proper Notice under section 77 of the Indian Railways Act on the North Eastern Railway. Exhibit 5 is a letter written by the plaintiff to the Chief Commercial Superintendent of the Eastern Railway re questing an enquiry into the non-deli very of the consignment. A copy of this letter, as Exhibit 5 itself shows, was sent to the Chief Commercial Superintendent of the North Eastern Railway. On receipt of the copy of the letter the Deputy Chief Commercial Superintendent, North Eastern Railway wrote letter Exhibit 7 to the Chief Commercial Superintendent of the Eastern Railway and sent a copy of that letter to the plaintiff asking him to communicate direct with the Eastern Railway administration in connection with the consignment stated to have been lost on transit. Two questions arise in connection with this matter. One, whether the copy of Exhibit 5 can be treated as sufficient Notice of claim under section 77 of the Indian Railways Act and secondly, if it is so, whether the forwarding of the copy to the Chief Commercial Superintendent, North Eastern Railway is sufficient service of the Notice under section 140 of the Indian Railways Act. One, whether the copy of Exhibit 5 can be treated as sufficient Notice of claim under section 77 of the Indian Railways Act and secondly, if it is so, whether the forwarding of the copy to the Chief Commercial Superintendent, North Eastern Railway is sufficient service of the Notice under section 140 of the Indian Railways Act. Section 77 of the Indian Railways Act has to be construed liberally. That section is meant to afford protection to the Railway Administration against fraud which lapse of time might facilitate. Any technicalities involved in the provision is not to be taken advantage of by the Railway administration in order to deprive the consignor of his legitimate claim for compensation. The Supreme Court has held in the case of (6) Jetmull Bhojraj v. D. H. Railway and Others, reported in A. I. R. (1962) S. C. 1879 that a request for an enquiry into the loss of a consignment involves a claim for compensation for the loss if the consignment cannot be traced and should be construed as sufficient Notice of claim under section 77 of the Act. Exhibit 5 conveyed a request to the Eastern Railway to make an enquiry into the loss of the consignment alleged and it is that request to the Eastern Railway that was conveyed to the North Eastern Railway administration for information and necessary action. There was in this case no request by the plaintiff to the North Eastern Railway for an enquiry into the matter nor was any claim for compensation preferred to that Railway administration. It is true that by Exhibit 7 the North Eastern Railway referred to Exhibit 5 as a claim on account of non-delivery, but at the same time that claim was stated to be one for settlement by the Eastern Railway. As we read the letter Exhibit 7, we cannot find that what the letter conveyed was a mere opinion of the North Eastern Railway administration that the claim has to be settled by Eastern Railway. The claim itself as made was treated by the North Eastern Railway as one meant for settlement by the Eastern Railway and that is why the claimant was asked to communicate direct with the latter Railway. The claim itself as made was treated by the North Eastern Railway as one meant for settlement by the Eastern Railway and that is why the claimant was asked to communicate direct with the latter Railway. Had it been treated as a claim on the North Eastern Railway there would be no justification for that Railway for directing the claimant to 'the other Railway without making any enquiries so far as its own administration is concerned. We are unable therefore to agree with Mr. Mitter that exhibit 7 amply proves that the claim conveyed in the copy of Exhibit 5 was treated by the North Eastern Railway as a claim on itself and in fact it is apparent that the copy of Exhibit 5 did not ask for any such enquiry by the North Eastern Railway which might involve a claim for compensation in case the consignment could not be traced. 16. SO far as the question of service under section 140 of the Indian Railways Act is concerned, the decisions of the Calcutta High Court, it was urged, indicate that in the absence of evidence to prove that the Chief Commercial Manager or Superintendent is authorised to settle claims a Notice served on that officer is not proper service according to law. We were referred in this connection to the case (7) Union of India v. Indumati Saha, reported in 55 C. W. N. 662 where Notice was served on the Chief Commercial Manager of the Eastern Railway with its office at Sealdah and the suit on the claim for compensation was filed in the Alipore Court within the jurisdiction whereof Sealdah lies. It was held that the Alipore Court has no jurisdiction to try the suit as the Notice in the case should have been served on the General Manager whose office is outside the jurisdiction of that court and that the fact that the Notice was, as a matter of fact, served on an officer within the jurisdiction of the court would not confer the jurisdiction on that court to try the suit. The Notice, it was held, was required to be served on the General Manager, who was the overall Manager of the Railway administration and not on a sectional manager like the Chief Commercial Manager. The next case to which our attention was drawn by Mr. The Notice, it was held, was required to be served on the General Manager, who was the overall Manager of the Railway administration and not on a sectional manager like the Chief Commercial Manager. The next case to which our attention was drawn by Mr. Bose is (8)Southern India Co-operative Stores v. Union of India, reported in 60 C. W. N. 9815 where the claim involved was less than Rs. 5000/ -. It was found that the Chief Commercial Manager who was served with a notice of claim in terms of section 77 of the I. R. Act was authorised to settle claims up to Rs. 5000/- and it was held that that authority carries with it the authority to waive in respect of such claims the protection of section 77. As the authority to settle claims would be unworkable without the authority to waive a Notice in respect thereof, the waiver by the Chief Commercial Manager was held tantamount to waiver by the Government of India. Waiver in the case was inferred from the fact that though the Chief Commercial Superintendent had refused to entertain the claim, he did not say that the claim could not be entertained until and unless notice under section 77 had been properly served. In the case (9) Niranjan Lal v. Union of India, reported in 65 C. W. N. 876 Notice on the Chief Commercial Manager was held to be not a proper Notice as there was nothing to show in that case that the Railway concerned had either expressly or impliedly held out that officer as the officer authorised to receive Notice under section 77 of the Railways Act and to give relief to the plaintiff. Whatever might be the trend of decisions in the other High Courts, so far as the Calcutta High Court is concerned it appears to be the settled law that a Notice under section 77 of the Indian Railways Act is required to be served on the General Manager of the Railway concerned. Whatever might be the trend of decisions in the other High Courts, so far as the Calcutta High Court is concerned it appears to be the settled law that a Notice under section 77 of the Indian Railways Act is required to be served on the General Manager of the Railway concerned. The case of (8) Southern India Co-operative Stores (Supra) held that if the Railway administration holds out the Chief Commercial Manager who is in charge of settlement of claims either expressly 0r impliedly as the officer authorised to receive Notices under the section and to give relief to the claimant, service of Notice on him would be sufficient in this view of the matter that the authority to settle claims carries with it the authority to waive in respect of such claims the protection of section 77 and the waiver of the notice by the Chief Commercial Manager would amount to waiver by the Government of India. The case of (9) Niranyan Lal (Supra) impliedly concurred with this decision. In the present case there was no evidence as to whether the Chief commercial Superintendent of the Railways concerned were authorised to settle claims up to the amount involved in the present suit, but then it was pointed out by Mr. Mitter that in the plaint there is a categorical statement in paragraph 4 that the Chief Commercial Superintendent of the Eastern Railway and the Dy. Chief Commercial Superintendent of the N. E. Railway were authorised and competent to dispose of the claim in suit and that this statement not having been denied in tie written statement of the defendant should be treated as an admission of the statement by non-traverse. There is certainly some force in this contention. In the two cases reported in (B) 60 C. W. N. 985 and (9) 65 C. W. N. 876 notices of claim under section 77 of the Indian Railways Act were served on the Chief Commercial Superintendent of the Railway concerned and the question as to whether he had been held out as the authority to settle the claim cropped up. In view, however, of our finding above that the copy of Exhibit 5 sent to the Chief Commercial Superintendent, N. E. Railway did not even carry a request for an enquiry into the loss, by that Railway administration and further considering that there was neither any enquiry nor any refusal by that officer, we must hold that there having been no service of Notice on the Chief or even the Dy. Chief Commercial Supdt of that administration in terms of section 77 of the Indian Railways Act in the present case, no question of waiver would in any event arise in this case. 17. MR. Mitter next argued that when two Railways are concerned in the matter of carriage of a consignment and proper Notice is served on one of them and that Railway administration intimates the fact of the claim to the other Railway within the statutory period, that other Railway should be held to have been served with due Notice of the claim. The theory of Notice allude does not appeal to us in view of the specific provisions in section 77 of the Indian Railways Act. This question appears to have been agitated in the cases (12) Salem Dayalbagh Stores v. G. G.-in-Council, reported in A. I. R. 1947 Madras 362 and (13) Kishanlal Roopchand v. Indian Dominion, reported in A. I. R. (1955) Madras 151 and it was held in both the cases that such communication with the other Railway which itself was not served with due Notice cannot be treated as Notice on the latter. It cannot, therefore, be found that the liability of the North Eastern Railway would be attracted to the case, because of the fact that intimation about the plaintiff's claim in. respect of the loss of the consignment was somehow brought to its knowledge. In view of what has been stated above we must find that the claim against the Eastern Railway not having been established the suit is liable to fail because of non-service of due Notice under section 77 of the Indian Railways Act on the North Eastern Railway in the present case. 18. MR. Bose appearing for the respondent Union on of India wanted to support the decree of dismissal also on the ground of want of jurisdiction of the trial court which was found against him by that court. 18. MR. Bose appearing for the respondent Union on of India wanted to support the decree of dismissal also on the ground of want of jurisdiction of the trial court which was found against him by that court. In the written statement the jurisdiction of the Jalpaiguri Court to try the suit was challenged on the ground that the cause of action having arisen within the jurisdiction of the Subordinate Judge of Cooch Behar the suit should have been filed in the latter court. There is no dispute in the case that Haldibari where the cause of action for the claim in suit arose belonged originally to the State of Cooch Behar. It was also not disputed that the Maharaja of Cooch Behar had ceded to the British Government full and exclusive power and junsdiction of every kind over the lands lying within his State which may be occupied by the Eastern Bengal State Railway and over all persons and things whatsoever within the said lands and that in exercise of such jurisdiction and of the powers conferred by the Indian (Foreign Jurisdiction) Order in Council, 1902, the Governor-General-in-Council provided for the administration of justice within the said lands. Notification no. 1102 IB dated 7. 3. 1903 published in the Gazette of India, Part I, page 178. provided that so far as the administration of justice within the lands occupied by the Eastern Bengal State Railway is concerned, the courts exercising jurisdiction within the Jalpaiguri district were to have the like jurisdiction within the said lands. It was in pursuance of this notification that suits on the basis of causes of action arising against the Railway administration in relation to consignments booked at the Haldibari Railway station used to be fifed in the Jalpaiguri courts. The question is whether the Jalpaiguri courts have retained that jurisdiction since the merger of Cooch Behar State in West Bengal. The merger was preceded by the Cooch Behar Merger Agreement dated August 28, 1949 (vide White Paper on Indian States, page 212) whereby the Maharaja of Cooch Behar ceded to the Dominion of India full administrative authority over the State of Cooch Behar with effect from September 12, 1949. The merger was preceded by the Cooch Behar Merger Agreement dated August 28, 1949 (vide White Paper on Indian States, page 212) whereby the Maharaja of Cooch Behar ceded to the Dominion of India full administrative authority over the State of Cooch Behar with effect from September 12, 1949. Prior to this agreement the Governor-General had issued the States Merger (Governor's Provinces) Order, 1949 dated July 27, 1949 under section 290a of the Government of India Act, 1935 for the administration of the Indian States specified in the schedules annexed to the Order, exclusive authority, jurisdiction and powers in respect whereof had been ceded to the Dominion of India. That Order came into force on August 1, 1949, but did not cover ("he State of Cooch Behar inasmuch as the Merger Agreement with the Maharaja had not come into existence by then (vide page 297 of the White Paper ). By virtue of the Merger Agreement with the Maharaja of Cooch Behar the Government of India took over the ad ministration of the State and appointed a Chief Commissioner for the State on September 12, 1949. On December 31, 1949 the Governor-General-in-Council in exercise of powers conferred by section 290a of the Government of India Act, 1335 issued the States Merger (West Bengal) Order, 1919 (ride page 309 of the White Paper ). This Order virtually amended the States Merger (Governors' Provinces) Order referred to above by including Cooch Behar within the operation of that Order and among other things applying the Bengal, Agra and Assam Civil Courts Act, 1887, as it is in force in West Bengal to Cooch Behar. This Order came into effect on January 1, 1950. As a result of the States Merger (West Bengal) Order, 1949 passed under section 290a of the Government of India Act, 1935 the State of Cooch Behar, the administration whereof had already been taken over by the Government of India was merged in the State of West Bengal with effect from January 1, 1950. Article 4 of that Order inserted a new Article in the Principal Order, i. e., the States Merger (Governors' Provinces)Order 1949 and as al ready stated provided for the application of the Bengal Agra and Assam Civil Courts Act, 1887 to Cooch Behar. Article 4 of that Order inserted a new Article in the Principal Order, i. e., the States Merger (Governors' Provinces)Order 1949 and as al ready stated provided for the application of the Bengal Agra and Assam Civil Courts Act, 1887 to Cooch Behar. By virtue of the power conferred by the Order above, the Government of West Bengal issued Notification No. 3509 GA dated January 1, 1950, constituting cooch Behar into a District in West Bengal and prescribing the [limits thereof by the local areas of the; concerned Police Stations including haldibari. It could not be proved before us though it was so contended that Haldibari railway station does not lie with in the limit of the local area of haldibari P. S. By Notification No. 7016j of the same date the Government of West Bengal issued a Notification under the Bengal, Agra and Assam Civil Courts Act, 1887 constituting the district of Cooch Behar into a District Judgeship and Sessions Judgeship and by Notification No. 7017j also of the same date in exercise of powers under the same Act a separate Notification was issued specifying the local limits of the jurisdiction of the court of the Subordinate Judge of Cooch Behar to include the entire District of Cooch Behar as constituted by Notification No. 3509 GA referred to above. 19. ON the strength of these Notifications Mr. Bose argued that any suit on a cause of action arising at Haldibari within the District of Cooch Behar has to be instituted in the Civil Courts of that District and that the merger of Cooch Behar as a result of the States Merger (West Bengal) Order of 1949 impliedly repealed the Notification of 1903. Mr. Mitter referred to Article 372 of the Constitution and urged that the Notification of 1903 which was an existing law in force before the commencement of the Constitution has continued in force, the same not having been altered or repealed or amended by a competent legislature or other competent authority. Mr. Mitter referred to Article 372 of the Constitution and urged that the Notification of 1903 which was an existing law in force before the commencement of the Constitution has continued in force, the same not having been altered or repealed or amended by a competent legislature or other competent authority. He also referred to the India (Consequential Provision) Act of 1949 passed by the British Parliament on December 16, 1949 which has continued all existing laws in force up to the date of India's becoming a Republic and thereafter until provision to the contrary is made by the authority having power to alter that law ; his contention is that inspite of the merger of Cooch Behar State the Order of the Governor-General-in-Council issued in 1903 referred to above was continued in force with the result that suits arising out of causes of action within the lands occupied by the then Eastern Bengal State Railway had to be instituted in the courts of Jalpaiguri. The question is whether the Order-in-Council of 1903 or its foundation, the British Order-in-Council of 1902 which was issued under the British Foreign Jurisdiction Act is still in force. 20. THE Order of 1903 was passed in exercise of powers under the Indian (Foreign Jurisdiction) Order-in-Council, 1902 (vide the Government of India by Sir Courtenay Albert, Chapter V, page 417) issued under the British Foreign Jurisdiction Act of 1890 and made provision for the exercise of foreign jurisdiction by the Governor-General of India in Council. That Order-in-Council of 1902 authorised the Governor-General of India in Council to exercise on behalf of the British Sovereign, power and judisdiction which the British Sovereign or the Governor-General of India in Council for the time being had within the limits of the Order which were the territories of India outside British India and the Governor-General-in-Council was also authorised to delegate any such power or jurisdiction to any servant of the British Indian Government. The power to be exercised included the power of determining the courts, authorities, judges and magistrates by whom any jurisdiction consequential on the jurisdiction exercised under this Order is to be exercised in British India. This Order is founded on the existence of a foreign jurisdiction and when the foreign jurisdiction itself disappeared with the merger of Cooch Behar in West Bengal that Order lost its basis altogether. This Order is founded on the existence of a foreign jurisdiction and when the foreign jurisdiction itself disappeared with the merger of Cooch Behar in West Bengal that Order lost its basis altogether. That merger took place on January 1, 1950 before India became a Republic on January 26, 1950 and as such after January 1, 1950 the Order of 1903 or for the matter of that Order of 1902 so far as it related to Cooch behar was no longer effective as an existing law. In this view of the matter neither Article 372 of the Constitution nor the India (Consequential Provision) Act, 1950 would be attracted to the matter. We feel no difficulty in coming to the conclusion, therefore, that with the merger of the State of Cooch Behar in West Bengal the Notification of 1903 was impliedly repealed, the same having had lost its basis and that with effect from January, 1, 1950 administration of justice within the entire State of Cooch Behar must be held to have been provided for by the Notifications of that date referred to earlier. The court of the Subordinate Judge at Jalpaiguri, therefore, had no jurisdiction to try the present suit. This finding would not, however, dispose of the objection raised by Mr. Bose. There is section 21 of the Civil Procedure Code according to which an objection as to the place of suing shall not be allowed even if the same was taken at the earliest possible opportunity unless there has been a consequent failure of justice. As we cannot find that there has been a failure of justice in the present case due to the suit not having been instituted in the proper court, the objection in that regard must be dismissed. Mr. Bose further wanted to support the decree of dismissal on the ground that in any event there being no evidence in the case regarding the market value of the goods in the consignment thai was lost, there are no materials on record on the basis whereof the court might assess the compensation to which the consignor might be entitled. The goods in question were admittedly one to four years old. The plaintiff could not produce any cash memos for the purchase of the goods and his evidence was that the goods were purchased by him at Howrah Hat where no cash memos were given. The goods in question were admittedly one to four years old. The plaintiff could not produce any cash memos for the purchase of the goods and his evidence was that the goods were purchased by him at Howrah Hat where no cash memos were given. He stated in his evidence that the price for the goods continued to be the same in 1551 to 1953. On his own evidence a part of the goods were purchased in 1949 1950. The evidence in the case further discloses that there was no market for the goods either at Haldibari or at Jalpaiguri. The plaintiff would be entitled to the price of the goods as prevailing at Calcutta which was the destination for the consignment at the time the same was expected to reach there. But no evidence as to the price that could be obtained at Calcutta at the time could be adduced. It is true that the defendant did not adduce any evidence on the point but in the very nature of things, the defendant having had denied that the consignment was ever delivered could not be expected to adduce evidence on the point and even if it could be expected it was hardly possible for it to adduce that evidence. All the evidence that the plaintiff adduced was that at the time of purchase he used to mark the individual prices on the body of the garments and subsequently entered them in his books. That was the price at the lime of purchase one to four years back, and it is hardly expected that readymade garments four years old would fetch the same price paid for them. In the circumstances, if the plaintiff had been found entitled to a decree I would have been inclined to deduct ten per cent, from the purchase price on account of the fact that the goods on the evidence of the plaintiff himself had been much Dandled during this period and is portion thereof at any rate were old enough to justify a reduction in their value. 21. 21. IN view of our finding that the plaintiff in any event is not entitled to a decree against the Eastern Railway, no loss over that Railway having been proved and in further view of our finding that no Notice under section 77 of the Indian Railways Act was served on the North Eastern Railway we must hold that the suit has been righty dismissed. The appeal accordingly fails and is dismissed. Parties will bear their respective costs of this Appeal.