Union of India (UOI) v. Parshottam Das — 1966 DIGILAW 349 (ALL)

ORDER S.S. Dhavan, J. - This is a second appeal from the decree of the Second Additional Civil Judge, Varanasi reversing that of the Munsif City, Varanasi and decreeing the Plaintiff Respondents' suit for the recovery of Rs. 2,442/- as compensation for damages to a consignment of mangoes. The Appellant is the Union of India as the owner of the Eastern and Northern Railways. The Plaintiff Respondent Parshottam Das alleged in his plaint that he is a karta of a joint Hindu family governed by Mitakshara School of Hindu Law; that the family carries on business under the name and style Parshottam Das Magan Lal; that in the course of business the Plaintiff got a consignment of 200 baskets of Langda mangoes despatched from Raj Mahal railway station for delivery to the Plaintiff at Kashi station; that the Plaintiff was the consignee of the goods; that the consignment was (to be)delivered on 5-6-1956 but not delivered to the Plaintiff till the close of the day on 9th of June; that the mangoes were found rotten and unfit for human consumption; that this damage was due to the wilful misconduct and negligence of the Railway Administration and their staff. The Plaintiff after serving the necessary notices u/s 77 of the Rail ways Act and Section 80 of the CPC filed the present suit for recovery of Rs. 2,442/- from the Railway. 2. The Defendant resisted the suit and denied all liability. In view of the nature of the defence taken during the trial and the grounds pressed in appeal before me, it is necessary to examine the contents of the written statement filed in this case. It was verified by the counsel for the Railway, Sri S.K. Basu Advocate. The verification is in these terms, "I, S.K. Basu Advocate do hereby verify that contents of paras 1 to 19 of this written statement are based on instructions from official records which I believe to be true. Verified this 13th day of January, 1958 in the civil court compound Varanasi. S.K. Basu 13-1-1958." I do not know the reasons which induced Mr. S.K. Basu to take upon himself the burden of verifying the written statement filed by a client. I shall make no comment on his conduct as I am informed that he is dead. Verified this 13th day of January, 1958 in the civil court compound Varanasi. S.K. Basu 13-1-1958." I do not know the reasons which induced Mr. S.K. Basu to take upon himself the burden of verifying the written statement filed by a client. I shall make no comment on his conduct as I am informed that he is dead. But I am constrained to observe that it was not proper for the Appellant Union of India to ask its counsel to verify its pleadings in defence. The Railway Department is not an ordinary litigant. It has at its disposal a team of able counsels who are expected to know the law governing the verification of pleadings. The verification of the written statement by counsel for the Railway is all the more surprising in view of the fact that the Vakalathami was also signed by a Railway Inspector who was expected to know all the relevant facts and could have verified the statement. 3. The verification itself is defective and violates the provisions of Rule 15 of Order 6 Code of Civil Procedure. That rule requires that "every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case." It further requires "The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true." Thus the law requires that a pleading should be verified ordinarily by the party, but it may be verified by any other person provided it is "proved to the satisfaction of the Court that the person is acquainted with the facts of the case." In the present case there is nothing on record to indicate that it was proved to the satisfaction of the trial court that Mr. S.K. Basu was acquainted with the facts of the case. He stated in the verification paragraph that it was "based on instructions from official records which I believe to be true". This kind of verification can be easily made by any counsel engaged in a case and if permitted will reduce the rule governing verification to be a farce. S.K. Basu was acquainted with the facts of the case. He stated in the verification paragraph that it was "based on instructions from official records which I believe to be true". This kind of verification can be easily made by any counsel engaged in a case and if permitted will reduce the rule governing verification to be a farce. Counsel for the railway relied on Rule 1 of Order XXVII, CPC which provides that in a suit by or against the Government the plaint or the written statement may be verified by any person appointed by the government to sign it. He pointed out that Mr. S.K. Basu had been appointed by the Union Government and was competent to verify the written statement. There are two short answers to this argument First, Rule 1 of Order 27 CPC expressly enjoins that the plaint or written statement shall be verified by any person "who is acquainted with the facts of the case" and this does not include a counsel who can only act on instructions. The word 'acquainted' contemplates personal acquaintance or at any rate something more than mere instructions received by counsel from a client. Secondly, the power of attorney filed by Mr. S.K. Basu did not expressly confer on him the power to verify pleadings on behalf of the railway. The verification of the written statement in this case must therefore be held to be invalid. 4. Learned Counsel for the Railway prayed for the adjournment of this appeal to enable the Union of India to verify the written statement properly. I am not inclined to grant this prayer for several reasons. There is no explanation why the Union of India did not take steps to cure this defect uptil now. The suit was filed mine years ago and this appeal four years ago. Secondly, the Union of India itself has sought to take advantage of purely technical pleas against the Plaintiff and I see no reason why the Plaintiff should not be permitted to take advantage of a serious defect in the verification of the written statement. Thirdly, as well be clear from this judgment, there are hardly any equities in favour of the Union of India and I am not inclined to show it any indulgence as this would not serve the interest of justice. 5. Thirdly, as well be clear from this judgment, there are hardly any equities in favour of the Union of India and I am not inclined to show it any indulgence as this would not serve the interest of justice. 5. The result must be that the Union of India must be deemed to have filed a written statement which is vitiated by a vital defect and therefore, cannot be permitted to rely on it. 6. I am constrained to observe that the trial court was not justified in accepting a written statement which on the face of it was not properly verified. Order VI, Rule 15, CPC requires that the person verifying the pleadings must be proved to the satisfaction of the court to be acquainted with the facts of the case. This rule casts a duty on the court before accepting a written statement to satisfy itself that it is properly verified by a person quite competent to do so. The trial court neglected to discharge this duty. 7. The contents of the written statement also reveal serious defects. The Plaintiff had alleged in paragraph 1 of the plaint that he was the manager and karta of his joint Hindu family and carried on the joint family business of vegetable and fruits in the name and style of Parshottamdas Maganlal in the mohalla of Bisheswhar Ganj, Varanasi. In reply to this paragraph in the written statement the Defendant alleged "the Defendant is not in the know of the allegations contained in paragraph 1 of the plaint and as such they are not admitted." This denial is vague and evasive. It violates Rule 3 of Order VIII CPC which enjoins: "It shall not be sufficient for a Defendant in his written statement to deny generally the grounds alleged by the Plaintiff, but the Defendant must deal specifically with each allegation of fact of which he does not admit the truth...." It also violates Rule 4 of the same Order which provides "where a Defendant denies an allegation of fact in the plaint, he must not do so evasively to answer the point of substance...." A mere blanket allegation that para 1 of the plaint is not admitted does not amount to a specific denial of each allegation of fact in that paragraph-- Ganga Prasad Vs. Prem Kumar Kohli and AIR 1949 21 (Nagpur) . Prem Kumar Kohli and AIR 1949 21 (Nagpur) . In the present case the denial of paragraph 1 of the plaint suffers from another serious defect. The Union of India alleged that it was "not in the know of the allegations contained in para 1...and as such they are not admitted." The reason for denial is ignorance of the facts. In my view this denial does not comply with the requirements of Rule 8 of Order 8 CPC and is not a proper denial in law. 8. The only ether paragraph of the written statement which is relevant for the decision of this appeal is numbered 13, contained in the additional pleas. It states "that the Plaintiff is not entitled to sue as he is neither the consignee nor the consignor." The Union of India also denied the Plaintiff's allegation that the damages to the goods caused by the gross negligence and misconduct of the Railway and its staff, but it is not necessary to consider this plea in view of the concurrent finding of both the courts below that the damage was caused by the negligence of the Railway. Learned Counsel for the Railway did not challenge this finding. 9. The trial court held that the Railway had been guilty of negligence but it dismissed the Plaintiff's suit mainly on two grounds--first, that he had not proved that he was the Karta of the Joint Hindu family and secondly, that he had failed to prove that he was the consignee of goods. On appeal the learned Civil Judge reversed both these findings. He held that the Plaintiff had proved that he was managing the business of the family and therefore, entitled to sue. He further held that the joint family firm was: the consignee of the goods and the Plaintiff was managing that firm and acting on its behalf. On these findings, the learned judge allowed the Plaintiff's appeal and decreed the suit against the Union of India which has come here in second appeal. 10. Mr. Vinod Swarup who holds the brief for Mr. Jagdish Swarup argued this case with ability and considerable tenacity and urged the following arguments in favour of this appeal. On these findings, the learned judge allowed the Plaintiff's appeal and decreed the suit against the Union of India which has come here in second appeal. 10. Mr. Vinod Swarup who holds the brief for Mr. Jagdish Swarup argued this case with ability and considerable tenacity and urged the following arguments in favour of this appeal. First, he contended that the finding of the lower court that the Plaintiff was entitled to sue was erroneous because there was no evidence that the Plaintiff was the Karta of the Joint Hindu family. Secondly, he argued that the finding that the Plaintiff could sue because he was the consignee was also erroneous because the Plaintiff had led no evidence to prove that the title in the goods had passed to him. 11. As regards the first argument, it must be noted that this plea was not raised in the written statement. It is true that there is a vague denial of paragraph 1 of the plaint, but as explained above, this sort to denial does riot shift the burden of proof nor relieve the Defendant from the onus of proving that the Plaintiff was not the karta of the Joint Hindu family. Moreover, the lower appellate court has found that the Plaintiff had established that he was the manager of the business. Therefore, even if he did not positively prove that he was the Karta of the family in the technical sense, he was entitled to file this suit in his capacity as manager of the business of the joint family. There is overwhelming authority for the view that where a joint family business has to be carried on in the interest of the family as a whole, the managing members may be entrusted the power of making contracts, giving receipts, filing suits and doing all acts which are ordinarily incidental to the carrying on of the business--Kishan Prasad v. Har Narain Singh ILR 32 All. 277 (PC); Raj Kishore v. Firm Jai Narain Parmatma Saran 1958 AWR 312 ; Gena Lal v. Nanu Lal AIR 1956 M.B. 58 ; Surajmal Jain v. Union of India AIR 156 Pat. 478 and K.M. Ramakrishna Mudaliar Vs. V.S.V. Manikka Mudaliar (deceased) and Others, AIR 1937 Mad 375 . 277 (PC); Raj Kishore v. Firm Jai Narain Parmatma Saran 1958 AWR 312 ; Gena Lal v. Nanu Lal AIR 1956 M.B. 58 ; Surajmal Jain v. Union of India AIR 156 Pat. 478 and K.M. Ramakrishna Mudaliar Vs. V.S.V. Manikka Mudaliar (deceased) and Others, AIR 1937 Mad 375 . In this case the lower appellate court has found, on the evidence before it, that the Plaintiff was managing the fruit business of the joint family and that he placed the order for mangoes and took delivery of the goods and gave a valid discharge to the Railway. Relying on this and other facts it held that the Plaintiff was the manager-in-charge of the joint family business. This finding has not beer challenged before me. Therefore, I hold that as manager of the business he was entitled to file a suit on behalf of the joint family. 12. Mr. Vinod Swarup then argued that even if the Plaintiff was competent to file the suit as the manager of the joint Hindu family business, his suit must be dismissed as he was not the consignor of the goods nor had he proved that the title to the goods had passed to him as consignee. Learned Counsel contended that it is not enough for a consignee of the goods who wants to sue the Railway for compensation for damages to the goods consigned to prove that he is the consignee of the goods and he must further prove that he had become the owner. Learned Counsel conceded that the decision of the Full Bench of this Court in Dominion of India v. Gayalprasd Gopalprasad 1956 AWR 360 is against him, but he argued that this decision must be deemed to have been impliedly overruled by certain observations of the Supreme Court in the Union of India (UOI) Vs. West Punjab Factories Ltd., AIR 1966 SC 395 . Learned Counsel frankly admitted that if the Full Bench decision of this Court has not been overruled by the Supreme Court and is still good law, his argument cannot succeed. But he contended, relying on the observations of the Supreme Court in the latter case, that the Allahabad view has been overruled. 13. Learned Counsel frankly admitted that if the Full Bench decision of this Court has not been overruled by the Supreme Court and is still good law, his argument cannot succeed. But he contended, relying on the observations of the Supreme Court in the latter case, that the Allahabad view has been overruled. 13. In the Allahabad case the Full Bench held that a consignee who is not the owner of the goods but to whom the goods are consigned for the purpose of sale on a commission basis is entitled to maintain a suit for compensation for damage caused to the goods in transit. In the case before them a wagon of oranges had been entrusted to the GIP Railway and the Plaintiff was mentioned in the Railway Receipt as the consignee. The destination of the goods was Lucknow, but owing to the late arrival of the wagon at Lucknow the oranges had deteriorated considerably and the Plaintiff refused to take delivery of them and filed a suit for damages. Railway contended that the Plaintiff, being only the commission agent, has no locus standi to maintain a suit. This question was ultimately referred to a Full Bench which held that a consignee is entitled to sue even if he is not the owner of the goods. 14. In the case before the Supreme Court two suits had been filed against the Railway for compensation for damage to two different sets of consignment. One was filed by the consignor and the other by the consignee. In the suit by consignor the Railway took a technical objection that the title to the goods having passed to the consignee, the consignor could not file the suit. This plea was rejected both by the trial court and the High Court and the matter taken to the Supreme Court in appeal by the Railway. The Supreme Court rejected the technical pleas raised by the Railway and affirmed the decision of the High Court, but it made certain observations which are relied upon by Mr. Vinod Swarup. It is necessary to quote them. In dealing with the suits filed by the consignor the Supreme Court observed: Ordinarily, it is the consignor who can sue if there is damage to the consignment, for the contract of carriage is between the consignor and the railway administration. Vinod Swarup. It is necessary to quote them. In dealing with the suits filed by the consignor the Supreme Court observed: Ordinarily, it is the consignor who can sue if there is damage to the consignment, for the contract of carriage is between the consignor and the railway administration. Where the property in the goods carried has passed from the consignor to some one else, that other person may be able to sue. Whether in such a case the consignor can also sue does not arise on the facts in the present case and as to that we say nothing. The argument on behalf of the Appellant is that the railway receipt is a document of title to goods see Section 2(4) of the Indian Sale of Goods Act, No. 3 of 1930 and as such it is the consignee who has title to the goods where the consignor and consignee are different. It is true that a railway receipt is a document of title to goods covered by it, but from that alone it does not follow, where the consignor and consignee are different, that the consignee is necessarily the owner of the goods and the consignor in such circumstances can never be the owner of the goods. The mere fact that the consignee is different from the consignor does not necessarily pass title to the goods from the consignor to the consignee and the question whether title to goods has passed to the consignee will have to be decided on other evidence. It is quite possible for the consignor to retain title in the goods himself while the consignment is booked in the name of another person. Take a simple case where a consignment is booked by the owner and the consignee is the owner's servant, the intention being that the servant will take delivery at the place of destination, In such a case the title to the goods would not, pass from the owner to the consignee and would still remain with the owner, the consignee being merely a servant or agent of the owner or consignor for purposes of taking delivery at the place of destination. It cannot therefore be accepted simply because a consignee in a railway receipt is different from a consignor that the consignee must be held to be the owner of the goods and he alone can sue and not the consignor. It cannot therefore be accepted simply because a consignee in a railway receipt is different from a consignor that the consignee must be held to be the owner of the goods and he alone can sue and not the consignor. As we have said already, ordinarily, the consignor is the person who has contracted with the railway for the carriage of goods and he can sue; and it is only where title to the goods has passed that the consignee may be able to sue. Whether title to goods has passed from the consignor to the consignee will depend upon the facts of each case and so we have to look at the evidence produced in this case to decide whether in the case of five consignments booked to the J.C. Mills, the title to the goods had passed to the Mills before the fire broke out on 8-3-1943. We may add that both the courts have found that title to the goods had not passed to the J.C. Mills by that date and that it was still in the consignor and therefore the Factory was entitled to sue. We may in this connection refer briefly to the evidence on this point. Mr. Vinod Swarup relies particularly on the sentence "As we have said already, ordinarily 'the consignor is the person who has contracted with the railway' for the carriage of goods and he can sue; and 'it is only where title to the goods has passed that the consignee may be able to sue'." Learned Counsel contended vehemently that this observation of the Supreme Court impliedly overrules the view of the Full Bench of this Court in Dominion of India v. Gayaprasad (supra) that the consignee who is not the owner of the goods is entitled to sue. 15. The question is whether these observations have the effect of overruling the Full Bench decision. It is not free from difficulty, in view of the observation of the Supreme Court, "It is only where title to the goods has passed that the consignee may be able to sue", but examined in the light of the context I am doubtful whether the Supreme Court intended to lay down a general proposition of law that in no case a consignee is entitled to sue unless and until he has become the owner of the goods. The question before the Supreme Court was whether the consignor in that case was entitled to sue and the Court held that it was, because the title to the goods had not passed to the consignee and the consignor still remained their owner. It was in this context that the Supreme Court made the observations quoted above. It is significant that the principle of Jaw enunciated by the Full Bench of this Court was not even considered by the Supreme Court. 16. However, it is not necessary for me to decide whether the view of the Full Bench in Dominion of India v. Gayaprasad (supra) has been overruled by the Supreme Court--this is a point which that Court may decide one day--because even accepting Mr. Vinod Swarup's arguments, I am inclined to hold that the Plaintiff was entitled to sue. The Supreme Court has observed "it is only where title to the goods has passed that the consignee may be able to sue". It further observed "Whether title to goods had passed from the consignor to the consignee will depend upon the facts of each case and so we have to look at the evidence produced...." The simple question before me, assuming the correctness of Mr. Vinod Swarup's interpretation of the observations of the Supreme Court is whether title to the goods had passed to the consignee. The Plaintiff had alleged in his plaint that in the course of business he "got a consignment of two hundred baskets of langra mangoes in presence of his man despatched from Raj Mahal for delivery to the Plaintiff at Kashi, he being the consignee." The dispatch of the consignment was admitted by the Railway though the rest of the allegations were denied in the vague manner. I have already rejected the written statement on the ground that it has not been verified according to law. The question whether the Plaintiff had become the owner of the goods was never raised by the Railway either during the trial or in appeal. If it had been put to issue, the Plaintiff would have had an opportunity of leading evidence to establish his ownership. I do not think it would be fair at this stage to permit the Railway to raise a plea which the Plaintiff has had no opportunity to rebut. 17. If it had been put to issue, the Plaintiff would have had an opportunity of leading evidence to establish his ownership. I do not think it would be fair at this stage to permit the Railway to raise a plea which the Plaintiff has had no opportunity to rebut. 17. Even on the evidence as it stands on the record, I am inclined to hold that the Plaintiff in all probability became the owner of the goods. The transaction was between persons whose relationship excludes any suggestion that the Plaintiff was the servant of the person from whom he obtained the mangoes. Mr. Vinod Swarup relied upon a statement elicited from the Plaintiff in the cross-examination that the goods had been obtained from one Lal Mian who had asked the Plaintiff as an Arhati to sell them. He relied on the phrase Arhatmen to show that the Plaintiff was really a commission agent and not the purchaser of the goods. But the phrase 'Arhatmen' does not exclude the probability (hat the Plaintiff was not a Kachcha but a Pucca Arhiati which would mean the transfer of ownership of the mangoes. The Railway have produced no evidence to prove their case. 18. I think in these circumstances the Railway have not been able to establish that the Plaintiff was not the owner of the goods. I have already indicated that I am not inclined to allow the Railway to raise a new plea which they did not put to issue during the trial. 19. Learned Counsel submitted that this is a fit case for not awarding costs against the railway. But I see nothing in the conduct of the railway to depart from the normal rule that costs must follow the result. On the contrary, I am constrained to say that in this case as in several other cases I have observed that the Railway authorities tried to defeat the just claim of a customer by instructing its counsel to raise in second appeal technical pleas which were completely devoid of equity. In every suit against the Railway for compensation for damages to goods the real issue is whether the goods were damaged as the result of the negligence or misconduct of the railway authorities and they are fully entitled to have this question determined by the Court. In every suit against the Railway for compensation for damages to goods the real issue is whether the goods were damaged as the result of the negligence or misconduct of the railway authorities and they are fully entitled to have this question determined by the Court. But to raise, for the first time in appeal, a technical plea such as that the Plaintiff is not the Karta of the joint family betrays a desire to win the suit regardless of equity and justice. The Railway is not an ordinary litigant. It is a department of the State with a monopoly of an important form of transport. Its duty is to safeguard the legitimate interests of the citizens and not to give the impression that it is over-anxious to defeat their claims by raising technical pleas even after the Court has found that the railway is liable This sort of attitude creates a feeling; of resentment in the minds of the public which may regard it as a foretaste of the state of things when Government is in complete control of the national economy. 20. The appeal is dismissed with costs.