MALLESHAPPA LINGAPPA KALLED v. UNION OF INDIA — 1974 DIGILAW 3 (KAR)

( 1 ) MISC. SECOND Appeal No. 69 of 1972 arises out of the suit OS. No,. 5 of 1968 on the file of themunsiff at Hubli. MSA No. 70 of 1972 arises out of the suit OS-No. 8 of 1968 on the file of the same Court. The parties are common in both the suits. The appellant filed the suits for recovery of rs. 1,158 in one case and Rs. 1,202 in the other which were collected as the over-charges by the authorities of the Central Railways at Bombay. The appellant is a merchant and he consigned certain goods through the railways at Hubli to be delivered to 'self' at Wadibandar, Bombay. When the goods reached their destination at Bombay over-charges were collected from the plaintiff at Bombay. The first defendant is the Union of India, represented by the General Manager of South Central Railway at Secunderabad, the second defendant the South Central Railway, represented by the General Manager of the said Railway, and the third defendant is the central Railway, represented by the General Manager of the said Railway, bombay. Hubli is under the administration of the Squth Central Railways. Bombay is under the administration of the Central Railways. Defendants 1 and 2 filed their written statements contending, among other things, that the Court at Hubli had no territorial jurisdiction to try the suits. The question of jurisdiction was tried as a preliminary issue in both the suits. The trial Court as well as the lower appellate Court have come to the conclusion that the Court at Hubli had no jurisdiction to try these suits. The plaintiff has preferred these appeals against that finding. ( 2 ) SEC. 80, Railways Act, 1890 deals with suits for compensation for loss of the life or personal injury to a passenger or for loss, destruction, damages, deterioration of non-delivery of animals or goods. Hence, it has no application to the present suits. S. 78, Cl. (B) provides for notice being issued within six months from the date of the delivery of animals or goods carried by the railway when the claim for refund of an over-charge in respect of animals or goods carried by the railway is made. Hence, the question of jurisdiction has to be decided having regard to the provisions of S. 20 CPC ( 3 ) IT is contended by Mr. Hence, the question of jurisdiction has to be decided having regard to the provisions of S. 20 CPC ( 3 ) IT is contended by Mr. R. U. Goulay, learned Counsel appearing on behalf of the appellant, that the Court at Hubli has jurisdiction to try the suits under Cls. (a) and (b) of S. 20 as well as under Cl. (c) of that section of the CPC. He has relied on the decision in Union of India v. Ladulal Jam, AIR 1963 SC. 1681 . That was a suit for recovery of a sum on account of non-delivery of goods booked from Kalyanganj, which is in West Bengal, to kanki, which is in the State of Bihar The suit was filed at Gauhati, in the State of Assam. It was alleged in the plaint that the cause of action arose at Pandu within the jurisdiction of the Court at Gauhati, the place where notice under S. 80 of the, CPC was duly served upon the defendant railway and that the suit was filed in the Court within the jurisdiction of which the defendant railway has its principal place of business by virtue of its head-quarters being at Pandu. The head-quarters of the Northern Frontier railway Administration was at Pandu which is within the jurisdiction of the Court at Gauhati. The question which fell for decision was whether the running of the railways by the Union of India cannot be said to amount to its carrying on business and that therefore the fact that the head-quarters of the Northern Frontier Railway Administration is at pandu within the jurisdiction of the Court at Gauhati does not give the court, jurisdiction under S. 20 CPC. It was held that the running of railways is such an activity which comes within the expression 'business', that the Union of India, carries on the business of railways and can be sued in the Court of the Subordinate Judge at Gauhati within whose territorial jurisdiction the head-quarters of one of the railways run by the union is situated. On the basis of this decision the Court at Hubli certainly has jurisdiction to try the suits under Cls. (a) and (b) of S. 20 of the CPC. ( 4 ) IT is contended by Mr. On the basis of this decision the Court at Hubli certainly has jurisdiction to try the suits under Cls. (a) and (b) of S. 20 of the CPC. ( 4 ) IT is contended by Mr. Balakrishna, learned Counsel appearing on behalf of the respondents that the cause of action pleaded is one arising at Bombay, and that therefore the plaintiff is precluded from urging that the Court at Hubli has jurisdiction to try the suits. In para 3 of the plaint in OS. No. 5 of 1968 it is stated that the cause of action for the suit arose when the amount was collected and also when the office of the third defendant refused to refund the amount of the over-charge. But in para 6 of the said plaint it is stated that the Court has got jurisdiction to try the suits as the consignments in question were bqqked from Hubli which is within the jurisdiction of the Court. In para 6 of the plaint in OS. No. 8 of 1968 it is stated that the cause of action arose on the dates on which the third defendant illegally collected the amount and alsq when the said office declined to refund the amount. But in para 7 it is stated that the court has jurisdiction to try the suits as the consinginents in question had been booked from Hubli. Hence, reading the plaints as a whole it is seen that the plaintiff has pleaded that the Court at Hubli has jurisdiction since the contract took place at Hubli between the plaintiff and the South Central railways, the second defendant. Under S. 20 CPC the Court will have the jurisdiction to try the suits if any of three sub-clauses (a) or (b) of (c)applies. The said Clauses are alternative and not cumulative (MSA no. 550 of 1972 decided on 19/20th September 1973 ). ( 5 ) SEP. 7 of Act 7 of 1888 added the following explanation to S. 17 of the old CPC which corresponds to S. 20 of the present Code. The said Clauses are alternative and not cumulative (MSA no. 550 of 1972 decided on 19/20th September 1973 ). ( 5 ) SEP. 7 of Act 7 of 1888 added the following explanation to S. 17 of the old CPC which corresponds to S. 20 of the present Code. The explanation stated that in suits arising out of contract, the cause of action arises within the meaning of this section at any of the folowing places, namely: (a) the place where the contract was made; (b) the place where the contract was to be performed or performance thereof completed; (c) the place, where in performance of the contract any money to which the suit relates was expressly or impliedly payable. Even after that explanation has been inserted in the present Code the law remains the same as held in People Insurance Co. v. Benoy Bhusan, AIR 1943 Cal. 199. The contract was entered into at Hubli between the plaintiff and the second defendant since the goods were consigned at Hubli railway station. The over-charge collected is stated to be authorised by Rule 115 of Goods tariff No. 32 Part I which came into force from 15-12-1965. This authority to collect over-charge must be presumed to be an implied term of the contract betwwen the plaintiff and the second defendant. ( 6 ) IN Union of India v. Brijlal Purskottamdas, AIR 1969 SC 817 , the scope of S. 80 of the Railways Act was considered, and it was observed as follows : "there was never any dqubt that the railway company which contracted to carry goqds partly over its own railway and partly over the railways of other carriers was responsible for the goods for the whole journey unless it limited its liability by agreement. The only doubt was about the responsibility of the other companies over whose railway the goods were carried. Before S. 80 was enacted there was elaborate case law on the question whether they could be held liable in tort or by recourse to the doctrine of agency or partnership. S. 80 now places the liability of all the railway administrations concerned on a firm statutory footing. Before S. 80 was enacted there was elaborate case law on the question whether they could be held liable in tort or by recourse to the doctrine of agency or partnership. S. 80 now places the liability of all the railway administrations concerned on a firm statutory footing. " hence, apart from the prqvisions of S. 80 the liability of the railway authority which contracted to carry goods partly qver its own railways and partly over the railways of other companies for the safety of the goods for the whole journey, unless it limited its liability by agreement, cannot be questioned. In Assam Cold Storage Co. v. Union of India, AIR 1971 Ass 69, the goods were booked at Laselgaqn railway station for carriage and delivery at tinsukia railway station on the North East Frontier Railway. The suit was filed in the Court at Gauhati in respect of damage caused to the goods. Under Section 80 of the Railways Act the suit should have been instituted in the Court at Dibrugarh under whose jurisdiction tinsukia, lies or elsewhere at the station of origin where the goods were delivered for carriage and the Court at Gauhati had no jurisdiction to try the suit. The plaintiff contended that under S. 20 CPC the Court at Gauhati has jurisdiction to try the suit as the defendant carries on business at pandu within the jurisdiction of the Gauhati Court. The contention that s. 80 Railways Act implieldly repeals S. 20 CPC was rejected. It was held that the Court at Gauhati has jurisdiction to try the suit under S. 20 CPC, in Ramco Textiles v. Union of India, AIR 1960 Ker. 257 , goqds were consigned at C on southern Railway to H on North Eastern Railway and the goods were lost by the railway administration after they had reached H. It was held that the defendant was properly named as 'the Union of India, and that the person therefore sued is the Central Government. It was further held that a suit relating to a railway qwned and administered by the Central Government lies against that Government irrespective of the identity of the railway administration whose default gave rise to the cause of action. It was further held that a suit relating to a railway qwned and administered by the Central Government lies against that Government irrespective of the identity of the railway administration whose default gave rise to the cause of action. It was further held that whether it be the administration of the Southern Railway to which the goods were delivered by the consignor or the administration of the North Eastern Railway where the goods were lost that is to be sued, the proper person to be named as the defendant is the Central Government, and that the Government not having a split personality, the suit cannot be regarded as confined to the administration of the North Eastern railway though the defendant was described in the plaint as the North eastern Railway. Since the goods were booked at C, it was held that the court at C has jurisdiction to try the suit. The lower Court relied on the decisions in AIR 1922 All. 448 and AIR 1928 Bom. 548. They are not cases of claim against the railways and are therefore not applicable to the present case. In Sheo Dayal Nirajan Lal v. GIP Rly. , AIR 1926 All 698, it has been held that where goods are carried over by two railways, and the transferee railway over-charges the gopds, a suit to refund does not lie against the transferring railway. The, goods were handed over to the O and R. Railway administration at Hapur. The contracting parties were the O and R railway administration and the plaintiffs. The GIP Railways carried the goods as the agents of the contracting party, the O and R Railway administration. In the circumstances the principal alone was held liable and not the agent. That was a case where the principal and the agent were two different companies, the owners being different and distinct. In the present case both the Central Railways and thr South central Railways are owned by the Central Government. Hence that decision makes no difference to the liability of the defendant in the present case. In Firm Moti Lal Raghubar Dayal v. Bombay Port Trust Rly. In the present case both the Central Railways and thr South central Railways are owned by the Central Government. Hence that decision makes no difference to the liability of the defendant in the present case. In Firm Moti Lal Raghubar Dayal v. Bombay Port Trust Rly. , AIR 1939 All 649, it has been held that where a railway company undertakes to carry goods from a station on its own railway to a station on another railway, the contract is with the former company which receives the goods for the whole distance and the latter is only its agent. It was further held that the railway company which booked the goods was liable to refund the over-charge collected from the plintiff by the agent company at the place of destination since the contract took place between the plaintiff and the railway company which booked the goods. Hence from this point of view also the place of contract being the place where the goods were consiogned, namely, Hubli the Court at Hubli has jurisdiction to try the suit. ( 7 ) THE finding of the lower Courts on the preliminary issue in the two suits is therefore erroneous and are set aside. The decrees of the lower courts are therefore set aside the suits are remitted to the trial Court for trial on other issues and disposal. Parties will bear their own costs in these second appeals. --- *** --- .