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2006 DIGILAW 290 (PAT)

Union Of India v. Kamalendu Shukla Alias Kamrendra Shukla

2006-04-03

NAVANITI PRASAD SINGH

body2006
Judgment Navaniti Prasad Singh, J. 1. This revision application has been filed by the Union of India through General Manager, Eastern Railway against the impugned order dated 22-5-1999 passed by the learned sub-Judge 7th, Patna by which this application filed under Sec. 47 of the Code of Civil Procedure objecting to the execution of the money decree of Rs. 1,55,000.00 has been rejected. The objection u/s. 47 of the Code of Civil Procedure was taken on the ground that, the decree was a nullity as the civil courts had no jurisdiction to try the suit. The matter was covered under the exclusive jurisdiction of the Railway claims Tribunal. 2. The facts are brief. The plaintiff allegedly fell down in a ditch of the railway platform and sustained injuries. He had to undergo long medical treatment. He filed the suit in 1988 claiming damages from the Railways whose duty is to maintain the railway platform. It was alleged the Railways were negligent and, as such, are liable to compensate and pay damages. It is stated that notice as contemplated u/s. 80 of the Code of Civil Procedure was duly served. As recorded in the judgment of the Trial Court notices were duly served on the defendant but they chose not to appear. As such, proceedings proceeded ex parte and an ex parte judgment and decree was delivered in favour of the plaintiff awardee a damages to the extent of Rs. 55,000.00 . When this decree was put in execution the aforesaid objection u/s. 47 of the Code of Civil Procedure was taken by the defendant and was rejected by the trial Court. 3. Mr. Mahesh Prasad, learned Counsel appearing for the Union of India has submitted that in view of the provision of Railway Claims Tribunal Act, 1987 and the provision of sec. 109 of the Indian Railways Act, 1989 a suit of such nature was barred and claim could only be considered by Railway Claims Tribunal. It is on this solitary ground it is sought to be urged that the judgment and decree are nullity. 4. It is well settled by judgments including that of the Apex Court being) AIR 1970 Supreme Court 1475 that the executing Court has no jurisdiction to go behind the decree except in cases where it can be demonstrated on the face of the record that the judgment and decree are a nullity. 4. It is well settled by judgments including that of the Apex Court being) AIR 1970 Supreme Court 1475 that the executing Court has no jurisdiction to go behind the decree except in cases where it can be demonstrated on the face of the record that the judgment and decree are a nullity. In view of the said principle it is now to be determined whether the judgment and decree which is sought to be executed is a nullity in the sense as described by the, said decision of the Apex Court. 5. It is not under dispute that the alleged mishappening/ accident took place on 4-9-1987 and the suit was filed in the year 1988. It is, therefore, to be seen whether on the date when the proceedings were instituted in Civil Courts of competent jurisdiction was the jurisdiction of the civil Courts barred. As stated above. Mr. Mahesh Prasad, learned Counsel appearing for the petitioner in support of this revision has relied on the provision of sec. 109 of the Railways Act, 1989 and the Railway Claims Tribunal Act, 1987 . It would be seen that sec. 109 of the Railways Act, 1989 itself was enforced with effect from 1st July, 1990. Similarly, Railway Claims Tribunal Act, 1987 came into force with effect from 8th November, 1989. Both the enforcement dates are much after the filing of the suit and, as such, it cannot be said that when the suit was filed the Civil Courts lacked Jurisdiction. 6. Mr. Mahesh Prasad then relied on the provision of sec. 82A of the Indian Railways Act, 1890 . If the said two sections as referred to earlier were not in force then Indian Railways Act, 1890 would be deemed to be in force. 6. Mr. Mahesh Prasad then relied on the provision of sec. 82A of the Indian Railways Act, 1890 . If the said two sections as referred to earlier were not in force then Indian Railways Act, 1890 would be deemed to be in force. Section 82-A of the Indian Railways Act, 1890 is quoted hereunder: 82-A.(1) When in the course of working an accident occurs, being either a collision between trains of which one is a train carrying passengers or the derailment of or other accident to a train or any part of a train carrying passengers, then, whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a person who has been injured or has suffered loss to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding any other provision of daw to the contrary, be liable to pay compensation to the extent set out in Sub-sec. (2) and to that extent only for loss occasioned by the death of a passenger dying as a result of such accident, and for personal injury and loss, destruction or deterioration of animals or goods owned by the passenger and accompanying the passenger in his compartment or on the train, sustained as a result of such accident. (2) The liability of a railway administration under this section shall in no case exceed ten thousand rupees in respect of any one person. 7. A bare reference to the aforesaid provision would show that the jurisdiction of the Court is not barred. Only the liability by virtue of Sub-sec. 2 of Sec. 82-A is limited to a maximum of Rs. 50,000.00 . Even the substantive provision i.e. Sub-sec. (1) of sec. 82-A contemplates an accident being either collision between trains one of which passengers carrying train or derailment or other accident to a train or any part of a train carrying passenger. Therefore, in my view; the accident must relate to a train accident and not any accident in relation to the business of running train much less an accident occurring on the railway platform unconnected with the movement of train. Mr. Mahesh Prasad then referred to rules made under Indian Railways Act, 1890 with reference to sec. 82-A. I need not examine the same for the very simple reason that sec. Mr. Mahesh Prasad then referred to rules made under Indian Railways Act, 1890 with reference to sec. 82-A. I need not examine the same for the very simple reason that sec. 82-A has been held to be inapplicable. As such, any rule framed therein with reference thereto is equally in applicable. It is accordingly found that the decree was not a nullity and could not be successfully challenged in a proceeding u/s. 47 of the Code of Civil Procedure. 8. Accordingly, I find no merit in this application and it is dismissed accordingly.