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2010 DIGILAW 2799 (ALL)

STATE OF U. P. v. UNION OF INDIA

2010-09-14

PANKAJ MITHAL

body2010
JUDGMENT Hon’ble Pankaj Mithal, J.—The State of U.P. had booked 3236 bags of wheat for transportation by Railways. At the destination, at the time of delivery the wheat was found short, moist and spoiled on account of which State of U.P., allegedly suffered a loss of Rs. 3,283.53 paise. The negligence was attributed solely to the Railways. 2. The State of U.P. as plaintiff instituted a suit against the Union of India through General Manager, Northern Eastern Railway, Gorakhpur and the General Manager Northern Railway, Baroda House, New Delhi for recovery of Rs. 3,283.53 paise. 3. In the suit, a preliminary objection was raised on behalf of the defendants that the suit is not maintainable in view of Article 131 of the Constitution of India. Accordingly, issue No. 6 was framed with regard to above preliminary objection. It was decided by the first Court and it was held that the jurisdiction of the civil Court stood excluded and the plaint was ordered to be returned for presentation to proper Court vide judgment and order dated 4.10.1974. The aforesaid judgment and order has been upheld in Miscellaneous Appeal also vide judgment and order dated 25.2.1977. 4. Aggrieved by the aforesaid judgments and orders, the State of U.P. has preferred this Second Appeal. The appeal was admitted on the following substantial question of law : Whether the civil Court has jurisdiction to try the suit or it should be tried by the Supreme Court of India under Article 131 of the Constitution of India? 5. Heard Sri Shrish Chandra, learned Standing counsel for the State of U.P. and Sri Govind Saran, learned counsel for the Indian Railways/ Union of India. Before proceeding to answer the above question, as the valuation of the suit as well as the appeal is only Rs. 3,283.53 paise and Section 102 CPC provides that no second appeal shall lie when the subject matter of the original suit for recovery of money does not exceed Rs. 25,000/-, on the insistence of the counsel for the respondent, I consider it appropriate to first deal with the issue as to whether the second appeal is barred and is not maintainable in view of Section 102 CPC. 6. 25,000/-, on the insistence of the counsel for the respondent, I consider it appropriate to first deal with the issue as to whether the second appeal is barred and is not maintainable in view of Section 102 CPC. 6. Section 102 CPC as it stands today was introduced by amending Act No. 22 of 2003 w.e.f. 1.7.2002 and bars second appeal in suits for recovery of money where the valuation of the original suit does not exceed Rs. 25,000/-. However, on the date of filing of the Second Appeal and its admission, Section 102 CPC was differently worded. It was as follows : Section 102 CPC- “No second appeal in certain suits.—No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount of value of the subject-matter of the original suit does not exceed [three thousand rupees]” A plain reading of the aforesaid provision makes it clear that in respect of the suits which are cognizable by Courts Small Causes no second appeal would lie if the subject matter of the suit does not exceed 3,000/- rupees. 7. The suit in question is not of the nature which is cognizable by the Court of Small Causes and moreover its valuation is also over 3,000/- rupees. Therefore, the second appeal against the judgment and orders of the lower Courts was not barred by Section 102 CPC at the relevant time. 8. The right of appeal is a statutory right and when the statute at the relevant time of cause of action provided for a remedy of an appeal, the said right cannot be taken away later on. In other words, the subsequent amendment to the aforesaid provision would not be detrimental to the appeal. 9. The Supreme Court in the case of Vitthalbhai Naranbhai Patel v. Commissioner of Sales Tax, AIR 1967 SC 344 , has held where a right of appeal is taken away after the commencement of the proceedings it will not affect the right of appeal which had vested in the litigant at the time of action. The Supreme Court in the case of State of Bombay v. M/S S.G. Firms Exchange, AIR 1960 SC 980 , also held that not even the right to appeal can be impaired by putting onerous conditions subsequently. The Supreme Court in the case of State of Bombay v. M/S S.G. Firms Exchange, AIR 1960 SC 980 , also held that not even the right to appeal can be impaired by putting onerous conditions subsequently. In view of the aforesaid, I am of the considered opinion that the present second appeal is not hit by Section 102 CPC. 10. Now coming to the substantial question of law involved in this appeal the same is no longer res integra in view of Union of India v. State of Rajasthan, AIR 1984 SC 1675 . In the aforesaid decision, the Apex Court considering the various earlier decisions concerning Article 131 held that a suit filed against the Union of India for recovery of compensation for the loss on account of damage caused to the goods belonging to the State dispatched through Indian Railways is maintainable in a civil Court and is not covered by Article 131 of the Constitution of India which confers exclusive original jurisdiction upon the Supreme Court in respect of the disputes within the ambit of the above Article. It was further laid down that Article 131 of the Constitution of India is attracted only when a dispute arises between or amongst the State and the Union of India in the context of Constitutional relationship that exists between them and the powers, rights, duties, immunities, liabilities, disabilities etc., flowing therefrom but would not cover ordinary disputes of the nature in relation to carrying on any trade or business covered by Article 298 of the Constitution of India. Thus, where the State Government has made a claim like any other consignee of goods dispatched through Railways for compensation whose success or failure depend on proof of facts which have to be established in the same way in which a private person would have to establish such a claim would essentially be a claim against the Railway administration and not actually against the Union of India who is impleaded as a party to the suit being the owner of the India Railways by virtue of Article 300 of the Constitution of India. The dispute of such a kind is actually a dispute between the Railway administration and the person instituting the suit. 11. The dispute of such a kind is actually a dispute between the Railway administration and the person instituting the suit. 11. In view of the above decision of the Supreme Court and its ratio decendai the substantial question of law raised in this appeal has to be answered in favour of the plaintiff appellant and against the respondents and it is held that the suit for claim and damages based upon Section 80 of the Railways Act was maintainable before the civil Court and would not lie before the Supreme Court. 12. Accordingly, appeal succeeds and is allowed. The impugned judgment order and decree of the lower appellate Court dated 25.2.1997 passed in Civil Appeal No. 240 of 1974 and that of the Court of first instance dated 4.10.1974 passed in Original Suit No. 272 of 1972, State of U.P. v. Government of India and others, are both set aside with no orders as to costs. —————