Lalji Chaturvedi Shastri vs Union of India and Another

S.K. Phaujdar, J.—The Appellants had imitated Original Suit No. 203 of 1967 In the Court of Munsif Saidpur at Ghazipur for recovery of damages amounting to Rs. 280.33 p. It was stated that for his medical profession the Plaintiff had purchased 26 packets of medicines weighing 4 quintals from Defendant No. 2 and the same were consigned on 11.6.1966 by Defendant No. 2 to the Northern Railway at Hardwar Railway Station for carriage to Ghazipur City In safe and sound conditions. When the consignment reached the destination it was found pilfered and short delivery was effected on 9.5.1966 under protest. It was stated that 5 cases of medicines were found pilfered and medicines were removed therefrom. Open delivery was taken for these cases and respective weights were taken. It was alleged that this short delivery was caused due to negligence and misconduct of the servants of the Northern Railways and North Eastern Railways and the Plaintiff suffered a loss of Rs. 256.95 p. due notices were given under the CPC and the Northern Railways Act and thereafter the suit was filed.

The suit was contested by the Union of India but Defendant No. 2 did not contest the suit and it was heard ex parte against him. The notices served on the Union of India was described as invalid and time barred. It was stated that the Plaintiff had no cause of action and there was no negligence or misconduct on the part of the servants of the Railway Administration and the Defendants were not liable for any loss, if caused to the Plaintiff. The consignor had not followed the Railway Rules for packing the materials and it was the consignor who would be liable for the loss and not the Railways.

Issues were framed touching the question of validity of the notices, limitation and on the point of entitlement of the Plaintiff to the relief and liability of the Defendant No. 1 for the same. The Issues were decided in favour of the Plaintiff by the trial Court and the suit was decreed by the judgment and decree dated 1.4.1972.

The Union of India preferred a First Appeal C.A. No. 92 of 1972 impleading the Plaintiff as also Defendant No. 2 as Respondent. Two points were convened by the Union of India in the first appeal. It was urged that the notice u/s 78 of the Indian Railways Act was not served at all and if at all the same was served, it was not within the statutory period of 6 months from the date of booking of the consignment. It was also urged the Railways had delivered 26 packets to the Plaintiff in their original condition of working in which they were delivered to the Railway authorities. The Appellants was not liable for the loss of weight of the consignment when the contents of individual packets were not supervised by the Railway authorities at the time of the packing of consignments and when Plaintiff did not allow the consignment to be weighted in Order to work out the shortage if any as against the total weight of these packets. The first point was decided against the Union of India. As regards the other points agitated before the first appellate Court, it was held that the consignment booked on 1.11.66 had reached the destination station on 2.2.66. The Plaintiff applied for open delivery although 21 packets of consignment were accepted by him on 9.2.66 without weight. He claimed weighment for the rest live packets only. Open delivery was from on 10.4.66 of these live packets. The total weight was shown for all 26 packets together with and not of the individual packets. The first appellate Court held that the Plaintiff failed to say what were the Individual weights at the point of booking for these 5 packets and so claim of short delivery was not maintainable. He allowed the appeal and dismissed the suit of the Plaintiff by his judgment and decree dated 7.8.75.

The Plaintiff accordingly preferred this second appeal on the ground that the Railways had accepted the fact of short delivery through Ext. A. 8 and no further inquiry was permissible under the law and the first appellate Court had acted with all materials irregularity in going against the admission of the Railway authorities. This admission, according to the Appellants was fully confirmed by Ext. 6 which was a copy of the remark at the open delivery and loss was admitted in the written statement. Accordingly, the responsibility of the loss was clearly with the Railways and the first appeal should not have been allowed.

The appeal having been preferred in 1975, no substantial question of law was framed at the time of admission as required after the amendment of CPC in 1976. The Respondent Union of India raised a question that the second appeal was barred u/s 102, Code of CPC as the nature of the claim was cognizable by the Court of Small Causes. This point was opposed by the Appellants stating that the suit was not cognizable by the Small Causes Court and Section 102, Code of CPC would not stand in the way or in this second appeal. It was alternatively urged by tire Appellants that if under any interpretation of the law the second appeal is thought to be barred, a revision would always He against the Impugned Order and this Court would suo motu interfere to correct an Illegality. It was urged, on the merits of the case, by the Appellants that there was no discussion in the first appellate judgment of the admission of the Railways as made in Exts. A-6. A8 and the written statement. The Respondent urged in reply that the Section 115, Code of CPC spoke of discretionary power and the claim was barred as loss was not proved at all.

According to the plaint case, the total weight of 26 cases of medicines was 4 quintals. It was alleged all these cases were of equal weight. It was alleged that 21 cases were duly delivered but 5 were found cut and pilfered and the medicines were removed. The weight of these 5 cases Nos. 5 10, 14, 17 and 21 were201/2 Kg., 171/2., 121/3., 11 Kg. respectively as found on open delivery. The notice Under Sections 80, Code of CPC and 78 of the Indian Railways Act spoke booking of 4 quintals of medicines. Ext. A6 indicates that 26 packing with actual weight 4.98 quintals were booked at Hardwar for destination of Ghazipur. There is no indication of the individual weight of these 26 packing. According to the cases of the parties Ext. A/8 shows open delivery and actual weight of the individual 5 packing for which open delivery was taken. The lower appellate Court met the point of the short delivery upon a calculation that when total weight of packing of 26 packets was 4.98 quintals and when, according to the plaint, all the packing were of equal weight each should have been slightly over 19 Kg. Out of 5 packing taken on open delivery had weighed 20 Kg. or above. This suggests that the packing could not have been of equal weight. This argument and calculation of the first appellate Court appears to be sound.

The plaint is silent as to detail of the medicines booked although In Paragraph 4 of the plaint it was claimed as to what were the shortage for different types Ayurvedic medicines and what were the quantities thereof. It is not indicated as to how these details of the shortage could be known or ascertained. The claim for compensation could stand on the proof of the loss and there is sufficient force in the argument of the Respondent that the loss was not at all legally proved by the Plaintiff firstly, because of the absence of individual weight of the packing and secondly, because of lack of averment as to the details of the medicines booked.

Section 102, Code of CPC provides that no second appeal would like in any suit or the nature cognizable by the Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed Rs. 2,000. This amount "Rs. 3,000" was substituted for the amount Rs. 1,000 In the year 1967. The suit having been filed prior to 1975. The limit would be Rs. 1,000 only. On this point the learned Counsel for the Respondent relied on the case law reported In Chunilal Rikhabchand and Co. Vs. The Union of India and Another, . Section102. Code of CPC does not say that for the application of this Section, the suit should be cognizable by the Courts of small causes as no second appeal lies against decrees of small causes Court. It only speaks of suit of the nature cognizable by the Courts of small causes. This suggests that this Section covers such suits which as regards their subject-matter would lie within the jurisdiction of the Court of Small Causes but which are outside the Jurisdiction by reason of the amount claimed being beyond the pecuniary limit of the small causes jurisdiction. The test for finding out whether the particular suit is or is not of the nature cognizable by the Courts of small causes, Is to see whether it Is excepted under the Second Schedule to the Provincial Small Causes Courts Act, 1887 and what Is to be considered under this Section is whether the suit is of the nature cognizable by Court of small causes and not whether It was or could have been so taken cognizance of by the Courts of small causes.

The Provincial Small Causes Courts Act was also referred to by the Appellants with reference to Section 15 and Schedule II. It was urged that Clause 35(1) of Schedule II takes the present suit out of Jurisdiction of the Small Causes as it was a suit for injury to the Plaintiff in a case not specified in the foregoing Sub-Clause of 35. A reading of Clause 35 of Schedule II to the Provincial Small Causes Courts, Act, 1887, indicates that It contemplates a suit for compensation for causing death of a person or wrongful arrest, restraint or confinement, malicious prosecution, libel, etc. and all the Sub-Clauses cover cases of personal injury. Clause (1) is the concluding Sub-Clause and it speaks of the residual situation which is not covered by the other Sub-Clauses of Clause 35 for compensation for personal Injury. The term Injury as used in Sub-clause (I) cannot be equated to a loss in a commercial transaction. Thus, Clause 35(1) does not take out the present suit from the Jurisdiction of the Court of the Small Causes and Section 102, Code Of CPC would stand as a bar to the second appeal. The Respondent relied upon the case reported in Chunilal Rikhabchand and Co. Vs. The Union of India and Another, , wherein it was held that a suit for compensation against Railway for loss or injury to goods was within the cognizance of the Court of Small Causes. This Court has already found that the present suit was of the nature cognizable by a Court of Small Causes and considering its valuation a second appeal was barred u/s 102, Code of Civil Procedure.

The last point urged on behalf of the Appellants was that in case the appeal be treated untenable u/s 102, Code of Civil Procedure, the Court would suo motu convert it into an application u/s 115, Code of CPC in exercise of Its inherent powers and could set aside the decree on the grounds of illegalities pleaded. This point was answered by the Respondent with reference to a Full Bench decision of the Allahabad High Court as reported in Bisheshwar Prasad Gautam Vs. Dr. R.K. Agarwal, . A suit cognizable by the Court of Small Causes was tried on the regular side and decreed notwithstanding the U.P. Civil Law Amendment 1972 bringing in the nature of the suit under Jurisdiction of the Court of Small Causes. Second appeal was apparently incompetent u/s 102, Code of CPC An argument was advanced that it could be converted into a revision application. It was held that the power was discretionary and it was not a fit case for conversion of the appeal into a revision. In the case at our hands it has been held that the second appeal is incompetent in view of Section 102, Code of CPC the powers of the High Court u/s 115, Code of CPC have been Invoked by the Appellants during argument. A power of revision may be exercised if the subordinate Court appears to have exercised a jurisdiction not vested in it by law or to have failed to exercise a Jurisdiction so vested or if it acted in the exercise of its jurisdiction illegally or with material irregularity. The suit, although of the nature of one cognizable by the Court of Small Causes, was chosen to be filed in a regular Court by the Plaintiff. The first appeal was also contested in the regular Court. Appreciation of the evidence was very much within the jurisdiction of the Courts below and there is nothing to infer that there had been any material irregularity in exercise of their Jurisdiction by the Courts below. Rather it has been found that the plaint fell because of failure of giving the details of the loss and in fact, loss was not proved at all. Under these circumstances, it will not be a fit case to convert the second appeal into an application for revision.

All the points raised by the appeal having failed, the appeal also fails and is dismissed. The judgment and decree of the first appellate Court is confirmed. The parties are to bear their own costs.