Radhe Lal and Another vs East Indian Railway and Others

Mullick, Ag. C.J.

On 14th January 1922 the firm of Kalu Ram Brijmohan of Bombay consigned three bales of cloth by Railway to the firm of Ramlal-Lachman Ram of Shaikhpura in the District of Monghyr. While the goods were in transit the latter firm assigned them to the present plaintiffs Radhe Lal and Ganga Prasad. It is admitted that delivery was to be made at Shaikhpura by the East Indian Railway Company. On 9th February 1922 the Company in question delivered only one bale and on 24th October 1922, the plaintiffs lodged a suit before the Munsif of Jamui claiming compensation from the Agent of the East Indian Railway for the loss of the two bales. The firm of Ramlal-Lachman Ram were sued as pro forma defendants.

The plaint which was filed on 24th October was not properly stamped and was returned to the plaintiffs. On 28th October the plaint was re-filed with a proper Court-fee and was accepted.

On 21st November 1922, the East Indian Railway appeared and asked for time to file a written statement. Time was granted and the written statement was filed on 3rd January 1923.

After various adjournments the case was taken up on 13th December 1923. The defendant Railway then took a new ground and urged that the suit was incompetent against the Agent and that if it was sought to substitute or add the Company the time for doing so had expired. The Munsif accepted this argument and held that the frame of the suit was bad and make a decree in favour of the defendants.

The plaintiffs then went on appeal to the Subordinate Judge of Monghyr who on 21st July 1924, set aside the Munsif''s order and remanded the suit for trial on the merits.

A second appeal was then preferred to the High Court and on 18th December 1924, Das, J. disagreeing with the Subordinate Judge restored the order of the Munsif and dismissed the suit.

The present Letters Patent Appeal is against the order of Das, J.

The learned Judge relying on the decisions in Sinehi Ram-Bihari Lal v. Agent, East Indian Railway Co. AIR 1921 Pat 485 and East Indian Railway Co. v. Ram Lakhan Ram AIR 1925 Pat 37 held that this was a case brought against the Agent of the Railway and not the Railway Company and that the plaintiffs were not entitled to any relief against the Company, and the learned Judge laid down his view of the law in the following words: "In my opinion when there were two known persons in existence and the plaintiff brings the suit against one of them and afterwards applies to have the other brought on the record as a defendant on the ground that he all along intended to sue the other and that in substance he sued the other, and no question of representation arises in the case, it is impossible to maintain the view that the case is one of mis-description." There is no reason for dissenting from this statement of the law. It has been accepted in other cases and also recently in Agent, Bengal Nagpur Ry. Vs. Behari Lal Dutt, . The question now before us depends not upon the correctness of the proposition as stated above but upon its application to the facts of this case. Was the suit against the Railway in substance or not? If it was a suit against the Agent, then obviously no relief can be given against the Railway Company but the point is whether upon a consideration of the plaint and the circumstances of the caste it is possible to hold that in truth and substance the plaintiff sued not the Agent as a designated person but the Railway Company as a corporate body. That is a question of fact and must be decided upon the evidence in the case. The decision in the other cases cannot, therefore, be any guide. Now the view that the learned Subordinate Judge took in appeal was that the suit was in substance one against the Railway and that it was competent to proceed. This is a finding of fact which is conclusive in second appeal but it is urged on behalf of the respondent before us that there is no evidence to support it. It is necessary, therefore, for us to see whether there was any evidence upon which the learned Judge was competent to come to the conclusion that this was really a case of mis-description.

In order to come to a finding upon this point it is necessary to see what the plaintiffs did. In their plaint they describe the first party defendant as the "Agent of the East Indian Railway." In para. 5 they state that the two bales wore lost when in the custody of the defendant first party. In para. 6 they state that they made the demand to the Agent. In the relief portion they pray for judgment against the defendant first party as "Agent of the East Indian Railway Company." In their application of 24th October 1922 asking for issue of process they describe the defendant not as Agent but as the East Indian Railway Company. In filing the deficit Court-fee with their plaint on 28th October they again repeat this description.

Let us now see what the defendant did. The defendant who appeared on 21st November 1922 was not the Agent but the Company. The defendant who filed the written statement on 3rd January was again not the Agent, but the Company and no objection was taken to the competency of the suit until 12th December 1923. It is pointed out by the appellant that if that ground had been taken at the earliest moment the error could easily have been remedied within the period of limitation which appears to have not expired till about February 1923. In reply it is urged on behalf of the respondent that para. 1 of the written statement does take the objection. That paragraph runs as follows:--That the suit as framed is not maintainable." It is clear, however, from the fact that the Railway Company appeared on 21st November and also filed a written statement that this objection had reference, not to the designation of the defendant but to other grounds upon which the suit of the plaintiff''s was liable to fail.

Let us next see what the Court did. In the order sheet it describes the suit as one between Radhe Lal, plaintiffs and the East Indian Railway Company and others defendants. On 21st November 1922 the Court accepts a petition from the Railway Company for time and on 3rd January 1923 it accepts the written statement not from the Agent but from the Company. It is true that process was issued upon the Agent but that was clearly in consequence of the provisions of Section 140, Indian Railways Act.

It is clear, therefore, that the plaintiffs the Company and the Court till 13th December 1923 all thought that the suit against the Agent was but against the Railway Company.

Is this, therefore, a case in which the plaintiffs have deliberately chosen to proceed not against the principal but his servant? Clearly the plaint differs from that in East Indian Railway Company v. Ram Lakhan Ram AIR 1925 Pat 37 for here in the prayer portion the plaintiffs claim against the defendant first party as Agent and they make it clear that they desire to proceed against the corporation and not against the Agent in his personal capacity.

In my opinion the facts of this case are such that the decision in East Indian Railway Company v. Ram Lakhan Ram AIR 1925 Pat 37 has no application.

There was evidence on which the Subordinate Judge could find that this was a case of mis-description and his finding inconclusive.

The appellant also urges that the Munsif''s orders of 21st November 1922 and of 3rd January 1923 are really orders substituting the Railway Company as a defendant in the suit. Order 1, Rule 10, Civil P.C., would, therefore, apply and no question of limitation would arise. It is true that no formal amendment of the plaint was made. This should have been done but the omission was an irregularity and I do not think it vitiates the order of the Subordinate Judge.

With regard to the general question as to what is the correct way of designating the defendant in a claim against a Railway Company the point has been argued but it is unnecessary to deal with it in detail.

The Civil P.C., 1882 and the present Code both contemplate that a registered corporation should be described by its official name and title. In the case of an unincorporated or unregistered Company the names of the individuals must be given or the ordinary name by which the Company is known and under which it carries on its business. There are companies constituted by Statute which are permitted to sue or be sued in the name of an officer or trustee. As to this class provision is made in Section 435, of the Code of 1882, but Order 29, of the present Code of 1908 is silent. The omission, however, is remedied in the Appendix to the Code which makes it clear that this class of Company may be sued through the designated officer. Therefore, in the case of the East Indian Railway the proper name under which the Company should be sued is the name and style under which it carries on its business. A suit against that Agent would be incompetent and would fix no liability upon the Company. The Company has no registered office in India but the Indian Railways Act provides that an officer named the Agent may be appointed in India upon whom service may be made of all notices and processes addressed to the Company. The appointment of such an officer, however, does not in any way relieve the plaintiff of the duty of suing the proper parson and of correctly describing him.

If a plaintiff deliberately chooses to sue not the Company but the Agent he cannot by any decree which he obtains in the suit bind the Company. If, however, upon a fair reading of the plaint it is made out that the description of the defendant is a mere error and that the Company is the real defendant then the suit may proceed against the company.

Here the Railway did in fact appear and conducted the cases till the 12th December 1923 on the footing that they were the real defendants in the suit.

In these circumstances the judgment of the learned Judge of this Court must be set aside and the appeal must be decreed with costs. The order of the Subordinate Judge will be restored and the case will proceed to trial as directed by him.

Kulwant Sahay, J.

I agree.