UNION OF INDIA Vs. ABDUL KADIR
LAWS(KER)-1963-10-42
HIGH COURT OF KERALA
Decided on October 22,1963

UNION OF INDIA Appellant
VERSUS
ABDUL KADIR Respondents


Referred Judgements :-

A.MAHADEVA AYYAR V. THE SOUTH INDIAN RAILWAY CO [REFERRED TO]
DEVI DITTA MAL V. SECRETARY OF STATE [REFERRED TO]
P R NARAYANASWAMI IYER VS. UNION OF INDIA [REFERRED TO]
RAMCO TEXTILES VS. UNION OF INDIA [REFERRED TO]
GOVERNOR-GENERAL IN COUNCIL VS. GOURI SHANKER MILLS LTD [REFERRED TO]


JUDGEMENT

S.VELU PILLAI,J. - (1.)THIS appeal arises in a suit for damages against the Union of India.Two cases of Will's Navy Cut Cigarettes containing 200 packets of 500 cigarettes each,were despatched on the 13th March 1947,by the Imperial Tobacco Company of India from Bangalore East,a station on the Madras and Southern Mahratta Railway,to the plaintiff's address at Punaloor,a station on the South Indian Railway.The plaintiff took delivery of the consignment on the 3rd April 1947,and on opening the same before the Customs Authority according to rules,it was found that 35,500 cigarettes had been damaged by rain water which had collected within.The plaintiff thereupon made a claim for compensation for the loss of such cigarettes by Ex.P -5 on the same day,which was addressed to the Chief Commercial Superintendent of the South Indian Railway.After some correspondence the Chief Commercial Superintendent repudiated the claim by Ex.P -10,dated the 11th August 1947.The plaintiff then gave notice of suit by Ex.P -12,dated the 3rd November 1947,addressed to the General Manager,South Indian Railway,Trichinopoly,and received the reply Ex.P -12(b ),dated the 7th November 1947,intimating that Ext.P -12 had been forwarded to the Chief Commercial Superintendent for disposal and that all further communications may be addressed to that officer.The claim not having been satisfied,the plaintiff commenced the present suit in the Munsiff's Court at Kottarakara on the 14th March 1948,impleading as the sole defendant the Dominion of India,which had by that time come to own the two railway administrations.The suit was pending in that court for more than five years,at the end of which the defendant still remained to be served with summons.Presumably on the strength of section 21 of the Travancore -Cochin Civil Courts Act 1951 which came into force on the 25th December 1951,and which provided that a suit against the Government of India ought to be instituted in the District Court having local jurisdiction,the Kottarakara court ordered on the 3rd October 1953,that the plaint be returned for presentation to the proper court.The plaint was actually returned to the plaintiff on the 20th October 1953,and was presented by him to the District Court Quilon on the 29th October 1953.
(2.)THE defendant contested,pleading limitation as the main defence.The plea was overruled by the Additional District Judge,on the ground that the suit as filed in the Kottarakara court was within the period of limitation prescribed by Article 23 of the Travancore Limitation Act,1100,corresponding to Article 30 of the Indian Limitation Act and that the proceedings before the District Court,Quilon were in continuation of the same.It may be mentioned,that at the time of the delivery of the consignment to the plaintiff the Travancore Civil Procedure Code of 1100 and the Travancore Civil Courts Act II of 1084 were in force.In the Travancore Civil Procedure Code there was no provision for the issue of a notice of suit against a railway administration as in section 80 of the Indian Civil Procedure Code.There was no bar in the Travancore Civil Courts Act to the institution of a suit against the Government of India in the Munsiff's Court,the specific prescription in section 12 of that Act being in respect of suits against the Travancore Government.Therefore the suit as laid in the Munsiff's Court at Kottarakara was validly instituted,and continued to be pending in that court until the plaint was returned to the plaintiff.Section 21 of the Travancore -Cochin Civil Courts Act relates to the institution of certain classes of suits only,including a suit against the Government of India in the District Court having local jurisdiction.It is not necessary to decide whether by this provision of the Act,the Munsiff at Kottarakara was deprived of jurisdiction to try the suit which had been validly instituted before him,because the order for return of the plaint was implemented and the plaint re -presented in the District Court,Quilon,whose jurisdiction to try the suit is undoubted.It was the same plaint that was presented in the District Court.So the position was that the suit which was validly presented in the Kottarakara Court and which was pending in that court until the plaint was returned,was continued after re -presentation in the Quilon District Court.I do not think that the interval of 9 days which was taken in the act of re -presentation of the plaint,can spell any discontinuity in the proceedings in the two courts or render the proceeding in the Quilon Court a new and independent proceeding.An analogous case was decided by the Travancore High Court in Lakshmi Pillai Karthiyani Pillai v. The Dewan of Travancore, 1944 T.L.R.927.In that case the suit was filed by a devaswom in the Munsiff's Court for arrears of jenmikarom and after the devaswom was assumed by Government,the plaint was returned for presentation to the District Court;it was held that the proceedings in the Munsiff's Court and later in the District Court were continuous.There is no need to consider the application of section 14 of the Indian Limitation Act for excluding the period of the pendency of the suit in the Kottarakara Court,for the obvious reason that that court was competent to entertain the suit,which did not fail for any defect of jurisdiction or other cause of a like nature.I hold that the suit was filed within the time prescribed by law.
(3.)THE second contention was that the suit as laid against the Dominion of India and continued against the Union of India,without naming the two railway administrations or the one or the other of them intended to be made liable is badly framed.The two railway administrations,the Madras and Southern Mahratta Railway and the South Indian Railway were taken over by the Central Government before the date of the suit,and that was why it was instituted against the Dominion of India in the year 1948.Section 79 of the Civil Procedure Code is useful as indicating how a suit against the Central Government may be laid.A learned Judge of this Court has in Ramco Textiles v. Union of India, 1960 K.L.T.352 taken the view,that in such cases the defendant to be impleaded is the Union of India,and words of description of the defendant in the cause title,such as owning or representing a particular railway administration,were considered to be words of superfluity which may be ignored.The bench decision of the Madras High Court in P.R.Narayanaswami Iyer v. Union of India, A.I.R.1960 Madras 58 which has exhaustively considered the question was followed by the learned Judge.I am also of the same view and hold that the suit was properly laid. The next question is whether there has been a claim,as a condition precedent to the suit for damages.At the material time the Travancore Railways Act(Act XXII of 1115)was in force.Section 27 of that Act which corresponds to section 77 of the Indian Railways Act reads as follows:
A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss,destruction or deterioration of animals or goods delivered to be so carried,unless his claim to the refund or compensation has been preferred in writing by him or on his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway. Railway administration is defined in section 2(2)of that Act as meaning the South Indian Railway Company ;.The material part of section 70 which corresponds to section 140 of the Indian Railways Act is as follows: Any notice or other document required or authorised by this Act to be served on the railway administration may be served on the Agent,South Indian Railway,Trichinopoly.

;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.