Decided on December 06,1935



Maugham, J. - (1.) THE appellant company-the Gujarat Ginning and Manufacturing Co. , Ltd.-appeal from an injunction granted by the District Judge at Ahmedabad and affirmed by the High Court of Bombay restraining them from interfering with the passage of railway wagons between the respondents' land and the line of the Bombay Baroda and Central India Railway upon railway lines laid down in the appellants' premises. Part of the order complained of requires the appellants to replace certain rails which they had taken up. THE suit was brought by the Motilal Hirabhai Spinning, Weaving and Manufacturing Company, Limited (the respondents) in the Court of the Subordinate Judge at Ahmedabad on June 29, 1923. THE trial Judge had dismissed the suit.
(2.) A third company, the Gujarat Spinning and Weaving Company, Limited, has to be referred to and as its name is very similar to the name of the appellants, it will be referred to in this judgment as the "third company". The three companies just mentioned appear all to have been engaged in cotton manufacture, but it is not possible to form an opinion whether, and if so how far, they were rivals in business, or were in the habit of assisting one another, or were independent altogether. In 1903 the three companies had for a long time been managed by the same firm of managing agents and from before that year until his death in 1913 the individual who in fact managed the affairs of all three companies was one Mansukhbhai. On his death in that year leaving an infant son, the business of all three companies was in fact managed by his brother and partner Jamnabhai until 1922, when Jamnabhai retired. Different agents were then appointed for the respondents and for the appellants, and in 1923 the present suit and another suit to be hereafter mentioned were brought by the respondents. The railway siding which is the subject-matter of the dispute was applied for in 1903. It appears to have been completed and to have been brought into use about 1909. It continued to be used by all three companies until after 1922. From exhibit 30, a plan of the siding which has been put in evidence, it appears that at a point marked " L " on the plan, where the line of the Bombay Baroda and Central India Railway runs north from Ahmedabad station to Sabarmati, is the entrance into the siding. This is upon the land of the appellants and on the appellants' land the rails run towards the south to a turn-table at a point marked " E ". They then run to the west past a point marked " A " to a point marked " X " where they cross the eastern-western boundary between plot 209 belonging to the appellants and plot 210 belonging to the respondents. They continue to the west beyond " X" to a point named " B" on the plaintiff company's land. Between " A " and " X " already mentioned the lines, though on the land of the appellants, are very near to the boundary. As originally constructed the siding had another branch, running southwards from " E " to a point marked " G " near to the eastern boundary of the appellants' land. From " G " this branch of the siding went westwards as far as " H" on the land of the appellants and beyond " H " to " D " on the land of the respondents. At present, however, there is no dispute about this portion " G ", " H", " D ". The present dispute relates to the lines indicated by the letters " L ", " E ", "x", the question being whether the respondents have in some and what sense a right of passage for their wagons over " L", " E", " X" on the appellants' land.
(3.) IN 1903 the original application for a siding was by letters dated October 15 and November 2, 1903. Both letters are written in the name of Jamnabhai Mansukhbhai, the agency firm, as agents for the appellants, whose name is at the head of the letters; and in both the railway company is asked to give a siding " for our mill as well as the Gujarat Spinning and the Motilal Hirabhai Mill under our management". The Bombay Baroda and Central INdia Railway Company in June, 1904, issued a memorandum of terms for the construction of sidings for the use of mills or other industries. This provided that the ordinary maintenance would be done by the railway " at the expense of the users of the siding" and that on the completion of the work to formation level all permanent way material would be provided, laid and maintained by the railway. The users were to pay to the railway six per cent, per annum on the cost of all works except maintenance. IN the event of the traffic being insufficient, the railway company were to have the right to remove the permanent way materials unless the users should elect to pay extra. The siding was not to be used for any traffic other than that of the mill or industry for which it was originally provided. There is a further provision that : 11.The Bombay Baroda and Central INdia Railway shall have the right to construct or allow to be constructed under similar terms any extension of the siding and to work traffic over the siding to or from the extension for which extension a separate agreement with the railway company shall be entered into by the new applicants. There is a provision that the users of the siding were to provide a weigh bridge and quarters for a weigh clerk and all labour necessary for weighing. The weigh clerk was to be a railway servant paid by the railway. As regards the responsibility for management, Clause 14 provided : 14.The users of all sidings constructed under these terms will have to provide for and bear costs of all operations within the sidings, except such shuntings by locomotives as the railway may undertake. They must see that railway rules and regulations for the working of such sidings are strictly attended to by their employees and they will be held responsible for any accidents or loss or damage that may ensue, on neglect or disobedience of these rules by their employees. It will be the duty of the users of the sidings to obtain all such rules and to see that their employees are acquainted with them. Further the users of the sidings shall be solely responsible for all damage done by their employees to railway wagons and railway property of any description, while in use on the sidings.;

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