Decided on June 25,1975

Monoranjan Banik Respondents


Baharul Islam, J. - (1.) THIS is an application under Section 115 of the Code of Civil Procedure (hereinafter called 'the Code') The application has been made on behalf of the two defendants, the Union of India and the District Commercial Superintendent, N.F. Railway, Lumding and is directed against an order passed by the Assistant District Judge No. 2, Gauhati, under Order 23 Rule 1 of the Code.
(2.) THE plaintiff instituted the suit in the Court of the Assistant District judge, aforesaid, for a declaration that the plaintiff was entitled to the assessment delivery of the goods under the Rule 1843 of the Indian Railway Commercial Manual Volume II", that the proposed sale of the goods on auction was illegal and void, and for a perpetual injunction. The facts of the case, briefly stated, are that one consignment of 100 cases of Biri was booked 'self' by one Khaliluddin Abdul Sattar of Ballygunge Railway Station on 13 -8 -1971 under Invoice No. 63, R/R No. C -743687 to be delivered at Karimganj Railway Station. The consignment arrived at the destination on 28 -3 -1972. The plaintiff was the endorsee of the railway receipt. So he demanded assessment delivery of the consignment, but the defendants refused to do so on the ground that assessment delivery was not warranted. The plaintiff, therefore, refused to take delivery of the consignment, Thereafter the consignment was brought to New Gauhati Railway Station for disposal by public auction under the provisions of Sections 55 and 56 of the Indian Railways Act.
(3.) THE plaintiff then instituted in the Court of the Assistant District Judge, aforesaid, a suit being T. Suit No. 39/37 of 1972 for the reliefs mentioned above. Along with the plaint he also filed an application for granting a temporary injunction restraining the defendants not to sell the consignment in public auction and got an order in his favour. The order of temporary injunction was made absolute by the Court after hearing both the parties, The order of injunction was challenged before the High Court in M.A. (F) No. 63 of 1972 and the High Court eventually vacated the order of injunction. The defendants then sold the consignment by public auction on 26 -2 -1973 for a sum of Rs. 43,100/ -. The plaintiff then filed before the Assistant District Judge an application under Order 23 Rule 1 of the Code praying for permission to withdraw the suit with liberty to institute a fresh suit. The learned Court allowed the plaintiff to withdraw the suit with liberty to bring a fresh suit. The plaintiff was also directed to pay a cost of Rs. 30/ - to the defendants. This order has been challenged by this application.;

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