S. Saghir Ahmad, J. - (1.) Respondent's suit for recovery of a sum of Rs. 2,333.61 p. charged as demurrage by the Railway Administration on account of failure to unload wagons within the free time, was decreed by the trial Court, namely, the District Munsiff at Guntur, for Rs. 966/- with interest at the rate of 6 per cent per annum. The decree was set aside by the first Addl. District Judge, Guntur, on the ground that all the ten box wagons through which bulk - rock phosphate fertiliser was transported from Vishakhapatnam Port to Krishna Canal Railway Station had reached destination and thereafter shunted to the respondent's siding on May 5, 1971 at 3.30 A.M. and during the course of unloading, which commenced at 6.30 A.M., only five wagons were unloaded by 9.00 A.M. within the free time available to the respondent, and since all the ten box wagons were not unloaded, the Railways were entitled to levy demurrage for all the 10 wagons under the Rules. The lower appellate Court had placed reliance upon the Goods Tariff Rules of the Southern Railway, Part 1-A, which provides as under:"The entire group of box wagon placed for unloading will be treated as one unit for the purpose of levy of demurrage charges., i.e. even if one wagon out of the group of two or more is detained for unloading beyond the prescribed free time, the demurrage will be levied on all the box wagons in the group."
(2.) The above Rule was struck down by the High Court in the Second Appeal as ultra vires and the decree passed by the trial Court was maintained.
(3.) In the present appeal, which is directed against the judgment of the High Court, it is contended on behalf of the learned counsel for the appellant that there was no occasion for the High Court to have looked into the validity of the Goods Tariff Rule quoted above or to hold that Rule to be ultra vires the Railways Act, 1890. This contention appears to be absolutely correct.;