- (1.) This is an appeal by certificate from a judgment of the Allahabad High Court in a suit filed by the plaintiff-respondent for an injunction against the defendant-appellant restraining it from realizing the sum of Rs. 93,981-8-0 on account of the alleged siding charges for the period December 1, 1949 to March 31, 1956 and from stopping the supply of wagons in the railway siding of the plaintiff and further from cancelling the agreement dated July 4, 1933 for the aforementioned reasons.
(2.) The facts necessary for deciding the appeal may be stated. By means of an agreement dated July 4, 1933 the plaintiff entered into an agreement with the Secretary of State for Indian Council through the agent of the North Western Railway (now represented by the Union of India) whereby it was agreed that the former shall lay a railway siding from Begamabad Station Yard of that railway for enabling the plaintiff to carry on its business at its premises. Clause 13 of the agreement was follows: "Freight for all classes of goods will be charged upto and from Begamabad Station. Railway Receipts and invoices shall be issued to and from the station only and in accordance with the rates from time to time published in the Goods Traffic Books of this Railway Administration will make the following charges in each direction from every wagon loaded or empty in or removed from the lines A and B mentioned in clause 15 below : (1) Per 4 wheeled wagon Re. One. (2) Per 6 wheeled wagon Re. One and annas eight. (3) Per 8 wheeled wagon Rs. Two. Clause 23 of the agreement provided : "Notwithstanding anything laid down in the foregoing clauses of this Agreement, it shall be open to the Railway Administration on giving six months' notice of such intent, to revise the charges laid down in clauses 8, 12, 13 and 19 of this Agreement." Clause 24 related to termination of the agreement in the event of non-payment of dues within one month of demand. On March, 26, 1949 the Divisional Superintendent of the E. P. Railway (successor in interest of the North Western Railway) informed the plaintiff that the rates were proposed to be increased with effect from April 1, 1949, the increased charges being mentioned in that letter. As this intimation was not in accordance with clause 23 of the agreement the plaintiff refused to agree to the increase. Other objections were also raised, one of the objections being that the charges were excessive. The Divisional Superintendent addressed another letter on May 18, 1949 informing the plaintiff that with effect from December 1, 1949 the charges mentioned therein would be made. A good deal of correspondence and discussions between the representatives of the plaintiff and the railway authorities took place and by a letter dated July 20, 1951 the Divisional Superintendent, intimated that the revised siding charges in force from December 1, 1949 were purely provisional and were subject to revision. Meanwhile and subsequent to the above date the required tests were made to determine the charges. In September l951 the Divisional Superintendent wrote to the plaintiff that the siding charges should be paid with effect from December 1, 1949 to September 30, 1951 at the following rates: (i) Per 4 wheeled wagon Rs. 5/- (ii) Per 6 wheeled wagon Rs. 7/8/- (iii) Per 8 wheeled wagon Rs. 10/- The plaintiff protested against what was called, the exorbitant nature of charges and made it clear that the letter of September 1951 did not comply with clause 23 of the agreement and that the charges were unreasonable and could not be legitimately made. Another letter dated October 26/November 6, 1951 was sent by the Divisional Superintendent saying that the siding charges to be levied with effect from first October 1951 were being assessed and would be intimated to the plaintiff and meanwhile it should continue to pay the charges demanded in the letter of September 1951 provisionally. The Divisional Superintendent addressed another letter dated November 27, 1951 explaining the result of the test and the actual cost of the shunting etc. A demand was made that the revised siding charges should be paid from December 1949 to September 30, 1951 at Rs. 4/- per 4 wheeler, Rs. 6/- per 6 wheeler and Rs. 8/- per wheeler. The plaintiff, however, did not pay the increased rates demanded. On September 29, 1955 the Divisional Superintendent addressed a letter to the plaintiff proposing revision of the siding charges with effect from April 1, 1956 after the expiry of six months according to clause 23 of the agreement. The charges as demanded were as follows: 4 wheeled wagon Rs. 120/ 6 wheeled wagon Rs. 210/ 8 wheeled wagon Rs. 350/- On May 17, 1957 the General Manager of the Railway sent a letter to the plaintiff for payment of the amount of Rs. 93,981-8-0 representing the difference between the amount due from December 1, 1949 to March 31, 1956. It was intimated that on failure to make the said payment within one month the supply of wagons would be stopped and steps to determine the agreement would be taken. In May 1957 the plaintiff served a notice under S. 80 of the Civil Procedure Code to the defendant and thereafter in October 1958 the suit out of which the appeal has arisen was filed.
(3.) Out of the issues framed by the trial court on the pleadings of the parties the following need be mentioned: (1) "Whether the enhancement of the siding charges by the defendant is unjustified, exorbitant and illegal . (2) Whether the demand of Rupees 93,981-8-0 by the defendant is illegal (4) Whether the court has no jurisdiction to try the suit - On issue No. 1 the trial court held that the charges demanded were unjustified and exorbitant. It was held that out of the demand of Rupees 93,918-8-0 the demand for Rs. 22,111-3-0 was illegal. On issue No. 4 the trial court expressed the new that it had jurisdiction to try the suit in respect of that portion of the claim whereby the legality of the enhanced siding charges had been challenged on account of being in violation of cl. 23 of the agreement but it had no jurisdiction to try the suit in respect of the second ground whereby the enhanced siding charges had been challenged as unjustified and exorbitant.;