SHAMSUDDIN WAEZUDDIN Vs. UNION OF INDIA REPRESENTING EASTERN RAILWAY

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiff alleged that a consignment of two cases of Agarbatti was booked by the Modern Indian Trading Company at a station called Jaswantpur on the Mysore Railway for despatch to the plaintiff-firm which was the consignee, to whom the consignment was to be delivered at the Patna Junction Railway Station on the Eastern Railway. The consignment was not delivered to the plaintiff and after some correspondence with the Railway the plaintiff instituted a suit for recovery of Rs. 651/8/- on account of loss of the goods. The suit was contested by the Union of India on the ground that the suit was not maintainable by reason of non-compliance of Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure. The suit was dismissed by the trial court, but the decree of the trial Court was reversed by the learned Subordinate Judge in appeal. The Union of India preferred a second appeal to the High Court, and on the 6th September, 1957, Kanhaiya Singh J., allowed the appeal of the Union of India and ordered that the suit should be dismissed with costs throughout.

(2.) This appeal is brought on behalf at the plaintiff under Clause 10 of the Letters Patent.

(3.) On behalf of the appellant two arguments were addressed. It was submitted in the first place that Section 80 of the Railways Act was not applicable to the present case, and in view of the decision of a Division Bench of this High Court in Lakshmi Narayan Gauri Shankar v. Union of India, AIR 1958 Pat 489, the learned Single Judge should have granted a decree to the plaintiff for the amount of damages claimed. It was contended on behalf of the appellant that there was difference in legal effect between a claim on the basis of non-delivery and a claim on the basis of loss of goods, and if the claim of the plaintiff was purely nne for non-delivery of goods the principle of Section 80 of the Railways Act cannot be made applicable so as to entitle the defendant to have the suit dismissed on that ground. 1t was, however, submitted on behalf of the respondent, the Union of India, by the learned Government Advocate that the decision of this High Court in AIR 1958 Pat 489 may have to be reconsidered in view of the recent decision of the Supreme Court in Governor-General in Council v. Musaddi Lal, AIR 1961 SC 725, where the Full Bench decision of this Court in Jais Ram Ramrekha Das v. G. I. P. Ry. Co, AIR 1929 Pat 109 has been expressly overruled. It is, however, not necessary for us to express an opinion on this aspect of the case, because we think that the appeal must be dismissed On the other ground that the notice Under Section 80 of the Code of Civil Procedure has not been validly given.