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Judgment
Pradeep Nandrajog, J.—No substantial question of law has been framed till date in the afore-noted appeal. Notwithstanding the fact that
law requires a substantial question of law to be framed in a second appeal, I propose to dispose of the appeal without formally framing a
substantial question of law for the reason, as would be noted from the facts noted hereinabove, due to proper issues not being framed on the
pleadings of parties and pleadings being improperly construed the suit has been disposed of without a proper trial. In my opinion, a miscarriage of
justice has ensued.
The matter requires to be remitted to the learned Trial Judge to frame correct issues. Thereafter, require the parties to lead evidence and
thereupon pronounce the final judgment.
The appellant had filed a suit for injunction to restrain the railway authorities from disposing of by auction goods entrusted to it under RR. No.
P-304835, B-304836 and B-858224 by M/s Rockwool Industries with appellant being the consignee of the goods. It was stated in the plaint that
the consignment reached Tuglakabad railway station. That the appellant approached the railway authorities to take delivery of the goods but since
original RRs were misplaced it offered indemnity bonds to take the goods. The railway authorities refused to effect delivery on receipt of indemnity
bonds. Appellant offered to furnish bank guarantee. Same was refused. On 28.7.1982 railway authorities intimated that they were exercising lien
on the goods. It was stated that railway authorities claimed Rs. 24,154/- on account of lien.
In para 7 of the plaint it was specifically pleaded as under:
That in the above mentioned letter the plaintiff was not informed as to what kind of lien was exercised against the plaintiff and what were the
alleged instructions of the headquarters office. The aforesaid letter was too vague and incomprehensible. The plaintiffs were deprived of their
goods unreasonably and without any just cause or justification or even disclosing to them the valid reason for their withholding the delivery of the
said goods. The plaintiff urgently required the said goods for continuing the processing of their business and the withholding of the delivery of the
said goods has resulted and is bound to result to further heavy loss and injury.
In the written statement filed by the railway authorities it was pleaded as under:
Para 7 is wrong and is denied. In its reply it is submitted that the plaintiff was clearly informed as to why the lien on the consignment has been
exercised by the reference vide letter No. CIID/161/CR/CF/82 dated 28.7.1982 which is being filed herewith.
In the replication filed the appellant responded to para 7 of the written statement as under:
Para 7 of the written statement is wrong and is denied. Corresponding para of the plaint is re-affirmed and re-iterated. It is denied that the
defendant ever informed as to why the lien on the consignment had been exercised by the defendant in their letter dated 28th July, 1982. The
perusal of the letter dated 20th July, 1982, would show what was conveyed by defendant No. 2 by his letter to the plaintiff firm. The said letter
may please be considered. It may be submitted that the plaintiffs were deprived of their goods unreasonably and without any just cause or
justification or even without disclosing their valid reasons in their withholding the delivery of the said consignment. The plaintiff urgently required the
said goods for continuing the process of their business. The plaintiff had suffered a good loss due to the withholding of the delivery of the said
goods and is bound to suffer further heavy loss.
Two issues were framed:
(i) Whether the suit has been instituted by a duly authorized person?
(ii) Whether the defendants are entitled to auction the goods so as to realize the alleged dues?
No evidence was led save and except the authority of the person to institute the plaint.
Vide judgment and decree dated 27.4.1987 learned Trial Judge held that the railway authorities failed to prove that there was any outstanding
amount in sum of Rs. 24,154/-, hence no lien could be exercised.
The decree was accordingly passed prohibiting the railway authorities from selling the goods.
Railway authorities filed an appeal. During the pendency of the appeal, the appellant found that the consignment had got totally damaged.
Before the Appellate Court it moved an application to amend the suit and seek damages for recovery of the value of the goods.
The appeal has been disposed of on 1.2.1995 holding as under:
The appellant specifically alleges in para 6 of the written statement that an amount of Rs. 24,154/- was outstanding and that the plaintiff had failed
to clear the same. In the replication, the plaintiff does not deny that the amount was due. It simply denies the allegation that the dues were not
cleared. Thus, if the written statement is read with the replication, it will be found that the allegation of an amount of Rs. 24,000/- and odd being
due from the company to the railways has not been disputed. If that was so, the burden shifted to the respondent company to prove that the said
outstanding had been cleared.
A perusal of the relevant pleadings of the parties show that the plaintiff never admitted in its pleadings that it owed sum of Rs. 24,154/- to the
railway authorities. On the contrary, what was pleaded by the appellant was that the railway authorities never gave basis on which it claimed lien
over the consignment. Thus, view taken by the learned Appellate Judge is in the teeth of the pleadings of the parties.
Counsel for the appellant very fairly states that learned Counsel for the parties were totally non-focused before the learned Appellate Judge.
Lien claimed by the railway authorities was for demurrage inasmuch as the goods were lying in the yard. Counsel states that an issue had to be
struck to the effect whether railway authorities were justified in not releasing the goods when bank guarantee was offered for the reason if it is held
that the railway authorities had unjustifiably retained the goods they would not be entitled to any demurrage.
Counsel further submits that if required, evidence ought to have been brought on record pertaining to the basis of demand.
I agree.
The appeal is accordingly allowed. The impugned judgment and decree dated 1.2.1995 is set aside. Even the judgment and decree passed by
the learned Trial Judge is set aside,.
The suit is restored on the file of the learned Trial Judge who would permit the appellant to formally amend the plaint with reference to
subsequent events which took place when first appeal was pending and in respect whereof appellant had sought amendment of the plaint before
the learned Appellate Court.
In light of the observations made in the present judgment a proper issue would be framed and the matter would be re-decided.
No costs.
LCR be returned.