Nathuni Ram and Another vs Secy. of State and Another

Saunders, J.—The Plaintiffs in the suit out of which this second appeal has arisen brought some machinery, including an engine, for use in a mill from a firm in Calcutta, Balmar Lawrie and Co., who delivered the machinery to the East Indian Railway at Howrah for despatch to the plaintiffs at Giridih after executing a risk note in form B. The goods were consigned to the sender and the railway receipt was sent to a bank endorsed in favour of the plaintiffs who were to get it on payment of the balance of the price of the machinery due from them. The engine and another part of the machine were loaded on a truck at Howrah on 15th February 1929.

It is not known when the truck reached Asansol, but at 2 p. m., on 19th February while it was in the goods yard, the load which it contained, consisting of about a hundred packages besides the engine and the other part of the machine, was seen by the yard master to be on fire. The fire was extinguished in 15 minutes. This part of the consignment reached Giridih on 17th March, but the plaintiffs refused to take delivery of it. The rest of the consignment had already arrived but the plaintiffs declined to accept it on the ground that it was no use to them without the engine. They accordingly sued the Bast Indian Railway (defendant 1), the Secretary of State (defendant 2) and Balmer Lawrie and Co. (defendant 3) for recovery from one or other of these defendants of the price of the machinery.

The plaintiffs'' case against defendant 3 was that this defendant has agreed to deliver the machinery in good condition at Giridih. The plaintiffs gave no evidence of any such agreement and the trial Court accepted a statement made by the manager of the firm that a suggestion had been made by the firm to the plaintiffs but not accepted by the latter that the machinery should be booked at railway risk and should be insured. The learned Munsif therefore dismissed the claim against the firm but finding that the damage to the engine was due to misconduct by the railway administration or its servants he decreed the suit against the Secretary of State.

An appeal against this decision was preferred by the Secretary of State, the plaintiffs only being made respondents and the District Judge allowing the appeal dismissed the suit. As Balmer Lawrie and Co., were not a party to the appeal the learned Judge did not decide whether, as alleged by that firm, verbal instructions had been given by the plaintiffs to execute a risk note in form B, but he indicated in his judgment that he would have been reluctant to believe this allegation and he stated that had there been any assertion in the plaint that the firm had consigned the goods under the risk note without instructions from the plaintiffs he would have required the firm to be made a respondent in the appeal.

5.The plaintiffs have preferred this second appeal against both the Secretary of State and the firm and with the memorandum of appeal presented an application for leave to join the firm as a respondent. Leave was given by a Division Bench, it being left open to the added respondent to raise the plea of limitation during the hearing of the appeal. Thus the first question for considerations is whether a decree can be passed against defendant 3 in view of the fact that this defendant was not a party to the appeal in the Court of the District Judge. The learned advocate for the appellants relied upon a decision of this High Court in the case of Padarath Mahto v. Hitan Singh 1924 Pat 773 in which it was held that it was the duty of the lower appellate Court in circumstances similar to those of the present case to bring on the record as respondent under Order 41, Rule 20 the omitted defendant, that no question of limitation arose under this rule and that the High Court had power to add the defendant as respondent and either pass the decree which should have been passed by the lower Courts or remand the case to the lower appellate Court for decision in his presence.

If Rule 20 of Order 41 was correctly interpreted in that case, the matter is concluded and the appeal against defendant 3 can be heard on the merits. A different view of the rule however has been taken by the Privy Council in two recent cases, Mohamed Khaleel Shirazi & Sons V. Les Tanneries Lyonneses 1926 PC 34 and V.P.R.V. Chockalingam Chetty v. Seethai Ache, 1927 PC 252. In the first of these cases the plaintiff sued a firm and the firm''s agent for a sum of money. The claim against the former was decreed by the first Court and dismissed against the latter except as regards costs. Both the defendants appealed to the High Court but the plaintiff preferred no appeal against the order dismissing the suit against the agent. The High Court modified the decree against the firm and dismissed the suit as against the agent, and the plaintiff then preferred an appeal to His Majesty in Council against both the firm and the agent. The Privy Council held that the appeal, so far as the agent was concerned, was in effect an appeal direct to His Majesty in Council from the trial Judge which is not allowable under the CPC and also that Order 41, Rule 33 of the Code was not intended to apply to such an appeal.

In the other case a plaintiff brought two suits against a purchaser of certain property and also against purchasers from him for setting aside the sales and the suits were dismissed on the finding that the sales were all valid. In this appeal the plaintiff did not join as respondents the first defendant in one of the cases and two of the defendants in the other with the result that the right of appeal against these defendants became time barred. With reference to Order 41, Rule 20, Sir John Wallis observed:

The addition of a respondent whom the appellant has not made a party to the appeal is expressly dealt with in Order 41, Rule 20, on which the plaintiff relied both in the appellate Court and before their Lordships. That rule empowers the Court to make such party a respondent when it appears to the Court that ''he is interested with the result of the appeal.'' Giving these words their natural meaning and they cannot be disregarded it seems impossible to say that in this case the defendants against whom these suits have been dismissed, and as against whom the right of appeal has become barred, are interested in the result of the appeal filed by the plaintiff against the other defendants.

It is contended by the learned advocate for the appellants that the present case is distinguishable from the cases before the Privy Council because in those cases the plaintiff had omitted to join in their own first appeals the parties against whom they had failed to obtain decrees, while in the present case the appellants could not have appealed to the lower appellate Court against a decree that was in their favour. The fact however remains that before any relief was claimed in an appellate Court against defendant 3 the time for filing an appeal against him had expired and as therefore he was not a party interested in the appeal to the District Judge in the sense in which this phrase has been interpreted by the Privy Council no decree can be passed against him in this appeal; and there is the further difficulty in the appellants'' way that it is an appeal direct to this Court so far as this defendant is concerned from a decree of the trial Court which the CPC does not permit when the first appeal lies to the District Judge. The question whether the decisions of the Privy Council applied to a situation similar to that in the present case was considered by the Calcutta High Court in the case of Saktiprasanna Bhattacharya v. Naliniranjan Bhattacharya. 1981 Cal 788. Their Lordships observed:

If he (the defendant against whom the suit had been dismissed by the trial Court and who had not been made a party to the appeal to the lower appellate Court by another defendant) cannot be considered to be a person who is still interested in the result of the appeal or if he cannot be considered to be a person who may be affected by the result of the appeal, within which expression is included the determination of the appeal itself ... then it must follow that the powers of the Court, however ample they may be within the ambit of Order 41, R.20 and Rule 88, cannot be used to the detriment or prejudice of the person against whom the suit has been dismissed in the trial Court and against whom no appeal had been preferred before the lower appellate Court. It is true that the case of Mahomed Khaleel Shirazi has been noticed in the judgment of Suhrawardy and Garlick, JJ., in the case of Bejoy Kumar Sen v. Kusum Kumari Debi 1929 Cal 815, but it does seem to us that the matter has been put beyond all doubt by the decision of the Privy Council in the case of V.P.R.V. Chockalingam Chetty v. Seethai Ache, 1927 PC 252.

These observations apply with equal force to the present case which for the same reasons, must, in my judgment, be held to be covered by the authority of the Privy Council decisions. The appeal therefore against defendant 3 must be taken to be time-barred. The suit as against the Secretary of State was decreed by the lower appellate Court for reasons which have been summarised by the learned District Judge as follows: (1) The engine was loaded in a covered wagon instead of in an open truck. (2) The truck was detained at Asansol for an unnecessarily long period.

(3) The railway yard at Asansol, though enclosed by walls, is a large one but no watchman is kept there and if there had been a watchman the fire might have been extinguished sooner. (4) The railway administration withheld a report of an enquiry made as to the cause of the fire which the plaintiffs had called for. The learned Judge has shown that no misconduct in any sense in which the term can be legitimately used, can be inferred from the first three of these circumstances and the reasons for his conclusion need not be stated for the finding has not been seriously questioned by the learned advocate for the appellants. The learned advocate however contended that the omission to place before the Court the report regarding the fire in response to a summons issued at the instance of the plaintiffs to produce it entitled the plaintiffs to an inference that the fire was the result of some misconduct on the part of the railway employees.

There seems to me to be no substance in this contention. The risk note absolves the railway administration from any obligation to disclose how a consignment is dealt with when damage to it is caused by fire but apart from this consideration no presumption of misconduct of an unspecified character can be drawn from the omission to exhibit the report when the report itself, not being admissible in evidence, could not have been used to prove misconduct, assuming that it was considered by the person who made the report that the servants of the company were responsible for the outbreak of fire or the failure to extinguish it before serious damage was done to the consignment. I would accordingly dismiss the appeal with costs to be apportioned between defendants 2 and 3.

Agarwala, J.

I agree.