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Judgment
Amarjeet Chaudhary, J.—This is a Defendant''s appeal against whom a decree for recovery of Rs. 26,925.60 has been passed by the Sub Judge Ist Class, Amritsar.
The Plaintiff, who is Respondent before this Court, had filed the suit against the Defendant contending, inter alia that the Plaintiff-Firm is a registered partnership Firm and Shri Swaran Singh is one of its registered partners. It is further added that a consignment of 50 bags of Copra Rai weighing 25 Qtls. was booked for transit by Rail Ex-Quillon to Amritsar vide R. R. No. 25210, invoice No. 96, dated July 24, 1973, by M/s. Charanjit & Company, Alleppey, to self as consignee at railways risk. The goods valuing Rs. 26,925.60 were sold to the Plaintiff-Respondent and were to be supplied by the consignor to which full amount was paid. The consignor had endorsed the R. R. to the Bank and the Bank endorsed the same to the Plaintiff after collecting the said amount and interest from the Plaintiff Respondent. Hence the Plaintiff Respondent became owner of the goods covered under the consignment and endorsement on the R. R. entitled the Plaintiff to take delivery of the consignment. The Plaintiff could not get the delivery of the consignment because it never reached Amritsar and was reported to be not traceable. In ordinary course, it would have reached Amritsar in a month from the date of its despatch. As a result, the Respondent had preferred the claim u/s 78-B of the Indian Railways Act, through notice dated October 22, 1973, for Rs. 26,925.060 with the General Manager, Northern Railways and Southern Railways. According to the Plaintiff-Respondent the goods of the consignment have not been delievered, so, the Plaintiff, in addition to price of the consigned goods, also, claimed a sum of Rs. 2423.25 being interest on the amount by way of damages at the rate of 12 per cent per annum from October 25, 197.3 till filing of the suit. The allegation of the Plaintiff-Respondent is that loss of goods is due to the act of gross negligence and misconduct on the part of Railway-Administration and its staff as the goods were booked with the Railways at railway risk. So the Plaintiff Respondent Firm had filed the suit before the trial Court for recovery of Rs. 29,348,85 after serving notice u/s 80 of the Code of Civil Procedure, dated July 25, 1974, upon the Defendant.
The Defendant, inter alia, contended that the plain tiff-Firm was not registered and Shri Sarwan Singh was not its registered partner and the Plaintiff has no locus standi to file the suit; that the Plaintiff Firm was not the owner of the goods on the relevant date and no valid notice u/s 78-B of the Indian Railways Act and u/s 80 of the C. P. C. were served before filing the suit; that the goods were not packed in continuity with the prescribed packing conditions and the consignee were guilty of such act of omission and commission which have absolved the Railways from all liabilities. It was further added that the consignment in question was looted by unruly mob at Duggirala Railway Station on August 4, 1973 and, therefore, the Railway Administration was protected u/s 78(c)(ii) of the Indian Railways Act However, the consignment of 50 bags of copra rai booked vide R R. No. 025210 dated July 24, 1973 from Ex Quillon to Amritsar was admitted.
The trial Court on pleadings of the parties, framed the following issues:-
(1) Whether the Plaintiff-firm is duly registered under the Indian Partnership Act and Swaran Singh is registered partner thereof ?
(2) Whether the suit on behalf of the Plaintiff-firm has not been filed by any competent person ?
(3) Whether the written statement has been properly verified in accordance with law, and has been signed and verified by a duly authorised person ?
(4) Whether the notice served on Defendant u/s 78-B, Indian Raiiwas Act, is invalid ?
(5) Whether the Plaintiff-Grin has locus standi to sue ?
(6) Whether the goods not delivered had not been packed in accordance with prescribed rules of packing of such goods ? If so, to what effect ?
(7) Whether consignor/consignee were guilty of such acts/ omissions as absolved the Railways of all responsibilities for delivery/restitution of goods or payment of compensation ?
(8) Wether the goods in question were looted, by an unruly mob at Duggirala railway station on 4 8.1973 as alleged and the Defendant is protected u/s 78(c)(ii) of the Indian Railways Act ?
(9) Whether the Railways used proper care and foresight in the carriage of goods ?
(10) Whether any loss was caused to the Plaintiff by any negligence or misconduct of the Railways or their employees ?
(11) To what compensation, if any, is the Plaintiff entitled ?
(12) Is the Plaintiff entitled to the interest, sales-tax, misc. charges, claimed ?
(13) Has the Plaintiff served requisite notice u/s 80 C. P. C. before filing the suit ?
(14) If so, is the said notice invalid and not in accordance with law ?
The trial Court recorded the findings on issues Nos. 1, 2,4 to 14 in favour of the Plaintiff-Respondent and issue No. 3 against the Plaintiff-Respondent, and consequently a decree for recovery of Rs. 26,925.60 was passed in favour of the Plaintiff Respondent and against the Defendant-Appellant with proportionate cost of the suit.
Before I examine the findings recorded by the learned trial Court it is pertinent to observe here that the Defendant-Appellant was allowed as many as five opportunities to lead its evidence, but it failed to do so. However, it moved an application under Order XXVI Rule 4, Code Of Civil Procedure, for examining some of its own official witnesses on commission. After considering the merit of the application and after hearing the counsel for the parties the said application was declined by the trial Court vide its order dated September 15, 1977, which order was never challenged by the Defendant-Appellant in revision and ''that order became final. Consequently, no evident was led by the Defendant-Appellant whereas the Plaintiff-Respondent led the evidence and on the basis of evidence before it, the learned trial Court decreed the suit of the Plaintiff Respondent.
Now, in the present appeal after final disposal by the trial Court, the Defendant-Appellant has sought to challenge the order of the trial Court whereby application of the Defendant-Appellant for examining the witnesses on commission was rejected. Besides, the said grounds, the Defendant-Appellant has taken similar grounds on merits as taken in the written statement viz. the suit was not filed by competent person and the Plaintiff had no locus standi to file the suit. It is also the ground of the Defendant-Appellant that M/s Chandrajit & Co., Alleppey, the consignor of the goods, was not impleaded as a party so the suit was liable to be dismissed for non-joinder of necessary parties. It is also alleged that notice u/s 78-B of the Indian Railways Act was not served upon the Defendant before filing the suit. Briefly, the Defendant-Appellant took all the pleas taken by it before the learned trial Court and averred that the Defendant-Appellant was not afforded adequate opportunity to produce all its evidence and prayed for the reversal of the judgment and decree passed by the trial Court and dismissal of the Plaintiff''s suit with costs throughout.
I have heard the learned Counsel for the parties and perused the case file. As regards the ground of the Defendant-Appellant that it was not allowed to examine its witnesses on commission, which has allegedly resulted in non-grant of opportunity to lead its evidence, it is observed that the Defendant-Appellant cannot agitate the said issue at this stage, particularly when it never challenged the order of the trial Court dismissing the application of the Defendant-Appellant for examining the witnesses on commission within limitation through a revision. Moreso, the cumulative effect of Order XXVI Rule 4 read with Order XVI Rule 19, Code of Civil Procedure, is that a party should be afforded opportunity to arrange the evidence of such witnesses who is not within the jurisdiction/distance and is a third party, that is no party to the proceedings. It is well settled that the witnesses, who are parties to the suit, are rarely allowed to be examined on commission on the ground of distance from the residence/place of duty of the witnesses, particularly when the so-named witnesses are employees of the party In the present case there was no difficulty in procuring their evidence. The exercise done by the Defendant-appellent appeared to be an abuse of process of law to prolong the litigation as it could not produce its evidence despite grant of five opportunities and the application for examining the witnesses, on commission, on the ground of distance were qua its own employees, which is seldom heard of, particularly, when the Railway Administration issue free passes to such witnesses and the issuance of commission by the Court could have been a costly affair, having extra burden on the Railway Administration Hence, there is no force in the contention of the learned Counsel for the Defendant-Appellant that the learned trial Court has committed an illegality on this count or that it was not afforded full opportunity to defend the case.
The findings recorded by the learned trial Court on issues Nos. 1, 2, 4, 5, 6 to 9 and 10 to 14 are not liable to be upset which are based on the evidence led by the Plaintiff-Respondent to which there is no rebuttal on behalf of the Defendant-Appellant.
As regards issues Nos. 1 and 2, documents Exhibits PW 3/1 and PW 3/2 fully establish that the suit had been filed by the competent person and that the Plaintiff-Firm is duly registered under the Indian Partnership Act, 1932. As regards issue No. 3, it is in favour of the Defendant and against the Plaintiff-Respondent but it does not affect the merit of the case so it has been rightly settled. Regarding issue No. 4, there is notice Exhibit PW 3/4 dated October 27, 1973, postal receipt-Exhibit PW 3/5 and AD. dated 1.11.1973 Ext. PW 3/6 and the Plaintiff-Respondent has proved on record that notice u/s 78-B of the Act ibid was duly served upon the Defendant. Under issue No. 5 the Plaintiff successfuly proved the consignment of goods vide Bill of consignment Exhibit PW 3/12 showing the sale of goods to the Plaintiff-firm and as per entry in the account book of the Plaintiff Exhibit PW 3/14, proved that the amount was paid by the Plaintiff Respondent to the seller-M/s. Chandrajit & Co. Alleppey. Kashmir Singh (PW 2), a Clerk of Indian Overseas Bank, Amritsar, testified that M/s Chandrajit & Co. had drawn a bill on the Plaintiff-Firm and that the Bank realised the requisite amount from the Plaintiff Firm who was then handed over the R. R. after making endorsement Exhibit D.1/A on the back of the R. R. Exhibit D.1. This witness also produced invoice receipt Exhibit P.1 and Bill Exhibit P.2 relating to the consignment. These documents clearly prove that the Plaintiff-Respondent had locus standi to file the suit, it being owner thereof
On issues Nos. 6 to 9 there is no evidence of the Defendant-Appellant so the same were rightly decided against the Defendant-Appellant.
On issue No. 10. there is a statement of Swaran Singh (PW 3) and the Defendant-Appellant also admitted that the consigned goods were not delivered to the Plaintiff or anybody else. There is no rebuttal on this issue also, so the finding of the trial Court on this issue is also affirmed.
As regards issues Nos 11 and 12, since the Plaintiff has proved its title to the consigned goods and its loss while in the custody of Railways, so it has been rightly held that the Plaintiff-Respondent is entitled to claim the compensation. However, the interest has been declined on the ground that the damages cannot be awarded over damages by way of interest Since there is no appeal of the Plaintiff-Respondent nor any cross-objections to this effect, so the findings on this issue are also upheld.
Under issues Nos. 13 and 14, the Plaintiff-Respondent has clearly proved service of notice u/s 80 of the C. P. C. (Exhibit PW 3/7), dated July 25, 974, along with its postal receipts (Exhibits PW 3/10 and PW 3/9) and A. D receipts (Exhibits PW 3/10 and PW 3/11) showing the receipt of notice in the office of the Defendant-Appellant and there being no rebuttal, these issues were rightly decided in favour of the Plaintiff-Respondent and against the Defendant-Appellant
Learned Counsel for the Defendant-Appellant argued that in view of the decisions reported in Sarjug Prasad Ishwar Purbey Vs. Union of India (UOI), Firm Kesrimal Ratanlal Sarda and Co. Vs. Union of India (UOI), . Makhan Lal Malhotra and Others Vs. The Union of India (UOI), and Union of India (UOI) and Others Vs. The Tata Iron and Steel Co. Ltd., mere endorsement on railway receipt is not sufficient and does not prove the ownership. I am afraid to accept the contention of the learned Counsel. because PW 3 Swaran Singh, in unambiguous terms, with the help of the documents proved the title of the Plaintiff-Firm to the consigned goods. Hence, the authorises cited by the learned Counsel for the Defendant-Appellant are not applicable to the facts and circumstances of the case. On the contrary Jallan and Sons Limited v. The Governor-General In Council and Ors. (1948) 50 P. L. R. 290, is fully applicable to the present case in which it was held that endorsement on R. R. does transfer the ownership.
Learned Counsel for the Defendant-Appellant further argued that the Railway Administration was protected u/s 78 (c)(ii) of the Act ibid, but there is no evidence to that effect on the record. Since the Defendant-Appellant admitted the receipt of the goods for transportation through Railways so the onus was shifted upon them to prove that the same were lost due to reasons beyond their control and in the absence of any rebuttal to the evidence led by the Plaintiff-Respondent, the appeal of the Defendant-Appellant is bound to fail.
Learned Counsel for the Appellant also argued that mandatory provisions of Order XXVI Rule 4 and Order XVI Rule 19 of the C P.C. were not complied with by the trial Court. I have already discussed this matter in the forgoing paragraphs. However, a decree cannot be reveased merely on the basis of an irregularity in the proceedings, besides the fact that there is no irregularity in the present case, particularly when the Defendant Appellant never challenged the order of the trial Court dismissing its application for examining the witnesses on commission.
Last argument of the learned Counsel for the Appellant was that no certificate was obtained by the Plaintiff Respondent showing the booking of consignment at railway-risk as required u/s 73 of the Indian Railways Act. There is sufficient evidence on the record in the shape of R. R. and testimony of PW 3 Swaran Singh which clearly shows that the Railway Administration had charged ordinary freight with no concession. Hence, it was the liability of the Railway Administration to arrange the delivery of goods to consignee at the risk of the Railways and there is no rebuttal evidence in this regard.
For the afore-mentioned discussion, I have no option except to affirm the findings recorded by the learned trial Court on all the issues and to dismiss the appeal of the Defendant-Appellant. However, the parties are left to bear their own costs for this appeal.