1. This is a Second Appeal by the plaintiffs arising out of a suit against the Union of India for recovery of damages on account of non-delivery of certain bales of cotton piece-goods. On 19-4-48 Messrs Sagarmal Subhkaran consigned to the B.B and C.I Railway (now the Western Railway) at Ahmadabad 54 bales of cotton piece goods for carriage to Kishanganj on the North Eastern Railway deliverable to the plaintiffs who were the consignors. On 29-5-48 they took open delivery of the said consignment.
2. It transpired then that certain number of articles had been pilfered and removed from 2 of the 54 bales of cotton piece-goods and 3 bales had been removed entirely. The plaintiffs instituted two suits being (1) Money Suit No. 128 of 1949 for recovery of Rs. 278/8/6 on account of the price of the articles removed from two of the bales, and (2) Money Suit No. 157 of 1949 for recovery of Rs. 3331/10/3 on account of the price of the non-delivered 3 bales. Both the suits were tried analogously by the Munsif, 2nd Court, Kishanganj.
3. He passed a modified decree in Money Suit No. 128 of 1949 and dismissed the other suit, namely, Money Suit No. 157 of 1949 with costs. The Railway Administration did not prefer any appeal from the decree in the former suit.
4. The plaintiffs appealed to the District Judge from the judgment of the Munsif in Money Suit No. 157 of 1949. The learned Additional District Judge who heard the appeal confirmed the decision of the learned Munsif and dismissed the appeal with costs. The learned Additional District Judge dismissed the suit on the ground that it was barred under the provisions of rule 2 of Order II of the CPC.
5. I may state here that the learned Munsif had held that there was no misconduct or negligence on the part of the Railway Administration. With this finding, the learned Additional District Judge was not in agreement, and he thought that it was necessary for the Railway Administration to disclose some more facts. He was inclined to remand the case on that ground but refrained from doing so, because, in his opinion, R. 2 of O. II appeared to be a bar to the suit.
6. The only ground that has been urged on behalf of the appellants is that in the peculiar circumstances of this case R. 2 of O. II has no application. It will appear that the entire consignment consisting of 54 bales, was booked at one time and was deliverable to the plaintiffs at Kishanganj. It is not a case of two separate and distinct consignments. What happened was that 3 bales of cotton piece-goods were removed in their entirety, and out of two bales only certain articles were pilfered. The submission of the learned Advocate for the appellants is that these two circumstances constituted two different causes of action for the plaintiffs for which two suits were maintainable.
7. I am unable to assent to this argument. The important fact is that the entire consignment was not delivered to the plaintiffs and the plaintiffs were entitled to claim from the railway the damages for both the removal of the entire bales of cotton piece-goods as well as the removal of a few articles from two bales. This claim cannot be bifurcated so as to constitute two different causes of action. It is said that in one case notice under Section 77 of the Railways Act was necessary, while in the other case it was not so. This is not a circumstance to entitle the plaintiffs to claim by two separate suits the damages, one on account of the pilferage and the other on account of the removal of the entire bales.
8. In my opinion, the removal from the whole consignment constituted one cause of action and it was necessary for the plaintiffs to bring one suit. This cause of action will not be affected, because the plaintiffs had to establish different facts in the case of both in order to entitle them to damages. I think that this case comes within the mischief of O. 2, R. 2 of the CPC, and the suit is not maintainable. There is no good ground for reversing the unanimous findings of the Courts below.
9. In the result, it is ordered that the appeal be dismissed with costs.
D.R.R
10. Appeal dismissed.
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