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AMICUS AI
Citation Codes
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Case Number
Attorney(S)
  • For Appellant/Petitioner/Plaintiff: P.K. Bose
  • Adv.; For Respondents/Defendant: R.S. Chaterji and H.R. Das
  • Advs.
Judges
  • Shambhu Prasad Singh
  • Shiveshwar Prasad Sinha, JJ.
Acts
  • Section 77 of the Indian Railways Act and Section 80 of the CPC.
  • illustrations (b) of Section 238 of the Indian Contract Act
  • (b) of Section 238 of the Indian Contract Act.
  • Section 157 of the Bengal Tenancy Act.
  • Section 73 of the Indian Railways Act
  • SECTION 37 ADVOCATES ACT 1961
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For Appellant/Petitioner/Plaintiff: P.K. Bose
  • Adv.; For Respondents/Defendant: R.S. Chaterji and H.R. Das
  • Advs.
Judges
  • Shambhu Prasad Singh
  • Shiveshwar Prasad Sinha, JJ.
Acts
  • Section 77 of the Indian Railways Act and Section 80 of the CPC.
  • illustrations (b) of Section 238 of the Indian Contract Act
  • (b) of Section 238 of the Indian Contract Act.
  • Section 157 of the Bengal Tenancy Act.
  • Section 73 of the Indian Railways Act
  • SECTION 37 ADVOCATES ACT 1961
See more information ...
Smart Summary

Structured Summary of the Opinion (per provided text)

Factual and Procedural Background

The appeal was brought by the Union of India (owner) through the Eastern Railway and Northern Railway administrations (defendant first party) against a money decree for compensation for nondelivery of 11 bags of yellow mustard seeds (weighing 925 kilograms as per the railway receipt, though wrongly stated as 9.25 kilograms in lower pleadings and judgments). The consignment was said to have been booked from Bindki Town Out Agency to Patna City by defendant No. 3 and consigned to the plaintiff (self). The plaintiff alleged that defendant No. 3 consigned the 11 bags for sale in the plaintiff's gaddi, endorsed the railway receipt in favour of the plaintiff's concern, and that the plaintiff paid Rs. 708.72 (including miscellaneous expenses) to Allahabad Bank, Patna, receiving the railway receipt though the total value per bijak was Rs. 991-64 P., the balance to be paid after sale to defendant No. 3.

The plaintiff alleged non-delivery of the consignment despite correspondence and notices under Section 77 of the Indian Railways Act and Section 80 of the CPC. The railway administrations failed to disclose the whereabouts of the consignment; Eastern Railway administration replied that it was not liable. Paragraph 10 of the plaint averred that defendant No. 3 had been impleaded to avoid objections and future trouble. The principal relief claimed was a decree for Rs. 1106-1194 NP. (sought against the defendants or such defendant or defendants who may be held liable).

At trial, defendant No. 3 did not contest the suit; only the railway administration (defendant first party, the appellant here) contested. The trial Court dismissed the suit as against the railway administration on a finding that the goods were not delivered to the out Agency and applied illustration (b) of Section 238 of the Indian Contract Act, but it decreed Rs. 708.72 P. against defendant No. 3 (the amount the plaintiff had paid). The plaintiff appealed. The lower appellate Court did not make a clear factual finding whether the Bindki Town Out Agency actually received the goods; it inclined to think Bindki Town railway station did not receive the consignment, but treating the railway receipt as a mercantile document, it held illustration (b) of Section 238 had no application and decreed the suit against the railway administration as well, though only for the amount already awarded by the trial Court.

Legal Issues Presented

  1. Whether the plaintiff could maintain an appeal to obtain the primary relief against the railway administration when an alternative relief had already been granted by the trial Court (i.e., whether a plaintiff who claims alternative reliefs and is granted one of them can appeal for the other).
  2. Whether the railway administration was liable for non-delivery of the consignment where it was alleged that the railway receipt was fraudulently obtained by defendant No. 3 without the out Agency having taken possession of the goods (i.e., whether title had passed and whether the railway could be made liable under the facts).
  3. Whether the lower appellate Court was justified in reversing the trial Court's factual finding (that the out Agency had not received the goods and that illustration (b) of Section 238 Indian Contract Act applied) without considering the oral evidence relied on by the trial Court.

Arguments of the Parties

Appellant's (Railway administration) Arguments

  • The railway administration contended that defendant No. 3 had fraudulently obtained the railway receipt from the Bindki Town Out Agency in collusion with the agency staff without actually delivering possession of the alleged goods to the out Agency, and therefore the railway administration was not liable to pay any compensation—the out Agency staff's act being illegal and beyond the scope of duty.
  • Any negligence or misconduct on the part of the railway administration and their staff was denied.
  • The appellant argued that the plaintiff could not maintain an appeal for the main relief (against the appellant) when an alternative relief (Rs. 708.72 P. against defendant No. 3) had already been granted—relying on authorities that where a person claims alternative reliefs and one of them is granted, he cannot then appeal to get the other relief.
  • The appellant further contended that if the goods were lost before the railway receipt was consigned/endorsed to the plaintiff, the plaintiff could not have acquired title and hence the suit for compensation against the railway was not maintainable.

Plaintiff-Respondent's Arguments

  • The plaintiff contended that his main relief was against the railway administration and he was impleading defendant No. 3 only to avoid objections and future trouble, so the grant of an alternative relief against defendant No. 3 did not bar him from appealing for the primary relief against the railway administration.
  • On the title point, the plaintiff argued that it was not specifically pleaded in the railway's written statement that the goods were lost before the endorsement of the railway receipt in favour of the plaintiff; further, even if a suit for compensation under Section 73 of the Indian Railways Act assumes the goods have been lost, it does not follow that title could not have passed to the plaintiff prior to loss.
  • The plaintiff relied on authorities (including Amir Mahton, Bariar Singh, and Adi Pherozshah Gandhi) to counter the contention that an alternative relief prevents an appeal in all circumstances and disputed the appellant's factual assertions about non-delivery to the out Agency.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Reajuddin Patwari v. Syed Abdul Jobbar, AIR 1924 Cal 445 Authority for the proposition that where alternative reliefs are claimed and one is granted, the plaintiff cannot then appeal for the other (i.e., a plaintiff who has been given an alternative relief cannot say he wants the other relief). The appellant relied on this case to support the contention that the plaintiff could not appeal after being granted an alternative relief. The Court analysed the plaint as a whole and distinguished the authority on the facts, holding that here the main relief was against the appellant and remedial appeal was permissible.
Mst. Panchani v. Mst. Rikhia, Dated 14-1-1941 (Second Appeal No. 191 of 1940, Pat) (unreported decision) Applied similarly (in earlier authority) to bar an appeal where an alternative relief had been granted to the plaintiff. The appellant cited this decision; the Court noted it but treated it as distinguishable on facts for the reasons given when assessing whether the plaintiff was "a person aggrieved" and whether the main relief was denied.
Amir Mahton v. Sheo Pujan Missir, AIR 1946 Pat 231 (D.B.) Relied upon for the proposition that the existence of alternative reliefs does not always bar an appeal; fact-specific application where the decree granted neither of the claimed reliefs. The respondent relied on this case. The Court observed that Amir Mahton's case does not establish a general rule that a plaintiff can always appeal when an alternative relief was granted; it is fact-dependent.
Bariar Singh v. Durga Gir, AIR 1952 Pat 476 (S.J.) Held in the particular facts that a plaintiff who was granted an alternative relief (damages) was not stopped from appealing for the principal relief (redemption). The respondent relied on it; the Court noted Bariar Singh but treated the decision as not laying down an absolute rule and emphasised the need to decide the question by reading the plaint as a whole.
Adi Pherozshah Gandhi v. H.M. Seervai, (1970) 2 SCC 484 : AIR 1971 SC 385 Discussion of the meaning of "person aggrieved" (context: appealability under Section 37 of the Advocates Act); used by respondent to address who is a "person aggrieved". The Court observed that the Supreme Court's detailed discussion was learned but not of much assistance to the specific issues in the present case; it did not rely on it as a controlling principle for the facts here.

Court's Reasoning and Analysis

The Court's analysis proceeded in two principal strands corresponding to the two main contentions advanced by the appellant: (1) the effect of the grant of an alternative relief on the plaintiff's right to appeal; and (2) the factual and legal question whether the railway administration was liable because the out Agency had not received the goods and whether the lower appellate Court properly dealt with the evidence.

On the appealability point the Court applied a purposive and contextual reading of the plaint. It held that the question whether a plaintiff who claims alternative reliefs and is granted one of them can appeal for the other must be answered by looking to the averments in the plaint as a whole. If the plaint indicates the plaintiff would be satisfied with either relief, then, having obtained one, he is not a "person aggrieved" and cannot appeal. Conversely, if the plaint as a whole demonstrates that one of the alternative reliefs is the main relief and the other is pleaded only as contingent—i.e., only in case the main relief cannot be granted—then the plaintiff remains aggrieved if the main relief is denied and may appeal.

Applying that rule to the present plaint, the Court concluded that although the plaintiff had stated that a decree might be passed against any defendant held liable, the plaint read as a whole showed that the main relief sought was against the appellant (railway administration). The impleading of defendant No. 3 was, per paragraph 10 of the plaint, done primarily to avoid objections and future trouble. Hence the grant of an alternative monetary relief against defendant No. 3 did not deprive the plaintiff of the right to appeal for the main relief against the railway administration.

On the question of liability and title, the Court examined the factual findings of the trial Court and the approach of the lower appellate Court. The trial Court had found, on oral and documentary evidence, that the railway receipt had been granted by the staff of Bindki Town Out Agency without the out Agency actually obtaining possession of the goods; on that basis the trial Court applied illustration (b) of Section 238 of the Indian Contract Act and dismissed the suit as against the railway administration. The lower appellate Court, however, did not make a clear finding on whether the out Agency received the goods; it appeared to assume from the railway receipt (viewing it as a mercantile document) that the goods must have been delivered to the out Agency before the receipt was granted, and therefore held illustration (b) to be inapplicable.

The appellate Court's reasoning was criticised for failing to consider the oral evidence that supported the trial Court's finding. The present Court emphasised that whether the goods were in fact delivered to the Bindki Town Out Agency was a question of fact; in upsetting the trial Court's finding the lower appellate Court should have considered the whole record, particularly the oral evidence relied upon by the trial Court. The lower appellate Court's reliance on the documentary form of the railway receipt alone, without addressing the oral testimony, rendered its finding vitiated in law.

On the related point of whether title might have passed before the endorsement (and whether the goods were lost prior to the plaintiff obtaining title), the Court noted that the appellant had not specifically pleaded that the goods were lost before the endorsement to the plaintiff; and that even if a suit for compensation under Section 73 of the Indian Railways Act assumes loss, that does not automatically establish that loss occurred before title passed to the plaintiff. Further, if the Bindki Town Out Agency acted as agent of the appellant and had in fact received the goods, different consequences might follow; but such factual determinations required proper adjudication on the evidence.

For these reasons the Court found the lower appellate Court's decision to be legally unsound for having overturned the trial Court's factual finding without proper consideration of the evidence, and remitted the matter for rehearing.

Holding and Implications

Holding: The appeal is allowed. The judgment and decree of the lower appellate Court are set aside and the case is remitted to the lower appellate Court for rehearing of the appeal in accordance with law and in light of the observations in this opinion. The cost of this Court will abide the result after remand. (Concurrence: S.P. Sinha, J. agreed.)

Implications:

  • The immediate consequence is procedural: the matter returns to the lower appellate Court for reconsideration of the appeal with proper attention to the oral and documentary evidence relied upon by the trial Court, particularly on the factual question whether the Bindki Town Out Agency actually received the goods.
  • The Court clarified that whether a plaintiff may appeal after being granted an alternative relief depends on the plaint read as a whole; if the plaint shows the primary relief was denied and an alternative was only pleaded contingently, an appeal for the primary relief is permissible. This conclusion is applied to the facts of this case; the Court did not purport to lay down any absolute or novel rule beyond that fact-specific test.
  • No broader binding precedent was declared beyond the statements of law applied to the facts; the Court remanded for factual reappraisal rather than entering a final substantive finding on liability.

Note: This summary reproduces only the information expressly contained in the provided opinion. No additional facts or inferences not present in the opinion have been introduced.

Show full summary ...

    Union Of India v. Garbhu Sao And Another

    Shambhu Prasad Singh, J.:— This appeal by the Union of India as owner, the Eastern Railway and Northern Railway administrations, defendant first party to the suit, is directed against a money decree for compensation for nondelivery of 11 bags or yellow mustard seeds weighing 925 kilograms (it is so mentioned in the railway receipt, Ext. 1, and wrongly stated as 9.25 kilograms both in the plaint as well as in the judgments of the Courts below) booked from Bindki Town Out Agency to Patna City by defendant No. 3 and consigned to self. The case of the plaintiff-respondent was the defendant No. 3 consigned the said 11 bags of mustard seeds for sale in plaintiffs gaddi and endorsed the railway receipt in favour of the plaintiffs concern. The plaintiff paid Rs. 708.72 paise including miscellaneous expenses to Allahabad Bank, Patna, and got the railway receipt, though the value of the consignment was Rs. 991-64 P. per bijak, the rest being payable after sale of the commodity to defendant No. 3. The said consignment was not delivered to the plaintiff in spite of correspondence and notices under Section 77 of the Indian Railways Act and Section 80 of the CPC. The appellant failed to disclose the whereabouts of the consignment and Eastern Railway administration merely gave a reply that it was not liable. It was further averred in - paragraph 10 of the plaint that to avoid all objections and future trouble the plaintiff as advised was impleading defendant No. 3 also in the suit. The main relief claimed was “that a decree for Rs. 1106-1194 NP. be Sassed in favour of the plaintiff against the defendants or such other defendants who may be held liable”.

    2. Defendant No. 3 did not contest the suit. Only defendant first party, i.e, the appellant contested it. The main defence was that defendant No. 3 fraudulently obtained the railway receipt from Bindki Town Out Agency in collusion with its staff without actually delivering possession of the alleged goods to the out Agency at Bindki town for carriage and, therefore, the railway administration was not liable to pay any compensation; the action of the out Agency staff being illegal and beyond the scope of its duty.

    3. Any negligence or misconduct on the part of the railway administration and their staff was also denied. It was further pleaded that the claim was excess, unjust and untenable.

    4. The trial Court dismissed the suit against defendant first party on a finding that goods were not delivered to the out Agency and that the case was covered by illustration (b) of Section 238 of the Indian Contract Act. It, however, decreed the suit as against defendant No. 3 for Rs. 708.72 P. which the plaintiff had paid to Allahabad Bank. The plaintiff appealed. The lower appellate Court has not recorded any clear finding on the question whether the Bindki Town Out Agency did really receive the goods or not from defendant No. 3. On the basis of Ext. 1 it was inclined to think that Bindki town railway station did not receive the consignment in question from Bindki Town Out Agency, but, as in its opinion, the railway receipt is a mercantile document, it has held that illustrations (b) of Section 238 of the Indian Contract Act has no application and decreed the suit against defendant first party as well, but only for the amount decreed by the trial Court.

    5. Mr. P.K Bose, learned counsel for the appellant, firstly urged that no appeal in respect of Rs. 708.72 P. for a decree against the appellant was maintainable in the Court below at the instance of the plaintiff inasmuch as the plaintiff claimed a decree against all the defendants or any one of them. According to Mr. Bose, the plaintiff could not be said to be aggrieved by the decree of the trial Court in respect of the amount for which the suit had been decreed. He contended that where a person claims alternative reliefs and one of them is granted to him, he cannot appeal for getting the other relief. In support of his contention he relied on the decision of the Calcutta High Court in Reajuddin Patwari v. Syed Abdul Jobbar, AIR 1924 Cal 445 and an unreported decision of a learned Single Judge of this Court D/- 14-1-1941 in Second Appeal No. 191 of 1940 (Pat), Mst. Panchani v. Mst. Rikhia. In the former case, the plaintiff of that suit brought a suit for ejectment of defendants 1 and 2 from certain lands on the allegation that he was entitled to possession of those lands by virtue of his ijara lease obtained from the eight annas proprietor, the defendants being dar ijaradaar, and their lease terminating some time in the year 1910. In the alternative, he also made a prayer for assessment of fair and equitable rent under Section 157 of the Bengal Tenancy Act. The main defence of the defendants was that they were entitled to hold the lands as raiyats. They also pleaded that the plaintiff had no title. The trial Court declared the plaintiffs right to get rent of the lands, but dismissed the suit in respect of the relief for ejectment. Both parties appealed and their appeals were dismissed by the lower appellate Court. The defendants again appealed to the High Court and the plaintiff preferred a cross objection. While dismissing the cross objection it was observed by their Lordships of the Calcutta High Court that the alternative relief having been granted to the plaintiff, he could not be allowed to say that he did not want that relief but other relief. In the case of Mst. Panchani, Agarwala, J. (as he then was) followed the aforesaid decision of the Calcutta High Court. The plaintiff of that suit, a mortgagee in possession, wanted to recover possession of the house from defendants 1 and 2. In the alternative, she also asked for recovery of the mortgage debt from the mortgagor defendant No. 3. The Courts below dismissed the suit as against defendants 1 and 2, but decreed it for the mortgage money as against defendant No. 3. On second appeal, though this Court held that the suit was wrongly dismissed as against defendants 1 and 2, fie appeal could not be allowed as the plaintiff had been granted the alternative relief prayed for by him.

    6. In reply to the aforesaid contention of Mr. Bose, learned counsel for the plaintiff-respondent submitted that prayer for an alternative relief was no bar to the granting of the main relief. He relied on the decisions in Amir Mahton v. Sheo Pujan Missir, AIR 1946 Pat 231 (D.B), Bariar Singh v. Durga Gir, AIR 1952 Pat 476 (S.J) and Adi Pherozshah Gandhi v. H.M Seervai, (1970) 2 SCC 484 : AIR 1971 SC 385. The Supreme Court in the case referred to above has discussed in detail what is the meaning of the expression a “person aggrieved” The discussion was with reference to whether Advocate-General of the State could fall within the expression a ‘person aggrieved’ and prefer an appeal under Section 37 of the Advocates Act, 1961 against the orders of the Committee of the Bar Council of the State holding a particular advocate not guilty of professional or other misconduct. The majority held that Advocate-General was not a person aggrieved. The discussions, if I may say so with respect, are exhaustive and learned, but not of much assistance for deciding the case before us. In Bariar Singhs case, Rai, J. sitting singly, held that in a suit for redemption even if the plaintiff prayed for an alternative relief for damages and was granted one, he was not stopped from filing an appeal for getting a decree for redemption. The learned Judge relied on the Bench decision in Amir Mahton's case. The decision in Amir Mahton's case, however, is not an authority that where alternative reliefs are claimed and one of them is granted, in all cases the plaintiff can appeal. In that case two alternative reliefs were claimed, but the decree did not grant either of the reliefs. It granted some other relief and it was held that the plaintiff could appeal against such a decree. S.K Das, J. (as he then was) referring to the decisions in the cases of Musammat Panchani and Raajuddin Patwari observed that it was doubtful whether a general rule could be laid down that in all cases where an alternative relief had been granted, the plaintiff had no right of appeal for getting a decree for other relief which he had claimed in the plaint. He distinguished the aforesaid decisions on facts. Manohar Lal, J. agreeing with Das, J. observed that on the facts found it was not necessary to consider the correctness of the view expressed in some cases that the plaintiff could not in appeal be granted the second alternative relief claimed by him. With due respect to the learned Judge, who decided Bariar Singh's case, I think he failed to appreciate correctly the decision in Amir Mahton's case.

    7. In my opinion, the question whether a plaintiff who claims alternative relief and is granted one of them can appeal for getting the other relief is to be decided on the averments in the plaint of the case concerned. If the plaint read as a whole discloses that the plaintiff will be satisfied with either of the reliefs claimed by him, he cannot be allowed to appeal, if one of the reliefs is granted. One who gets what he wants cannot be said to be a “person aggrieved”. On the other hand, if the plaint read as a whole gives an impression that of the alternative reliefs claimed one is the main relief and the other one is claimed only if it is found that the main relief cannot possibly be granted and the main relief is refused, it is open to the plaintiff to appeal and urge that on the facts and in law he is entitled to the main relief and should have been granted that. In such circumstances claiming alternative reliefs is no bar to appeal by the plaintiff. Though in his plaint the plaintiff of the case before us while claiming relief stated that a decree for the amount claimed might be passed against the defendants or any of the defendants held liable, reading the plaint as a whole, I find that his main relief was against the appellant. He claimed a relief against defendant No. 3 only in case it was not found possible to grant the relief prayed for against the appellant. Though it was not stated in so many words that only in case it was not found possible to grant a decree against the appellant, a decree may be passed against defendant No. 3, but that was the intention of the plaintiff. It is apparent from paragraph 10 of the plaint that defendant No. 3 was being impleaded only to avoid all objection and future trouble. Thus, on the facts of the case I find no substance in the first contention of Mr. Bose.

    8. Mr. Bose secondly contended that as the goods were lost before the railway receipt was consigned to the plaintiff, he could get no title in them and the suit by him for compensation was not maintainable. Learned counsel for the respondent, in reply to this argument, submitted that it was not specifically pleaded in the written statement that the goods were lost before the endorsement of the railway receipt in favour of the plaintiff. Had this been pleaded, the plaintiff would have shown that the goods were not in fact lost on that date. True it is, as contended by learned counsel for the appellant, that a suit for compensation for non-delivery under Section 73 of the Indian Railways Act is maintainable only on the assumption that the goods have been lost. But from that it cannot be inferred that the goods were lost before title in them could have passed to the plaintiff. Mr. Bose in this connection pointed out that the Court of appeal below has observed that Bindki Town railway station did not receive the consignment in question from Bindki Town Out Agency. The observation is not unequivocal, rather, it merely assumes something in favour of the appellant. Further, Bindki Town Out Agency is supposed to receive the goods as an agent of the appellant in case it did receive the goods, then in order to deprive the plaintiff of his right to sue it was necessary for the appellant to prove that the goods were lost before title in them could pass to the plaintiff. Mere non-reaching of the goods from Bindki Town Out Agency to Bindki Town railway station is not sufficient. The goods might have been kept at Bindki Town Out Agency till after the endorsement of the railway receipt in favour of the plaintiff. The trial Court on a consideration of the oral and documentary evidence held that railway receipt was granted by the staff of Bindki Town Out Agency without actually getting possession over the goods in question. If that be so, then it was right in holding that illustration (b) of Section 238 of the Indian Contract Act was applicable to the facts of the case. The lower appellate Court has not considered the oral evidence on the record. It has assumed merely on the basis of the railway receipt, which is a mercantile document, according to it, that goods must have been delivered possession of to the Railway Out Agency before it was granted. Whether the goods were in fact delivered or not to Bindki Town Out Agency is a question of fact and in recording a finding on that question, rather in upsetting the finding, on that question, of the trial Court, the Court of appeal below ought to have considered the entire evidence on the record specially that relied on by the trial Court in support of its finding. The lower appellate Court having not done so, its finding is vitiated in law and cannot be maintained.

    9. In the result, the appeal is allowed, the judgment and decree of the Court of appeal below are set aside and the case is sent back for rehearing of the appeal before it in accordance with law and in the light of observations made in the proceeding paragraphs. The cost of this Court will abide the result after remand of the appeal before the lower appellate Court.

    S.P Sinha, J.:— I agree.

    10. Appeal allowed.

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    Union Of India v. Garbhu Sao And Another
    (Feb 1, 1972)