Citation Codes

Equivalent Citations

citation codes

Case Number

D.B Civil Regular First Appeal No. 76 of 1952

Attorney(S)

Amritraj, for Appellant;
M.L Joshi, for Respondent

Judges

Kailash Wanchoo

Acts

Art. 36 of the Limitation Act

See more information ...

Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This is an appeal by Thakur Madho Singh against the judgment and decree of the Civil Judge, Balotra. The appellant originally instituted a suit in 1945 claiming Rs. 9,000 as damages for the loss of five mares alleged to have been run over by a railway train on the night between 27 and 28 July 1943; four mares died and a fifth was injured.

The suit was initially filed against Mr. Rawlins (described as Manager, Jodhpur Railway). Mr. Rawlins appeared on 27 October and filed a written statement objecting that he was not the owner of the Jodhpur Railway and could not be sued as representing the Railway. The plaint was amended on 8 November 1945 to remove Mr. Rawlins and continue the suit against the General Manager, Jodhpur Railway. A later amendment on 15 July 1946 struck off the General Manager and substituted the Marwar Durbar; subsequently the Marwar Durbar was replaced by the Union of India. The defendants pled (1) that the suit was barred by limitation and (2) that either no accident occurred or there was no negligence by the Railway to justify damages.

Legal Issues Presented

Whether the suit was barred by limitation under Article 36 of the Limitation Act (two years from the date of the malfeasance, misfeasance or nonfeasance) where the plaint was originally filed against an individual (Mr. Rawlins) and later amended to bring in the Railway or State after the period of limitation.
Whether the accident (the alleged running over of the mares) occurred and, if so, whether the Railway was liable in damages for negligence on the part of its servant (the driver).

Arguments of the Parties

Appellant's Arguments

The plaint as originally filed shows an intention from the outset to sue the owner of the Railway; the naming of Mr. Rawlins was a mere misdescription.
Because the original filing on 2 July 1945 was within the two-year limitation period, the subsequent amendments substituting the proper defendant (General Manager, Jodhpur Railway / Marwar Durbar) should relate back to that date and therefore not be barred by limitation.
Reliance was placed on a number of railway-related precedents (cases where suits filed against agents or managers were treated as misdescriptions and taken to be suits against the Railway Company itself).

Defendant's / Respondent's Arguments

The suit as originally brought was against the wrong person (Mr. Rawlins) and therefore the subsequent substitutions after the expiration of the limitation period did not enure to the plaintiff's advantage; bringing the Railway or State on record after limitation was, in substance, commencing the suit against those parties for the first time.
Substantively, the defence also asserted that (a) no such accident had occurred and (b) even if an accident occurred, there was no negligence by the Railway or its servant that would make the Railway liable for damages.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Saraspur Manufacturing Company v. B.B. & C.I. Railway Company	Holds that where a suit is really against a Railway Company but is filed against its agent/manager, the naming of the agent may be treated as a misdescription (i.e., suit should be regarded as against the Railway).	The court distinguished this line of authority: those cases involved suits that were in substance against the Railway (filed against agent as misdescription), whereas in the present case the suit was brought in the proper name of Mr. Rawlins and thus not simply a misdescription.
Gopiram Behariram v. Agents, East India Ry. and O. & R. Ry.	Same principle as above regarding misdescription where agent/manager is named but the real defendant is the Railway Company.	Distinguished for the same reason: the facts differed because the earlier decisions did not involve a suit actually brought in the proper name of an individual servant.
Kanailal Kripashankar Dikshit v. The Governor General in Council	Authority cited in support of the proposition that naming an agent may amount to a misdescription where the real defendant is the Railway/State.	Distinguished on factual grounds; the court held it did not apply where a suit was genuinely against a servant in his personal name.
Jodhpur Railway v. Gulam Rasul	Recognised a local practice (in the former State of Marwar) of filing suits against the Manager of the Jodhpur Railway in such cases.	Cited by the appellant; the court acknowledged the practice but concluded the present plaint language sued Mr. Rawlins personally and therefore did not fall within the same category as those practice-based suits.
(Case) Sinehai Ram Bihari Lall v. East Indian Railway Co.	Example of authorities that took an opposite view on whether a suit against a manager/agent could be treated as a misdescription.	The court noted such authorities but treated them as indicating that in some cases misdescription could be found; nonetheless, the court concluded the present facts did not satisfy that test.
Agent, Bengal Nagpur Ry. v. Behari Lal Dutt	Authority relating to whether suits against agents/managers can be regarded as suits against the Railway.	Considered among authorities showing differing approaches; the court treated these as not persuasive for the facts before it.
East Indian Railway Co. v. Ram Dakhan Ram	Another decision on the proper treatment of suits filed against agents/managers.	Noted; the court observed that although some cases support treating such pleadings as misdescriptions, factual differences prevented their application here.
Ram Dass Sein v. Mr. Cecil Siephenson	Held that suits brought in the proper name of certain servants of the Railway were not suits against the Railway.	Relied upon by the court as analogous authority supporting the proposition that a suit genuinely pleaded against an individual servant remains so and does not automatically bind the Railway.
Nubeen Chunder Paul v. Cecil Stepson, Agent of the East India Railway Company	Another authority holding that a suit properly brought against a servant was not a suit against the Railway.	Applied analogously; the court treated these older authorities as supporting its conclusion that the present suit was against Mr. Rawlins personally.
B. N. Ry. Co. Ltd. v. Tara Prosad Maity	Holds that on the open line (away from level crossings) a driver is not obliged always to be on the lookout for trespassers; omission to notice or to blow a whistle, without more, does not necessarily constitute negligence; Railway Companies are not bound to fence the line.	The court applied these principles to conclude that the Railway was not shown to be negligent where animals trespassed on an open line at night and there was no evidence the driver saw them and deliberately ran them over.
Ismail Haji Nana Mafat v. B. B. & C. I. Ry.	Holds that a Railway Company is not liable to trespassers for mere errors of judgment (such as failure to blow a whistle) unless the servant acted in wilful disregard of the trespasser's safety.	The court relied on this to emphasise that liability requires more than mere error of judgment; there was no evidence of wilful disregard here.
Lal Ramkumar Singh v. Governor General in Council (through Agent B. N. Railway, Kidderpur, Calcutta)	Explains that the occupier's duty towards a trespasser is limited: the duty is not to willfully act in reckless disregard of ordinary humanity; a trespasser (and trespassing animals) generally bears the risk of trespassing.	The court invoked this principle to reinforce that the Railway's duty toward trespassing animals is limited and that the plaintiff had not established the higher threshold of wilful or reckless conduct by the driver.

Court's Reasoning and Analysis

The court addressed the matters in two principal stages: limitation and substantive liability for negligence.

1. Limitation — application of Article 36: The court applied Article 36 of the Limitation Act, which prescribes a two-year limitation from the date when the malfeasance, misfeasance or nonfeasance takes place. The accident occurred on or about 28 July 1943, so a suit should have been brought within two years of that date. The plaint was filed on 2 July 1945 and, on that date, was within the two-year period.

However, the defendants contended that the suit filed on 2 July 1945 was against the wrong person (Mr. Rawlins) and that subsequent amendments to substitute the General Manager, Jodhpur Railway, and later the Marwar Durbar, occurred after the limitation period had expired. The court examined whether the original naming of Mr. Rawlins was a mere misdescription (so that substitution would relate back) or whether the suit had been genuinely brought against Mr. Rawlins personally.

The court considered authorities on both sides. It recognized cases where suits filed against agents/managers were treated as misdescriptions and thereby regarded as suits against the Railway Company. But the court distinguished those authorities by focusing on the factual pleadings: in the present plaint the language and pleading clearly sued Mr. Rawlins in his own name, holding him personally responsible as Manager. The court treated older authorities (Ram Dass Sein; Nubeen Chunder Paul) that held suits properly brought in the name of servants were not suits against the Railway as more analogous to the present case.

On this basis the court concluded that the subsequent substitutions brought the Railway / Marwar Durbar on record for the first time, and because those substitutions occurred after the limitation period expired, the suit against those substituted defendants was barred by limitation. The court therefore upheld the lower court's view on limitation.

2. Substantive liability — occurrence of accident and negligence: The court then considered whether the accident had occurred and whether the Railway (through its driver) was negligent. The court accepted the plaintiff's evidence that the accident did take place, rejecting the defence's contention that no accident occurred; it noted that the driver's failure to report could be explicable by fear of departmental punishment and did not itself prove non-occurrence.

Turning to negligence, the court analyzed the context: the accident occurred on an open line at night where there was no speed restriction and no rule requiring a constant lookout. The mares had been grazing some distance (text states "grazing in the for which is about 2 miles from the railway line") and then trespassed on the railway line past midnight. There was no evidence that the driver saw the animals with sufficient time to take evasive action or deliberately ran them over. The mere multiplicity of animals injured in one collision did not of itself establish negligence.

The court then applied the principles from prior authorities (B.N. Ry. Co. Ltd. v. Tara Prosad Maity; Ismail Haji Nana Mafat; Lal Ramkumar Singh) which collectively establish that on open lines drivers are not required to keep a constant lookout for trespassers, railway companies are not strictly bound to fence lines, omission to notice or failure to sound a whistle without more does not automatically constitute negligence, and that liability to trespassers generally requires wilful or reckless disregard rather than mere error of judgment.

Applying these principles to the evidence, the court found that the plaintiff had not proved such negligence by the driver as would render the Railway liable. Consequently, the court disagreed with the lower court's finding of negligence and the consequent award of damages.

Holding and Implications

Holding: The appeal is dismissed with costs.

Implications:

The court affirmed the lower court's view on the limitation point: because the plaint was properly regarded as a suit against Mr. Rawlins in his personal capacity, subsequent substitutions bringing the Railway or Marwar Durbar on record after the expiration of the limitation period could not relate back and were therefore barred.
On the merits, the court held that although the accident did occur, the plaintiff failed to establish the requisite negligence by the Railway's servant to make the Railway liable. The court applied established principles limiting the duty owed to trespassers and requiring proof of wilful or reckless conduct (or equivalent) for liability to arise.
No broader or novel legal principle was announced; the decision applies the cited authorities to the facts and results directly in dismissal of the appeal and denial of damages claimed. The opinion does not purport to set new precedent beyond its application of existing principles to the facts of this case.

End of summary — all information above is taken directly from the provided opinion.

Show full summary ...

Th. Madhosingh v. Union Of India

Wanchoo, C.J:— This is an appeal by Thakur Madho Singh against the judgment and decree of the Civil Judge Balotra and has arisen in the following circumstances.

2. The appellant brought a suit against Mr. Rawlins, General Manager, Jodhpur Railway, Jodhpur, in 1945. His case was that five of his mares had been run over by a railway train on the night between the 27th and 28th of July, 1943. Four of them died, while the fifth was rendered more or less unless Consequently Rs. 9,000/- were claimed as damages for the loss.

3. The suit was originally filed against Mr. Rawlins. He appeared on the 27th of October, and filed a written statement in which he took the objection that the suit as filed against him was not proper, as he was not the owner of the Jodhpur Railway, and that he could not be sued as representing the Jodhpur Railway Administration. Thereupon the plaintiff got the plaint amended, and the name of Mr. Rawlins was removed on the 8th of November, 1945, and the suit continued against the General Manager, Jodhpur Railway. There was another amendment later on, and the name of the General Manager, Jodhpur Railway, was also struck off and Marwar Durbar was substituted for it on the 15th of July, 1946. Later, the Marwar Durbar has been replaced by the Union of Indian.

4. The main defence of the defendant was two-fold, (1) that the suit was barred by time, and (2) that there was no such accident and in any case there was no negligence on the part of the Railway, which would entitle the plaintiff to a decree for damages.

5. We shall first deal with the question of limitation. Art. 36 of the Limitation Act is the article which applies to this case, and the limitation is two years from the date when the malfeasance, misfeasance or nonfeasance takes place. Thus the suit should have been brought within two years of the 28th of July 1943. It was actually filed on the 2nd of July, 1945, and was within time on that date. But the contention of the defendants is that it was filed against a wrong person, namely Mr. Rawlins, and the substitution of either the General Manager, Jodhpur Railway, or the Marwar Durbar took place after the period of limitation was over. Such a substitution would not enure to the advantage of the plaintiff, in as much as the suit was originally filed against a wrong person. Learned counsel for the appellant, however, urges that the plaint shows that from the very beginning the intention was to sue the owner of the Railway, and that the description of the defendant given in the original plaint was merely a misdescription, and therefore the later amendment, by which the right person was brought on the record, must be deemed to relate back to the 2nd of July, 1945. In this connection, reliance has been placed on a number or railway cases on behalf of the appellant. These cases are —Saraspur Manufacturing Company v. B.B & C.I Railway Company(1), Gopiram Behariram v. Agents, East India, Ry. and O.& R. Ry. (2), Kanailal Kripashankar Dikshit v. The Governor General in Council(3).

6. These are all cases, however, where the suit was originally field against the agent of the Railway Company, and it was held that the name was a mis-description, and the suit was really against the Railway Company itself. There was no suit in the proper name of any particular person in these cases.

7. Reliance has also been placed on Jodhpur Railway v. Gulam Rasul(4). In that case, it was held that it was the practice in the former State of Marwar to file the suit against the Manager of the Jodhpur Railway in such cases.

8. There are some cases which have taken the opposite, view even where the suit was brought in the name of the Agent or Manager of the Railway Company as for example Sinehai Ram Bihari Lall…Plaintiff v. E.I Ry. Co.…Defendant Opposite Party.(5), Agent, Bengal Nagpur Ry. v. Behari Lal Dutt (6) and East Indian Railway Co. v. Ram Dakhan Ram (7). We are of the view that if the suit is filed against the manager or agent of the railway, and if it appears that the intention was to sue the railway and to get a relief against the railway, it may be possible in an appropriate case to hold that the name of the defendant originally put own was merely a misdescription.

9. But the present case is of a different nature altogether. Here that the suit was not against the Manager of the Jodhpur Railway. The suit was against Mr. Rawlins who was described as the Manager, Jodhpar Railway, in paragraph 3 of the plaint, it was said that the suit was being brought against the defendant (i.e Mr. Rawlins) as he was the manager of the railway by the train of which the accident had been caused, and the plaintiff was entitled to recover the amount of damages from him Learned counsel urged that these words mean that the suit was against the Railway. We are not prepared to accept this interpretation. The words clearly mean what they say, namely that Mr. Rawlins had been sued as the plaintiff held him responsible for the damage as the Manager of the Railway. Therefore, the principle of the cases relied upon by learned counsel for the appellant does not apply to the facts in this case. The facts here are more in accord with two older cases to which we may refer-namely (1) Ram Dass Sein v. Mr. Cecil Siephenson(8), (2) Nubeen Chunder Paul v. Cecil Stepson, Agent of the East India Railway Company(9). In those cases, the suit had been brought in the proper name of Page: 386certain servants of the Railway, and it was held that it was not brought against the Railway

10. We are, therefore, of opinion that the suit in the present case must also be held to have been brought against Mr. Rawlins, and not against Jodhpur Railway, and as such the substitution of Mr. Rawlins by the Manager, Jodhpur Railway, or by the Marwar Durbar amounted to bringing these persons, for the first time, on the record. As this was done long after the period of limitation was over, it must be held that the suit either against the Manager, Jodhpur Railway, or against the Marwar Durbar was barred. We are, therefore, of opinion that the view of the court below on the question of limitation is correct.

11. The next question is whether the accident took place at ell, and also whether there was such negligence as would make the Railway liable, so far as the actual accident is concerned, we are; satisfied from the plaintiff's evidence that the accident did take place. The defendant's case was that no such accident had taken place; but we are not impressed by the fact that no report of the accident was made by the driver. He might not have made a report for fear that he might be held departmentally liable to punishment. The question, however still remains whether the Railway would be liable in the circumstances on the ground of negligence. The accident took place on the open line where there is no restriction of speed and no rule requiring a constant look-out by the driver. The mares, according to P.W 1, were grazing in the for which is about 2 miles from the railway line. For some reason or other they came and trespassed on the railway line. The time was past mid-night. There is nothing to show that the driver had noticed the mares on the railway line, and had time to stop and still did not do so. The mere fact that five mares were injured in one accident would not necessarily establish the negligence of the driver. If the mares were all together, it is quite possible for all five of them to be injured in one accident.

12. We may in this connection refer to a number of cases which lay down responsibility of the Railway Company for accidents of this kind.

13. In B.N Ry. Co. Ltd.…Defendant v. Tara Prosad Maity…Plaintiff Opposite Party.(10), it was pointed out that there was no principle or authority which demanded that a driver running an engine on the open line at places where there were no level-crossings or which were not known to be ordinarily used for purposes of crossing the rails was bound to be on the look out to see if any trespassers were on the lines. A Railway Company allowing persons to cross the line otherwise than by a level crossing was not in duty bound to use care to protect such persons. Omission to notice and the failure to blow a whistle in consequence of which any loss was sustained did not amount to negligence. It was also pointed out that the Railway Companies in India were not bound to fence the line, and that if an animal strayed on the Railway line and was killed in consequence, and there was nothing to show that the accident was caused by negligence on the part of the driver, the Company would not be liable,

14. In Ismail Haji Nana Mafat… v. B.B & C.I Ry.… (11), it was held that a Railway Company was not liable for damages to a trespasser for a mere error of judgment (such as failure to blow whistle) even amounting to negligence on the part of its servant which caused damage to the trespasser. The company would be liable only if the servant acted in wilful disregard of the safety of the trespasser.

15. In Lal Ramkumar Singh v. Governor General in Council, through the Agent B.N Railway, Kidderpur, Calcutta(12), it has been held that the duty of an occupier towards the trespasser is different from that towards a licensee or an invitee. So far as the trespasser is concerned, the duty is not to do a wilful act in reckless disregard of ordinary humanity. The general rule is that a man trespasses at his own risk. The position is the same with regard to trespassing animals.

16. On the principles laid down in these cases with which we respectfully agree it is quite clear that the plaintiff has failed to prove such negligence on the part of the driver as would make the Railway liable. There is nothing to show that the driver necessarily noticed the animals trespassing on the line, and that after noticing them he deliberately ran them over. We cannot agree with the view taken by the lower court that there was negligence by the driver, and so the Railway was bound to pay damages.

17. There is no force in this appeal, and it is hereby dismissed with costs.

Th. Madhosingh v. Union Of India

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Defendant's / Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Th. Madhosingh v. Union Of India

Comments