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Dominion Of India v. Hazari
Summary of the Opinion (Full Bench)
Factual and Procedural Background
These matters arise from two analogous suits against the Railway Administration of the Government of India. The same plaintiff sued for compensation for the non-delivery of portions of two consignments (thalis and lotas) booked from Bankura Station on the B.N. Railway to Nirmali on the O.T. Railway. The plaintiff took open delivery in each case and shortages were discovered, apparently due to pilferage in transit.
At first instance the learned Munsif found for the plaintiff generally but dismissed the suits because the plaintiff had failed to serve the notice required by section 77 of the Railways Act. On appeal the learned Subordinate Judge reversed that part of the decision: he held that because the suits were framed for failure to deliver (non-delivery) rather than for loss, the notice under section 77 was not necessary, and he therefore entered decrees for the plaintiff.
The matters were referred to this Full Bench for consideration of (1) whether the word “loss” in section 77 of the Railways Act means only actual loss of the goods or includes loss to the plaintiff owing to failure to deliver, and (2) whether this Court can interfere in revision under section 115 of the Code of Civil Procedure where the subordinate court may have erred in law but did not commit a jurisdictional error.
Legal Issues Presented
- Whether the word “loss” in section 77 of the Railways Act means only an actual loss of the goods or whether it also includes loss to the plaintiff occasioned by failure of the Railway Company to deliver (i.e., whether non-delivery falls within “loss”).
- Whether the High Court, exercising revisional jurisdiction under section 115 of the Code of Civil Procedure, may interfere with a subordinate court's decision that involves a misconstruction or error of law that does not involve want of jurisdiction or a material irregularity (i.e., the limits of section 115).
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Puran Das v. East Indian Railway Company (Full Bench) | Where the plaint admits that the goods have been lost owing to negligence, the onus does not remain on the defendant to call evidence on that admitted point; the matter should be treated as one of loss and the question whether nondelivery is included in “loss” does not arise. | The Full Bench relied on this case to conclude that the present plaints (which plead actual loss) present cases of loss, so that the originally referred question about the meaning of “loss” in section 77 did not arise here. |
| Jairam Ram Rekh Das (Jairam Ramrekh Das v. G.I.P. Railway) | Established practice (in the Patna High Court) that in suits based upon non-delivery of goods a notice under section 77 is not required. | The Court noted this decision as having held the field for about twenty years and as forming the settled practice in the Patna High Court; one judge emphasised that this settled practice should not be disturbed. |
| Bengal Nagpur Railway Co. Ltd. v. Hamirmull Changanmull | Advanced the contrary view to Jairam Ramrekh Das regarding the meaning of “loss” (i.e., a stricter interpretation). | One judge (Mahabir Prasad, J.) stated that this decision was wrongly decided and must be deemed overruled by the Full Bench in Puran Das. |
| Amir Hassan Khan's case (Privy Council) | Principle that where a court has jurisdiction to decide a dispute, the High Court’s revisional jurisdiction under section 115 is not intended to remedy mere errors of fact or law where no question of jurisdiction is involved. | Relied upon to support the proposition that section 115 cannot be used to correct non-jurisdictional errors of law or fact committed by a subordinate court. |
| Bala/Balakrishna Udayar (Privy Council authority) | Similar principle limiting revisional interference under section 115 to matters involving jurisdiction, illegality or material irregularity rather than mere wrong conclusions of fact or law. | Referenced (by name) to show established Privy Council authority restricting the scope of section 115; used in the analysis that High Court cannot interfere where only an error of law is involved. |
| Venkatagiri Ayyangar (Privy Council) | Reviewed conflicting decisions and emphasised that section 115 empowers the High Court to satisfy itself on three matters: (a) that the subordinate court's order is within its jurisdiction, (b) that the case is one in which the court ought to exercise jurisdiction, and (c) that in exercising jurisdiction the court has not acted illegally or with material irregularity. | Relied on to summarise the limits of revisional power: if the High Court is satisfied on those three matters, it has no power to interfere merely because it differs from the subordinate court on facts or law. |
| Kumar Ram Kiner Sinha (Division Bench of this Court) | Held that a decree passed without noticing the absence of a required succession certificate (section 214, Succession Act) could not be treated as a decree without jurisdiction; the section is more imperative than section 77 of the Railways Act. | Used to illustrate the distinction between mandatory statutory bars to jurisdiction (where a court lacks power to adjudicate) and statutory provisions (like section 77) that disentitle a party to relief but do not oust the court's jurisdiction to try the suit. |
| Jaisram's case (referred to as a decision of this Court) | Held a settled view (in this Court) for about twenty years that not giving notice under section 77 in cases of non-delivery became settled practice. | Referred to as binding local practice that should not be disturbed in the Patna High Court; the Full Bench noted this fact in considering the significance of section 77 in non-delivery cases. |
| The Madras and Southern Mahratta Railway Co. Ltd. (decision of Madras High Court) | Represents a contrary view adopted by judges of the Madras High Court on the necessity of notice under section 77 in some contexts. | Mentioned as an example of an authoritative but contrary approach elsewhere; one judge observed that the contrary view could not be wholly discarded but that local settled practice in Patna remained. |
Court's Reasoning and Analysis
The Full Bench's analysis proceeds in two principal strands: (A) the factual-pleading question as to whether the suits were truly actions for “non-delivery” or for “loss,” and (B) the legal question whether the High Court may intervene in revisional jurisdiction under section 115 when the subordinate court commits a non-jurisdictional error of law.
(A) Whether these suits were cases of loss or non-delivery
- On close examination of the plaints, paragraph 5 explicitly pleaded that the goods had been lost due to the negligence of the Railway Administration. Because the plaint itself admitted loss, the narrower question originally referred — whether the word “loss” in section 77 includes nondelivery — did not actually arise in these particular matters.
- The Bench relied upon the principle stated in the Full Bench decision in Puran Das v. East Indian Railway Company: where the plaint admits loss through negligence, the issue must be treated as one of loss and the burden to prove loss need not be shifted to the defendant; thus the present suits are to be regarded as suits for loss.
- Because the suits are properly viewed as suits for loss, notice under section 77 of the Railways Act was necessary. The Subordinate Judge's conclusion that notice was unnecessary (on the basis that the suits were for non-delivery) was therefore incorrect; accordingly, the Subordinate Judge ought not to have reversed the Munsif's dismissal on the ground of absence of notice.
(B) Whether the High Court can interfere under section 115
- The Bench carefully distinguished between errors that affect jurisdiction and errors of law or fact that do not. Section 77, by its terms, does not state that no suit may be entertained in the absence of notice; rather it provides that relief cannot be granted (i.e., disentitles the plaintiff to the decree). Thus, non-compliance with section 77 does not strip the subordinate court of jurisdiction to try the suit; at most it results in the plaintiff being disentitled to relief.
- On this basis, the Full Bench applied established Privy Council authority (Amir Hassan Khan, Bala/Balakrishna Udayar and the more recent Venkatagiri Ayyangar) to hold that section 115 of the Code of Civil Procedure does not permit the High Court to correct mere errors of law or fact by a subordinate court where no question of jurisdiction, illegality, or material procedural irregularity is involved.
- The Bench illustrated the distinction by reference to Kumar Ram Kiner Sinha: even where a subordinate court fails to notice the absence of a required document (a succession certificate under section 214 of the Succession Act), that error did not render the decree a decree without jurisdiction. Section 77 was held to be less imperative in its wording than the statutory provision considered in that case.
- Accordingly, although the Subordinate Judge erred in law by decreeing the plaintiff in spite of the absence of the notice required by section 77, this legal error did not amount to want of jurisdiction, illegality or material irregularity within the meaning of section 115 that would justify High Court interference in revision.
Several members of the Bench additionally emphasised local practice: the Patna High Court had for many years followed the practice (stemming from Jaisram/Jairam decisions) that in suits expressly based on non-delivery a notice under section 77 was not required; however, they acknowledged that when on the pleadings the case is one of admitted loss, the lack of notice is fatal to the claim.
Holding and Implications
Core Ruling: Applications dismissed.
Consequences and immediate effects:
- The Full Bench held that, on the pleadings in these particular cases, the plaintiff had pleaded actual loss in transit; therefore notice under section 77 of the Railways Act was necessary and the Subordinate Judge should not have granted decrees in the absence of that notice. On that substantive point, the Subordinate Judge was wrong.
- Despite that error of law, the High Court dismissed the revisional applications because the error did not involve want of jurisdiction, illegality or material procedural irregularity within the meaning of section 115 of the Code of Civil Procedure; section 115 does not empower the High Court to correct mere wrong conclusions of law or fact where no jurisdictional question is involved.
- The Court ordered that the applications be dismissed and, in the circumstances, made no order as to costs.
Broader implications on legal principles and precedent:
- The Bench reiterated the settled limits of revisional jurisdiction under section 115 as articulated by the Privy Council: the High Court may interfere only where the subordinate court's order is without jurisdiction, where the case is one in which the subordinate court ought not to have exercised jurisdiction, or where the exercise of jurisdiction involved illegality or material irregularity. Mere errors of law or fact, however serious, are not a basis for revisional interference where jurisdiction is otherwise present.
- With respect to the meaning of “loss” in section 77 and Risk Note B, the Bench treated the earlier Full Bench authority (Puran Das) and the local practice (Jairam/Jaisram decisions) as decisive for these matters: in the present cases those authorities rendered the specific question whether “loss” includes non-delivery unnecessary because the plaints pleaded actual loss. One judge expressly stated that the Bengal Nagpur Railway Co. Ltd. v. Hamirmull Changanmull decision was wrongly decided and had been overruled by Puran Das.
- No novel general precedent was laid down by this Full Bench beyond the application of existing Privy Council authority and the reaffirmation of local, long-standing practice in the Patna High Court; the immediate legal effect is to dismiss these revisional applications while noting the correctness of the Munsif's dismissal in light of the pleaded loss.
Final operative result: Applications dismissed. No order as to costs.
Meredith, J.:— These two applications under section 115 of the Civil Procedure Code arise out of two analogous suits against the Railway Administration of the Government of India. The suits were by the same plaintiff for recovery of compensation for non-delivery of portion of two consignments of thalis and lotas booked from Bankura Station on the B.N Railway to Nirmali on the O.T Railway. The plaintiff took open delivery in each case, and in each case shortage of the thalis and lotas was found, evidently due to pilferage en route. The learned Munsif found in favour of the plaintiff except with regard to notice under section 77 of the Indian Railways Act, and considering the failure to serve this notice fatal to the suits, he dismissed them. In appeal the learned Subordinate Judge held that because the suits were based on failure to deliver, and not on loss, no notice under section 77 was necessary. He, therefore, gave the plaintiff a decree in both cases.
I was responsible for these applications being referred to a Full Bench for Consideration of the question whether the word “loss” in section 77 meant only actual loss of the goods or would include loss to the plaintiff owing to failure to deliver. At the hearing it has become apparent that this question does not actually arise, and the reference was unnecessary. When the applications originally came before me, my attention was not drawn to the plaints, but it now appears that there is a clear statement in paragraph 5 of the plaints that the goods in respect of which the claim was made had been lost through the negligence of the Railway Administration. As was pointed out by a Full Bench of this Court in Puran Das v. East Indian Railway Company*, where the plaintiff's allegation in the plaint is that the goods have been lost owing to negligence on the part of the servants of the defendant Company, it being so admitted in the plaint that there was a loss of the goods, the onus no longer lies upon the defendent to call evidence upon the point which was admitted in the pleadings, and, therefore, the case must be treated on the pleadings as one of loss. For this reason in that case also it was held that the question referred to the Full Bench, whether nondelivery is included in the word “loss” within the meaning of the Risk Note Form B, did not arise.
The present cases are, therefore, clearly cases of loss even though the plaintiff may have framed the suits as for non-delivery. In any view, therefore, notice under section 77 was necessary, and the learned Subordinate Judge was wrong. He ought to have maintained the dismissal of the suits by the learned Munsif.
The question also arises, however, whether this Court has power to interfere in revision under section 115. In my opinion no question of want of jurisdiction or irregularity in the exercise of jurisdiction at all arises. The error of the Court below was not on a point touching jurisdiction. Section 77 does not provide that no suit shall be entertainable in the absence of notice. It provides only that it cannot be decreed. The Court has always got the jurisdiction to entertain the suit, and has then to decide upon the necessity of notice. With regard to the necessity of notice, it has jurisdiction to decide rightly or wrongly. Had the matter been one under section 25 of the Small Cause Courts Act, the position would have been different; but under section 115 this Court, in my opinion, cannot interfere.
I would, therefore, dismiss these applications, but, in the circumstances, would make no order for costs.
Manohar Lall, J.:— I agree.
The first question does not really arise for decision because the plaintiff himself clearly stated in paragraph 5 of the plaint that the goods have been lost in transit. In these circumstances, the plaintiff's suit should have been dismissed as he did not give the notice required by section 77 of the Railways Act. But I desire to emphasise that so far as the Patna High Court is concerned, it is now our settled practice which has prevailed for more than twenty years that in the cases where the plaintiff's suit is based upon non-delivery of the goods, he is not required to give a notice under section 77 See the observations in Jairam Ram Rekh Das. The plaintiff, however, takes a risk in not giving the notice even in cases of non-delivery, because if it is established during the course of the trial that the case is not a case of non-delivery but of loss, then the suit will fail on that ground alone. I also desire to state that having examined a large number of cases cited before us on behalf of the petitioner, it is not possible to discard altogether the contrary view which appeals for instance, to the learned Judges of the Madras High Court in The Madras and Southern Mahratta Railway Co. Ltd., but so far as this High Court is concerned, as I have stated above, the settled practice should not be allowed to be disturbed.
With regard to the second question, I fail to see, how the misconstruction of the provisions of a statute not involving the jurisdiction of the Court can be held to result in the judgment of the court below becoming a judgment without jurisdiction within the meaning of section 115 of the Code of Civil Procedure. Their Lordships of the Privy Council have emphasised in a number of cases that if a court has jurisdiction to decide a dispute between the parties, it has also jurisdiction to decide it rightly or wrongly both in fact and in law, and that section 115 of the Code of Civil Procedure is not directed to remedy wrong conclusions of fact or law where no Question of jurisdiction, is involved [see Bala Krishna Udayar].
The matter has been again reviewed by their Lordships of the Judicial Committee in a case decided this year and reported as Venkatagiri Ayyangar. In this case their Lordships in reviewing the apparently conflicting decisions in the Indian High Courts have emphasised that the view of the Privy Council in Amir Hassan Khan's case, and Balakrishna Udayar's case should be strictly followed, namely, that section 115 of the Code of Civil Procedure “empowers the High Court to satisfy itself upon three matters (a) That the order of the subordinate Court is within its jurisdiction, (b) That the case is one in which the Court ought to exercise jurisdiction and (c) That in exercising jurisdiction the Court has not acted illegally, that is in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court upon questions of fact or law”.
In the case of Kumar Ram Kiner Sinha Division Bench of this Court held that the decree passed on a handnote cannot be held to be a decree without jurisdiction because the court failed to notice that the plaintiff had not produced a succession certificate as required by section 214 Succession Act of 1925. That section so far as it is relevant provides that no court shall pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person except on the production, by the person so claiming, of a probate or letters of administration or a succession certificate granted under Part X and having the debt specified therein. In my opinion this is a correct decision. It will be noticed that the words of this section are more imperative than the words of section 77 of the Railways Act.
Again, it is only necessary to draw attention to the provisions of section 11 of the Civil Procedure Code which provides inter alia that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, etc. Numerous cases will be found in the books to show that a wrong decision of a court as to the effect of section 11 in a particular proceeding does not affect the jurisdiction of the court when he decides the suit because the plea under section 11 is a plea in bar and when raised, it is to be decided by the court which may decide it rightly or wrongly. I consider the effect of section 77 of the Railways Act is similar, viz., that it is a plea in bar which has to be raised before the court having jurisdiction to decide the dispute between the parties; the court has full jurisdiction to accept or reject this plea in the case before it, and merely because the court decides the matter rightly or wrongly either in fact or in law or in both, this does not affect the jurisdiction of the court in deciding the suit one way or the other. For these reasons, I agree that the second point should be answered as proposed by my learned brother.
I would also dismiss these applications but in the circumstances make no order for costs.
Mahabir Prasad, J.:— I agree.
The first question referred to this Bench whether the word “loss” in section 77 of the Railways Act meant actual loss of the goods or loss to the plaintiff occasioned by the failure of the Railway Company to deliver does not arise as the case made out by the plaintiff in the plaint clearly was that of goods having been actually lost in the transit.
I desire, however, to state that on consideration of the terms of section 77 and the context in which the word “loss” occurs therein, I am in agreement with, the opinion expressed in the case of Jairam Ramrekh Das v. G.I.P Railway, and I have no hesitation in holding that the case of Bengal Nagpur Railway Company Limited v. Hamirmull Changanmull holding the contrary view was wrongly decided and must be deemed to have been overruled by the decision of the Full Bench in the case of Puran Das v. E.I Railway Co.. The word “loss” in section 77 and Risk Note B has been used in the same context and in the same sense, and there seems no reason why it should have a different meaning in section 77 than what it has been held to have in Risk Note B. The decision of this Court in Jaisram's case should not be disturbed also for the reason that it has held the field for the last twenty years, and in consequence of this decision, not to give notice under section 77 in cases of “non-delivery” has become the settled practice.
Having regard, however, to what was pleaded in the plaint in the present case, the suit of the plaintiff was clearly bad for want of notice under section 77 and ought not to have been decreed by the Court of appeal below.
The question then arises: whether this Court in its revisional jurisdiction under section 115 of the Code of Civil Procedure is entitled to reverse the decision of the Court of appeal below and give relief to the defendant Company? This is the second question referred to this Bench to which the answer, I agree, is surely in the negative. For the principle on which this Court should act when invited to interfere with the decision of subordinate Courts in its revisional jurisdiction, the line of authority is that beginning from Amir Hassan Khan's case right down to the case of Venkaiagiri Ayyangar decided this year by the Privy Council. The principle is that if the Court has jurisdiction to decide a case, it has jurisdiction to decide it rightly or wrongly both in fact and in law. The learned Subordinate Judge in the present case in passing the decree in question in the absence of a notice under section 77 can at best be said to have committed an error of law. Section 77 by its terms does not impose a bar against a Court entertaining a suit in the absence of a notice contemplated by it, it merely disentitles the plaintiff to the relief which he claims. The suit having been entertained by the Court with jurisdiction, it was certainly for the Court to decide whether, in the circumstances of the case, in the absence of a notice under section 77, a decree in favour of the plaintiff should have been passed. The Court has undoubtedly erred in law in deciding the question, in favour of the plaintiff, but has not erred in exercise of its jurisdiction or has omitted to exercise the jurisdiction vested in it by law. It cannot be said even to have acted illegally or with material irregularity in exercise of its jurisdiction in that it has not committed any error of procedure in the trial of the suit materially affecting its ultimate decision.
I would, therefore, dismiss the applications but without making any order for costs.
K.D
Applications dismissed.
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