R.F. Lodge, J.

1. The facts giving rise to this rule may be stated brieflyas follows: The Opposite Party No. 1 Gopal Chandra Tapadar had consigned on28-7-1942, 440 bags of cement under cover of Risk Note z from Japla a stationon the E.I. Ry., for delivery to the plaintiff at Gaibandha a station on the B.& A. Railway. The consignment was despatched from Japla in an E.I. Ry.Wagon to Bhagalpur and made over at that station to the O. & T. Railwaythen known as B. & N. W. Ry. It was despatched from Bhagalpur on 12-8-1942and reached Mahadevpurghat on the O. & T Ry. on or about 16-8-1942. On29-3-1943, the plaintiff was informed by the O. &. T Ry. Administrationthat the goods had been lost at Mahadevpurghat owing to disturbances of August1942. Thereafter the plaintiff instituted a suit in the Calcutta Small CauseCourt making the East Indian Railway Administration defendant 1, O. & T.Railway defendant 2, B. & A. Ry. defendant 3 and claimed compensation forthe nondelivery of the goods. After many adjournments the case was taken up on6-8-1946, and witnesses were examined. Thereafter there were many adjournmentsand on 19-3-1947 an application for adjournment by defendant 2 was rejected,arguments were heard and the suit was dismissed as against defendant 1 withoutcosts and decreed on contest as against defendant 2. Defendant 2 applied underSection 38. Presidency Small Cause Courts Act, that the matter be referred tothe Full Bench for argument on the question whether the Calcutta Small CauseCourt had jurisdiction as against defendant 2. The application was heard on10-6-1947, and dismissed but no reasons were given for the dismissal.

2. This rule has been obtained by defendant 2 and it iscontended that the cause of action so far as defendant 2 is concerned did notarise within the jurisdiction of the Presidency Small Cause Court, thatdefendant 2 had no office within the jurisdiction of that Court. It was truethat as against the E.I. Ry. and B. & A. Ry. the Court had jurisdictioninasmuch as the head) offices of these two Railways were situated within thejurisdiction of the Calcutta Small Cause-Court.

3. The only point now is whether the Calcutta Small CauseCourt had jurisdiction to decree a suit against a defendant when the cause ofaction arose against that defendant outsider the jurisdiction of that Court andthat defendant resided or had its head office outside the jurisdiction of thatCourt. It seems to me that the case in B. and N. W. Rly. Co. Ltd., v. SadaramBhairodan 9 : A.I.R. 1922 Cal. 500 [LQ/CalHC/1922/83] is conclusive on thesubject and that the Presidency Small Cause Court had no jurisdiction asagainst the O. & T. Railway, defendant 2. If a reference is made to Section18, Small Cause Courts Act, it will appear that there is nothing in thissection to justify the inference that the Court had jurisdiction as againstdefendant 2. There is nothing whatever to show on the record that defendant 2acquiesced in the institution of the suit against him in the Calcutta SmallCause Court. In this view it must be held that the decree as against defendant2 was without jurisdiction and the same must be set aside.

4. The rule is accordingly made absolute. The decree againstdefendant 2 is set aside on the ground that the Court had no jurisdiction andthe plaint is directed to be returned to the plaintiff for re-filing it in the properCourt, if so advised. I make no order as to costs in this rule.

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Dominion of India vs.Gopal Chandra Tapadar and Ors.(24.02.1948 - CALHC)