1. This is a Rule obtained by the Dominion of India, now Union of India against a judgment of the F. B. of the Presidency Small Causes Ct. Calcutta, by which the pltfs. suit for recovery of the price of 440 bags of cement was decreed against the second deft. The facts giving rise to this Rule are as follows :



2. The pltf. was the consignee of 440 bags of cement despatched from Japla on the East Indian Railway System for carriage to Gaibandha on the Bengal and Assam Railway system. This consignment never reached its destination and accordingly the pltf. instituted the suit against the Governor-General of India in Council as representing (1) The East Indian Railway, (2) The Oudh and Trihut Railway, and (3) the Bengal and Assam Railway. Of these three railways the East Indian Railway and the Bengal and Assam Railway have their offices in Calcutta. The pltf. instituted the suit in the Presidency Small Cause Court, Calcutta, on the allegation that the cause of action arose in Calcutta as the East Indian Railway and the Bengal and Assam Railway have both their business and office at Calcutta and as notices under S. 77, Railways Act had been served on the East Indian Railway and the Bengal and Assam Railway at Calcutta within the jurisdiction of the Presidency Small Cause Ct.



3. The suit was contested by the deft. inter alia on the ground that the Presidency Small Cause Ct. had no jurisdiction because the deft. cannot be said to reside in or carry on business or personally work for gain within the local limits of the jurisdiction of the Presidency Small Cause Ct., and secondly that no part of the cause of action arose within the local limits of that jurisdiction. The Presidency Small Cause Ct. Judge who tried the suit dismissed it against the East Indian Railway and the Bengal and Assam Railway but decreed it for a sum of Rs. 750 against the Oudh and Trihut Railway without assigning any reasons. An appeal to the F. B, under S. 38, Presidency Small Cause Courts Act, was also dismissed without assigning any reasons. Against the decision of the F. B. the Dominion of India obtained the present Rule.



4. Mr. Bose appearing in support of the Rule has argued in the first place that the present case was not triable by the Presidency Small Cause Ct. because all the three Railways which have been impleaded as defts. in the suit were owned by the Central Govt. and were represented by the Governor-General in Council who could not be said to voluntarily reside or carry on business or personally work for gain in carrying on the administration of the Railways. In support of this contention reliance is placed upon the decision reported in the case of Rodricks v. Secy. of State, 40 Cal. 308 [LQ/CalHC/1912/546] : (21 i. C. 1), where Sir Lawrence Jenkins made the following observation:

"The Ct. has no jurisdiction to entertain a suit brought against the Secretary of State where the cause of action has arisen wholly outside the ordinary original jurisdiction of that Ct. on the sole ground that the Secretary of State dwelt or carried on business or personally worked for gain within the local limits of that Ct."

and in this decision Sir Lawrence Jenkins followed an earlier decision of this Court reported in Doya Narain v. Secy. of State, 14 Cal. 25

6. These two decisions of this Ct. were followed by the Madras H. C. in the case of Govindarajulu Naidu v. Secy. of State, 50 Mad. 449 [LQ/MadHC/1926/449] : (a. i. R

. (14) 1927 Mad. 689) [LQ/MadHC/1926/449] , where it was pointed out that the word "resides" must be taken to refer to natural persons and not to legal entities; and further, the word "business" is a Commercial business and not a business of the State or Govt. and as such the Secretary of State could not be said to carry on business in running the administration of the Railways. The decision in Rodricks v. Secy. of State, 40 Cal. 308 [LQ/CalHC/1912/546] : (21 i. C. 1) was also followed by another Division Bench of this Ct. in Dominion of India v. R. C. K. C. Nath and Co., Civ. Revn. Case No. 802 of 1949 : (A. I. R. (37) 1950 Cal. 207) [LQ/CalHC/1949/338] , decided by the C. J. and Banerjee J. on 5-12-1949. In view of these authorities, it is impossible for us to hold that the present case can come under cl. (c) of S. 18, Presidency Small Cause Courts Act, which requires that at the time of the institution of the suit any of the defts. should actually and voluntarily reside or carry on business or personally work for gain within such Local limits and either the leave of the Ct. has been given before the institution of the suit or the defts. who do not reside or carry on business or personally work for gain acquiesce in such institution. It may be mentioned here that in the present case the pltf. obtained the leave of the Ct. under S. 18, Presidency Small Cause Courts Act. There is one decision by Lort-Williams J. in the case of Golab Rai v. Secy. of State, i. L. R. (1941) 2 Cal. 160, where his Lordship took the view that carriage by railway is a business within the meaning of Cl. 12, Letters Patent, and is carried on by the Govt. of India. In view of the three Division Bench judgments to which we have already referred it is impossible for us to follow the decision of Lort-Williams J. in this case. We accordingly hold that the first point raised by the petnr. must succeed and it should be held that the Presidency Small Cause Ct. Judge had no jurisdiction to entertain the suit under cl. (c) of S. 18, Presidency Small Cause Courts Act.



5. The second point raised by Mr. Bose is that no part of the cause of action arose within the local limits of the Presidency Small Cause Ct. and therefore cl. (a) of that section also did not apply. Clause (a) of S. 18 confers jurisdiction on the Presidency Small Cause Ct. when the cause of action has arisen either wholly or in part within the local limits of the Small Cause Ct. and leave of the Ct. has been given before the institution of the suit. We have already said that the pltf. in the present case obtained leave of the Ct. under S. 1

8. The question, therefore, that requires consideration is as to whether in the circumstances of this case it can be said that the cause of action has arisen either wholly or in part within the local limits of the jurisdiction of the Small Cause Ct. In para. 7 of the plaint the pltf. alleges that the cause of action arose in Calcutta as notices under S. 77, Railways Act, had been served on the East Indian Railway and the Bengal and Assam Railway at Calcutta, within the jurisdiction of the Small Cause Ct. The controversy had centered round the meaning of the expression "cause of action". Various authorities were placed before us for the purpose of showing the different meaning attributed to the expression "cause of action". It is to be noticed that with regard to the jurisdiction of a Ct. the expression "cause of action" has been used in S. 20, Civil P. C., S. 18, Presidency Small Cause Courts Act as also Cl. 12, Letters Patent of the Calcutta H. C. In the case of Engineering Supplies Ltd. v. Dhandhania and Co., 58 Cal. 539 [LQ/CalHC/1930/175] : (A. i. R

. (18) 1931 Cal. 659) [LQ/CalHC/1930/175] , Rankin C. J. had to consider the meaning of the expression "cause of action" as used in cl. 12, Letters Patent, and at p. 544 of the report his Lordship made the following observation:

"The only definition that will work, if it has to be applied to cases of all kinds, is the entire set of facts that gives rise to an enforceable claim or, in the words of Fry L. J., everything which if not proved gives the deft. an immediate right to judgment, "every fact which is material to be proved to entitle the pltf. to succeed, every fact which the deft. could have a right to traverse."



6. Mr. Bose has referred to the decision of the Judicial Committee in the case of Mohammad Kalil Khan v. Mahbub Ali, 75 i. A. 121 : (A. i. R. (36) 1949 P. C 78). From pp. 139 to 143 their Lordships considered the different meanings attributed to this expression by different Judges. Their Lordships also quote the definition given by Lord Esher M. R., in Read v. Brown, 1889-22 Q. B. d. 128 : (58 l. J. Q. B. 120), which runs as follows :

"Every fact which it would be necessary for the pltf. to prove, if traversed, in order to support his right to the judgment of the Ct."

These definitions of the expression "cause of action" are certainly wide enough to include the service of notice under S. 77, Indian Railways Act, because service of the notice is one of the facts which it was necessary for the pltf. to prove in order to support his right to the judgment of the Ct. The view indicated above is supported by the decision of a Division Bench of this Ct. in the case of Dominion of India v. Jagadisli Prosad Pannalal, A. I. R. (36) 1949 Cal. 622 [LQ/CalHC/1948/101] : (84 C. l. J. 175).



7. Even if it is held that service of notice under S. 77, is part of the cause of action it is to be noticed that the Oudh and Trihut Railway against which the suit has been decreed, has no office in Calcutta and therefore notice upon this Railway was not served in Calcutta within the jurisdiction of the Presidency Small Cause Ct.In the case of Dominion of India v. Jagdish Prosad Pannalal, A. I. R. (36) 1949 Cal. 622 [LQ/CalHC/1948/101] : (84 C. L. J. 175), it was pointed out that the Governor General and the Dominion of India and now the Union of India is the sole deft. in the case as owning three different railways and a notice under S. 77 upon the Governor General in Council as representing the East Indian Railway should be held to be a good notice upon the Governor General as representing the Oudh and Trihut Railway. At p. 624 of that report their Lordships made the following observations :

"The Governor General in Council, and now the Dominion of India, does own these two railways, But as owner of the railways, the Governor General in Council or the Dominion of India is the same entity. It does not own the East Indian Railway in one capacity and the Bengal Nagpur Railway in another capacity. It owns both and therefore it may well be that upon the true view of the facts in this case, this was a suit against one deft. only namely, the Governor General in Council and now the Dominion of India." In this view of the matter the case before us comes under cl. (a) of S. 18, Presidency Small Cause Courts Act. We, therefore, hold that the Small Cause Ct. in the present case has jurisdiction to try the suit under S. 18 (a), Presidency Small Cause Courts Act.



8. In the result the Rule is discharged with costs, hearing fee two gold mohurs.