Authored By : Arthur Trevor Harries, P.B. Chakravartti

Arthur Trevor Harries, C.J.

1. This is a petition for revision of an order of a FullBench of the Court of Small Causes Calcutta, dismissing an application made toit by the Governor General of India in Council.

2. To appreciate the points in issue in this revision itwill be necessary shortly to set out the facts of the case. The proceedingsarise out of a suit for compensation brought against the Governor-General inCouncil as representing the Bengal Nagpur Railway and the East Indian Railway.It appears that a quantity of black pepper was consigned for carriage to theplaintiffs. The consignment was loaded at a town called Alleppy on the SouthIndian Railway and delivery was to take place at Gaya on the East IndianRailway. The goods had to travel over three railways, the South Indian Railway,the Bengal Nagpur Railway and the East Indian Railway. When the goods weredelivered at Gaya it was found that there was a shortage of 9 maunds and a suitwas brought against the Governor General in Council representing the EastIndian Railway and the Bengal Nagpur Railway for compensation amounting to Rs.495. This suit was filed in the Presidency Small Cause Court, Calcutta and washeard by one of the learned Judges of that Court. On behalf of the presentpetitioner it was urged that the Court had no jurisdiction to entertain thesuit. The suit seems to have been regarded as one against two defendants,namely, the East Indian Railway and the Bengal Nagpur Railway. The noticesunder S. 77, Railways Act and S. 80, Civil P.C., had duly been served and theplaintiffs argued that the Small Cause Court had jurisdiction by reason of thefact that the headquarters of the East Indian Railway were within the locallimits of the Courts jurisdiction and that as leave had been obtained theBengal Nagpur Railway could also be properly regarded as defendants. Thecontention on behalf of the Governor-General was that neither of these railwayscarried on business within the local limits of the Court and no part of thecause of action arose within those limits. That being so it was stated that theCourt had no jurisdiction. It was further contended that the results showedthat the Court could not have jurisdiction by reason of S. 18(c) , PresidencySmall Cause Courts Act. The relevant portion of S. 18, Presidency Small CauseCourts Act is in these terms:

Subject to the exceptions in S. 19, the Small Cause Courtshall have jurisdiction to try all suits of a civil nature-

when the amount of value of the subject-matter does notexceed two thousand rupees; and-

(a) the cause of action has arisen, either wholly or inpart, within the local limits of the jurisdiction of the Small Clause Court,and the leave of the Court has, for reasons to be recorded by it in writing,been given before the institution of the suit: or.....

(c) any of the defendants at the time of the institution ofthe suit, actually and voluntarily resides, or carries on business orpersonally works for gain, within such local limits, and either the leave ofthe Court has been given before the institution of the suit, or the defendantswho do not reside, or carry on business, or personally work for gain, asaforesaid, acquiesce in such institution......

According to the argument addressed to the Court on behalfof the Governor-General, neither of these railways carried on business withinthe local limits of the Court and therefore S. 18(c) could have no application;neither could S. 18(a) , because according to the case for the Governor-Generalno part of the cause of action arose within the jurisdiction.

3. The learned Small Cause Court Judge held that he hadjurisdiction to hear the case and it appears to have been conceded eventuallythat the loss was caused on the Bengal Nagpur Railway. Eventually the suit wasdecreed against the Governor-General in Council as representing the BengalNagpur Railway for Rs. 360 with costs.

4. An application was then made to a Full Bench of the SmallCause Court and the point as to jurisdiction was again argued. The Full Benchwas of opinion that the Court had jurisdiction to entertain the suit by reasonof the provisions of S. 18(c), Presidency Small Cause Courts Act. The Courtheld that the East Indian Railway carried on its business at its headquarterssituate within the local limits of the jurisdiction of the Small Cause Court, andas leave of the Court had been obtained the suit could be maintained not onlyagainst the East Indian Railway, but against the co-defendant, the BengalNagpur Railway also. The result, therefore, was that the application to theFull Bench failed and was dismissed.

5. On behalf of the Governor-General in Council it has beenurged before us that the decision of the Full Bench is clearly erroneous. It iscontended that the Governor-General in Council, and at the present time theDominion of India, owns both the East Indian Railway and the Bengal NagpurRailway. It was urged that the business of both the Railways was at that timecarried on by the Governor-General in Council and is now carried on by theDominion of India and it cannot be said that either the Governor-General inCouncil carries on his business in Calcutta or does the Dominion of India do soto-day. It was urged that if the suit be regarded, as it must be regarded, as asuit against the Governor-General in Council and now the Dominion of India, thenclearly the Small Cause Court had no jurisdiction, as neither theGovernor-General in India nor the Dominion of India resides nor carries onbusiness within the local limits, and no part of the cause of action arose inCalcutta. The cause of action, it was urged, arose entirely on the property ofthe Bengal Nagpur Railway.

6. It appears to me that if this suit is to be regarded as asuit against one defendant, namely, the Governor-General in Council, and nowthe Dominion of India as owner of both these railways, then the Small CauseCourt clearly had Jurisdiction by reason of S. 18(a), Presidency Small CauseCourts Act.

7. It is true that the goods were lost on the property ofthe Bengal Nagpur Railway which would be outside the jurisdiction. But it isclear that part of the cause of action against the Governor-General or theDominion of India is the service of notice under S. 77, Railways Act and S. 80,Civil P.C. These notices, in so far as they concern the East Indian Railway, atleast were served in Calcutta within the local limits of the jurisdiction. Ifthe suit is to be regarded as against one defendant then only one set ofnotices were required and those notices were served on the Governor General ata place within the local limits of the jurisdiction of the Court and thereforepart of the cause of action against the Governor-General in Council or theDominion of India arose within the local limits of the jurisdiction of theSmall Cause Court. Further, leave of the Court was obtained and that being so,the case falls precisely within the terms of S. 18(a) , Presidency Small CauseCourts Act. It is to be observed that learned Advocate for the petitionerconcedes that the proper way of viewing this suit is as a suit against theGovernor-General in Council and not as a suit against the Governor-General inCouncil representing two railways. The Governor-General in Council, and now theDominion 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. Itdoes not own the East Indian Railway in one capacity and the Bengal NagpurRailway in another capacity. It owns both, and therefore it may well be thatupon the true view of the facts in this case, this was a suit against onedefendant and one defendant only, namely, the Governor-General in Council, andnow the Dominion of India. As I have said, regarded in that way this caseclearly falls within S. 18(a) , Presidency Small Cause Courts Act, and theCourt had jurisdiction.

8. If the suit is regarded, as it was regarded, as a suitagainst two entities, namely, the East Indian Railway and the Bengal NagpurRailway, it appears to me clear that the Court had jurisdiction under S. 18(c). If these railways are two distinct entities then each railway must carry onits business at some particular place. A company carries on business at itsregistered office, and it would appear to me that a railway treated as aseparate entity would carry on its business at its head office. Admittedly thehead office of the East Indian Railway is within the local limits of thejurisdiction of the Small Cause Court, though the headquarters of the BengalNagpur Railway, being at Kidderpore, is outside such limits. It must beremembered that leave of the Court was obtained for bringing this suit, andthat being so the case falls precisely within the terms of S. 18(c) . What thatprovision requires is that any one of the defendants at the time of theinstitution of the suit actually and voluntarily resided or carried on businesswithin the local limits of the jurisdiction of the Court and either that leaveof the Court had been given for the institution of the suit, which had beendone in this case, or that the defendant who did not reside or carry onbusiness within the limits acquiesced in the institution of the suit.

9. Clearly, the Bengal Nagpur Railway did not acquiesce inthe institution of the suit, but the case falls within the provision becausethe East Indian Railway carried on its business within the limits of thejurisdiction and leave of the Court had been given. That being so, the Courthad jurisdiction.

10. It was urged, however, that eventually it was held thatthe Bengal Nagpur Railway was solely responsible and the suit as against theEast Indian Railway was dismissed. If the suit could be regarded as a suitagainst two entities that would be so. But if it is to be regarded, as I thinkit might well be regarded, as a suit against one entity, there was no dismissalof the suit in part at all. However, the argument was that as the suit wasdismissed against the East Indian Railway, which was the defendant that carriedon business within the local limits of the Court, then the Court could have nojurisdiction to make any decree against the other railway, namely, the BengalNagpur Railway which carried on its business outside the limits of thejurisdiction of the Court.

11. The question of jurisdiction must be decided upon theallegations in the pleadings and it must be decided, before the case begins,whether or not there is jurisdiction. If on the face of the pleadings the Courthas jurisdiction, it matters not that later the suit as against the person whocarried on business or resided within the jurisdiction is dismissed. If thesuit is to be regarded as a suit against the two defendants, the Court clearlyhad jurisdiction upon the allegations alleged in the pleadings.

12. A single Judge decision of this Court, namely Dominionof India v. Gopal Chandra Tapadar, Civil Revn. No. 1832 of 1947, decided on24th February 1948 : (: AIR 1948 Cal. 268 [LQ/CalHC/1948/27] ), has been cited tous. In that case a number of bags of cement were consigned from a station onthe East Indian Railway for delivery to the plaintiff at a station on theBengal Assam Railway. The goods had to be carried not only on the East IndianRailway, but also on the Oudh & Tirhut Railway, then known as the Bengaland North Western Railway, before they reached the Bengal Assam Railway. Itseems that when these goods reached Mahadepur Ghat on the Oudh and TirhutRailway, they were lost and a suit was brought in the Small Cause Court,Calcutta, against the East Indian Railway administration, the Oudh and TirhutRailway and the Bengal Assam Railway.

13. A point was taken as to whether the Small Cause Courthad jurisdiction, to decree the suit against the Oudh and Tirhut Railway. Itseems to have been conceded by learned advocate on behalf of the railways thatthe Court had jurisdiction with regard to the East Indian Railway and theBengal Assam Railway as both those railways, it was said, carried on theirbusiness within the jurisdiction of the Small Cause Court. On the other hand,it was clear that the headquarters of the Oudh and Tirhut Railway were notwithin the local limits of the jurisdiction. Lodge J. who decided the case heldthat the Small Cause Court had no jurisdiction to make a decree against theOudh and Tirhut Railway, because the case did not fall within the provisions ofS. 18, Presidency Small Cause Courts Act. The learned Judge appears to havethought that the appropriate paragraph of that section was para. (c), but inhis view that paragraph did not give the Court jurisdiction because it wasclear that the Oudh and Tirhut Railway had not acquiesced in the institution ofthe suit, Clearly, they had not acquiesced because they had taken the point ofjurisdiction. There is nothing in the judgment of Lodge J. to suggest thatleave of the Court had been obtained to bring the suit, and that being so, itmight be said that S. 18(c) did not apply.

14. This case before Lodge J. of course proceeds on theassumption that these three railways which are now owned by the Dominion ofIndia were three separate entities. But it may be said that they are now merelythree pieces of property owned by one owner, the Dominion of India. TheDominion in that case might have been sued and if the requisite notices wereserved at the head offices of either the East India Railway or the Bengal AssamRailway, it might be said that the case fell within S. 18(a) and no question ofjurisdiction would have arisen.

15. For the reasons which I have given I am satisfied thatthe decision of the Full Bench of the Presidency Small Cause Court was right,though I uphold the decision for somewhat different reasons from those statedin the judgment of the Full Bench.

16. The Rule must therefore be discharged with costs, thehearing fee being assessed at three gold mohurs.

P.B. Chakravartti, J.

17. I agree.

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Dominion of India vs. Jagadish Prosad Pannalal, a Firm andOrs. (09.09.1948 - CALHC)