JUDGMENT

H. R. KHANNA, J. :—This appeal by special leave by the State of Kerala is against the Full Bench decision of the Kerala High Court affirming on appeal the judgment and decree of the trial Court whereby the suit for recovery of Rupees 28,208.70 filed by the appellant against the General Manager, Southern Railway respondent was dismissed.

2. The appellant booked 2,000 tons of rice in 21, 310 bags from Bareilli railway station for being transported to Trivandrum central railway station as per 10 railway. receipts during the period from June 25 to July 5, 1950. According to the case of the appellant, the rice delivered at Trivandrum central railway station was short by 79,378 lbs. It was also averred that the rice in 327 bags was found to be damaged. The appellants accordingly claimed Rupees 28,208.70 as damages from the respondent.

3. The respondent resisted the claim of the appellant, inter alia, on the ground that the suit was not maintainable as the Union of India had not been impleaded as a defendant to the suit and that a suit by a State against the Union of India could be instituted only in the SC of India under Article 131 of the Constitution. It is not necessary to set out the other pleas of the respondent. As many as nine issues were framed by the trial Court. Two of the issues, namely, issues Nos. 1 and 3, were treated as preliminary issues and arguments were heard on those issues. Issues Nos. 1 and 3 read as under :

"1. Is the suit maintainable? Can a decree be passed against the defendant as now impleaded?

3. Will the suit lie in this Court ? Is the suit barred by the provisions of the Constitution of India?"

On issue No. 3 it was held by the trial Court that since the Union of India had not been made a party to the suit, clause (a) of Article 131 of the Constitution had no application. The suit was accordingly held to be not liable to be dismissed on that ground. On issue No. 1 the trial Court held that the Union of India was a necessary party to the suit and as the Union of India had not been impleaded as a party, the suit was incompetent. As a result of its findings on issue No. 1 the trial Court dismissed the suit. The decision of the trial Court on issue No. 1 was affirmed in appeal by the High Court. An application was also filed at the hearing of the appeal before the High Court for impleading the Union of India as a party to the suit. The High Court rejected that application on the ground that no useful purpose would be served by allowing that application. It was observed that if the application was allowed and the Union of India was made a party, the suit would have to be dismissed as under Article 131 (a) of the Constitution a suit by one State against the Union of India could only lie in the SC. In the result, the High Court dismissed the appeal filed by the appellant.

4. In appeal before us Mr. Gupte on behalf of the appellant has invited our attention to the definition of "railway administration" in Section 3 (6) of the Indian Railways Act, 1890 (Act 9 of 1890) (hereinafter referred to as the Act) which reads as under :

"railway administration or administration in the case of railway administered by the Government means the Manager of the railway and includes the Government and, in the case of a railway administered by a railway company, means the railway company;"

He has further referred to Sections 72, 74, 76 and 80 of the Act. According to Section 72, the responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to other provisions of the Act, be that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872. S. 74 absolves the railway administration of any responsibility for the loss, destruction or deterioration of any luggage belonging to or in charge of a passenger unless a railway servant has booked and given a receipt therefor. Section 76 deals with burden of