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HIGH COURT OF CALCUTTA
Bose
ACHUT ANANT PAI - Appellant
Versus
GOVERNOR GENERAL-IN-COUNCIL - Respondent
Extraordinary Suit 14 Of 1945
Decided On : AUGUST 25, 1954
JURISDICTION - WAIVER - SUBMISSION - RAILWAY - SUIT FOR COMPENSATION - NON-DELIVERY OF GOODS - JURISDICTION OF COURT - WAIVER OF OBJECTION - SUBMISSION TO JURISDICTION - CONDUCT OF DEFENDANT - ESTOPPEL - RES JUDICATA - TRANSFER OF SUIT - CLAUSE 13, LETTERS PATENT - SCOPE - ADJUDICATION - GOVERNMENT SUIT AGAINST - PLACE OF SUING.
Fact of the Case:
Suit for compensation for non-delivery of two consignments of Indian cotton twist yarn entrusted to the railway for carriage from Wadi Bunder and Ahmedabad to Raigarh. The suit was originally filed in the Court of the 4th Subordinate Judge, Alipore District, 24-Parganas, as Money Suit No. 9 of 1945 on 12th April, 1945. The suit has been transferred to the Calcutta High Court by an order made under Clause 13 of the Letters Patent on 23rd of July, 1945.
Finding of the Court:
The defendant, by its conduct, has waived its objection to jurisdiction and submitted to the jurisdiction of the Alipore Court and of the Calcutta High Court, and it is estopped from raising the question of jurisdiction or objecting to the place of suing now.
Issues: Whether the defendant has waived its objection to jurisdiction and submitted to the jurisdiction of the Alipore Court and of the Calcutta High Court?
Ratio Decidendi: 1. The defendant has not raised the objection to jurisdiction at the proper stage contemplated by Section 21 of the Code of Civil Procedure (CPC). 2. The defendant's conduct amounts to waiver of objection to jurisdiction and submission to the jurisdiction of the Alipore Court and of the Calcutta High Court. 3. The defendant is estopped from raising the question of jurisdiction or objecting to the place of suing now. 4. An order of transfer under Clause 13 of the Letters Patent does not involve any adjudication and is not a 'judgment' under Clause 15 of the Letters Patent and is not appealable. 5. A Government is sought to be sued in any court, it has to be sued in the Court within whose jurisdiction either the whole or part of the cause of action has arisen.
Final Decision: The preliminary issue is decided in favor of the plaintiff. The defendant is estopped from raising the question of jurisdiction or objecting to the place of suing now. Each party will bear and pay his or its own costs of the hearing of this preliminary Issue.
( 1 ) THIS is a suit for recovery of Rs. 55,398/7/- for compensation for non-delivery of two consignments of Indian cotton twist yarn entrusted to the railway for carriage from Wadi Bunder and Ahmedabad, being stations on the G. I. P. Railway and B. B. C. I. Railway, to Raigarh, a station on the Bengal Nagpur Railway.
( 2 ) THIS suit was originally filed in the Court of the 4th Subordinate Judge, Alipore District, 24-Parganas, as Money Suit No. . 9 of 1945 on 12th April, 1945.
( 3 ) THE suit has been transferred to this Court by an order made under Clause 13 of the Letters Patent on 23rd of July, 1945.
( 4 ) THE matter has now been set down before me for trial of a preliminary issue as to whether this Court has jurisdiction to entertain and try the suit. It is agreed by the parties that I shall try this issue" first.
( 5 ) THE case of the plaintiff as laid in the plaint is that the plaintiff carries on business in manufacturing and dyeing yarn at 24, Tantipara, Lane, Salkea, in the district of Howrah under the name and style of Calcutta Fast Colour Dye Works and his place of business and factory is at Raigarh in the district of Bilaspur. The Bengal Nagpur Railway Administration is a State Railway and the Railway Administration has its head office and principal place of business at Bengal Nagpur Railway House, Garden Reach, Kidderpore, within the jurisdiction of the Alipore Court. On or about 27th of March, 1944, five bales of yarn were booked from Ahmedabad on the B. B. C. I. Railwayfor carriage to Raigarh station on the Bengal Nagpur Railway and they were deliverable at Raigarh station. On 3-4-1944 another consignment of 64 bales of yarn was booked from Wadi Bunder, Bombay, for carriage to and delivery at Raigarh station. It is alleged that on 13-4-1944, the goods covered by the said consignments were destroyed by fire caused by the misconduct on the part of the Bengal Nagpur Railway Administration and or its servants. The particulars of such misconduct are set out in paragraph 5 of the plaint. It is further alleged that by reason of the destruction of the said goods, the plaintiff has suffered loss and damage which he assesses at Rs. 55,398/7/ -. It appears that on or about August 10, 1944, the plaintiff caused a notice in writing to be served on the Agent of the Bengal Nagpur Railway Administration claiming the said sum as compensation. On January 3, 1944, the plaintiff caused a notice under Section 80 of the Code to be served on the Secretary to the Central Government in charge of Railway, Communications and Transport. In paragraph 11 of the plaint it is stated:"that the cause of action arose on, the 13th day of April 1944 at Raigarh in the Central Provinces and at the head office and principal place of business of the Railway concern which is situate at 12, Garden Reach Road, Kidderpore, within the jurisdiction of this Court, and so the suit is filed in this Court. "
( 6 ) THE principal contention of Mr. A. C. Mitra, the learned counsel for the plaintiff, is that the defendant having waived its objection to jurisdiction, or in other words, having acquiesced in and submitted to the jurisdiction of the Court is precluded from contending that the Court has no jurisdiction to entertain to try this suit. This point as to waiver or submission to jurisdiction is taken in the Additional Written Statement filed by the plaintiff in reply to the Amended Written Statement filed by the defendant.
( 7 ) THE facts on which Mr. Mitra places reliance for the purpose of showing that there has been acquiescence in or submission to jurisdiction are briefly as follows: (i) On 21-5-1945, the defendant caused a vakalatnama to be filed in the Alipore Court and applied for and obtained adjournment of the suit till 20-7-1945, for the purpose of filing its written statement. (ii) In June 1945, the plaintiff applied to this Court for transfer of the suit under Clause 13 of the Letters Patent and a copy of the plaint was annexed to the
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