( 1 ) THE appellant-plaintiff filed a suit being City Civil Suit No. 184 of 1961 for a declaration that the freight rate charged by the Western India Railway in respect of the plaintiffs consignments of wood from Canada was unauthorised and wrongful and that the correct freight rate was Re. 0-12-1 and not the freight rate at Rs. 1-11-8 charged for carrying freight of maple-wood. He therefore sued to recover Rs. 5349-3-0 by way of refund as being the excess amount of freight recovered from him.

( 2 ) THE appellant had received a consignment of blocks of canadian wood for manufacture of Bobbins from Canada. Those pieces of wood were despatched in 5 wagons from the Bombay Port Trust to the Railway Station at Kankaria between 27th to 31st October 1955 and of the five receipts prepared one was made out describing the wood as birch maple wood blocks and in the receipts regarding the four other consignments the wood was described to be brich wood. It was claimed that the freight chargeable for birch wood would fall within category 2 on the basis not otherwise classified timber and was chargeable at the rate at Re. 0-12-1 per Bengali Maund. It was therefore claimed that Rs. 1707-5-3 had been charged in excess.

( 3 ) SIMILARLY consignment of birch wood and birch wood blocks were forwarded in 13 wagons to Kankaria Railway Station between 9th November 1955 to 28th March 1956 but the wood despatched was classified as maple-wood and the freight rate charged was at the rate of Rs. 1-8-11 which was wrongly charged. He therefore claimed a total refund of Rs. 5349-3-0 from the Western Railway.

( 4 ) THE claim was resisted inter alia on the ground that the Civil Courts jurisdiction in the matter was barred under sec. 26 of the Indian Railways Act.

( 5 ) THE learned Judge was of opinion that the Court had no jurisdiction to hear the suit as the relief asked for fell within the ambit of sec. 41 Clauses (c) and (e) of the Indian Railways Act as they stood before sec. 41 came to be amended in 1957 and that with respect to such claim the jurisdiction of the Civil Court was barred under sec. 26 of the Act. He held that what the respondent-plaintiff complained about was the classification in which the consignment of blocks of wood should be put by the railway authorities while charging freight for the same at a higher rate by treating the wood blocks as of a higher class chargeable under Column 8 instead of treating the consignment as of timber wood falling under N. O. C. timber for which the charges were only Re. 0-12-1 per Bengali Maund.

( 6 ) IT is conceded by the learned advocates appearing for the parties that the provisions of sec. 41 of the Indian Railways Act as it stood before its amendment by Act No. 10 of 1957 would govern the rates of the charges since the cause of action for the reliefs prayed related to events which took place before the amended Act came into force on 27-7-58 and as the suit had been filed on 1-4-1958.

( 7 ) SEC. 41 (i) of the Act provides that any complaint that a railway administration:- (A ). . . . . . . . . . . . . . . . . (b) in charging station to station rates of wagon load rates which are unreasonable owing to any condition attached to them regarding minimum weight packing assumption of risk or any other matters or (c) is levying charges (other than standardised terminal charges) which are unreasonable or (d) has unreasonably placed a commodity in higher clause. may be made to the Tribunal and the Tribunal shall hear and decide any such complaint in accordance with the provisions of this chapter (that is chapter V of the Act ). Then sec. 46c of the Act defines certain terms such as classification meaning the grouping of commodities into classes as notified in the Indian Railway Conference Associations Goods Tariff and as in force at the commencement of the Indian Railways (Second Amendment) Act 1948 for the purpose of determining the rate to be charged.

( 8 ) THE question for consideration is wheth