Issuance of notice only in one suit.

V. Ratnam, J.

1. The plaintiffs in O.S. No. 608 of 1976,, Sub-Court, Coimbatore, are the petitioners in this civil revision petition, which is directed against the order of the Court below dismissingan application filed by the petitioners in I.A. No. 99 of 1979 under Order 1, Rule 10(2), Civil Procedure Code, praying to strike out the name of the 2nd petitioner from the array of parties and to allow the 1st petitioner to continue the suit as the sole plaintiff. The circumstances under which the suit in O.S. No. 608 of 1976, Sub-Court, Coimbatore, was instituted by the petitioners may be stated thus: On 7th July, 1973, the 1st petitioner entrusted to the 1st respondent-railway, 160 cases of tea for carriage from Deem Deema Town in Assam to Coimbatore and a railway receipt No. 12)317025 was also obtained by the 1st petitioner from the 1st respondent. The 1st respondent, according to-the 1st petitioner, accepted the goods and agreed to carry the same for reward at railway! risk and to deliver the goods to the 2nd petitioner at Coimbatore Town. There was a misdespatch of the goods by the railway to Kidderpore Docks in Calcutta within the jurisdiction of the 5th respondent and the consignment was unloaded at Brooklya Siding, Calcutta, where delivery was obtained on coming to know of the same. At the time of effecting delivery, there was a shortage of 48 Kgs. and 4,433 Kgs. were stained by water and in a damaged condition and this was duly noted-in the railway delivery book at the time of delivery. Thereafter, according to the petitioners, the damaged goods were sold and a sum of Rs. 21,926.59 was realised and a loss of Rs. 8,043.59 was sustained' which according to the petitioners is recoverable from the respondents. The petitioners stated that by letter, dated 10th December, 1973, they preferred their claim under Section 78-B of the Tndian Railways Act and also served a notice, dated 12th December, 1973 under Section 80, Civil Procedure Code. In response to this, the 7th respondent replied stating that the claim had been referred to the 5th respondent and the 5th respondent took up the stand that the consignment had been duly delivered. In spite of numerous letters, according to the petitioners, the loss sustained by them had not been made good and therefore, the suit was instituted for the recovery of the sum of Rs. 8,043.59.

2. In the written statement filed on behalf of respondents 5 and 7, the suit claim has been repudiated. In paragraph 6 of the written statement filed by 7th respondent herein, an objection was taken with reference to the validity of the notice under Section 78-B of the Indian Railways Act as well as under Section 80, Civil Procedure Code.

3. In I.A. No. 99 of 1979, the petitioners filed an application under Order 1, Rule 10(2), Civil Procedure Code, praying that the name of the 2nd petitioner may be struck out from the array of parties on the ground that the 2nd petitioner had been impleaded as a co-plaintiff in its capacity as a consignee, that in view of the objection raised with reference to the defects in the notice under Section 80, Civil Procedure Code, an application was filed in I.A. No. 1677 of 1977 to transpose the 2nd petitioner as a defendant which was dismissed and that since the 2nd petitioner had no proprietary title to the goods, it was not a necessary party and its rank as a co-plaintiff in the suit was improper and should therefore be struck off from the array of parties. That application was resisted by the 5th respondent herein and others on the ground that rights have accrued to the respondents which cannot be easily allowed to be wiped out by striking the 2nd petitioner from the array of parties, that the decision in I.A. No. 1677 of 1977 will bar the petitioners from agitating the same matter over again in a different form and that the petition deserves to be dismissed.

4. The learned Second Additional Subordinate Judge, Coimbatore, who enquired into this application found that Sectio