( 1 ) THIS is plaintiff-firm's appeal against the dismissal of its suit for damages.

( 2 ) MANILAL alias Manibhai (P. W. 4) booked 52 bags of tobacco on 11-7-1947 at bhaili station on the Gaekwar Baroda State Railway for transport to Damoh on the great Indian Peninsula Railway. The consignee was the plaintiff. It was not disputed before us that the consignment reached Pratapuagar on the Bombay baroda and Central India Railway without any damage and was despatched from that station on 12-7-1947 without delay. The consignment was placed at that station in wagon No. N. W. R. 37414 and travelled throughout in that wagon to damoh. The wagon reached Ujjain on 19-7-1947, Bina on 9-8-1947 and Sagaron 12-8-1947. There was no remark about any damage in the summary books of these railway stations. When the consignment was unloaded at Damoh on 16-8-1947, it was noticed that 39 bags were completely damaged by rains and only the remaining 13 bags were in a good condition. The loss was estimated at Rs. 4,923 and is not in dispute. The plaintiff, had paid Rs. 2,430-10-0 on account of excise duty. The proportionate duty on 39 bags was Rs. 1,898-14-0, which was claimed by the plaintiff besides Rs. 4,923. The plaintiff also claimed damages at the rate of 20 per cent profits on the amount of the price. The lower Court held that the profits which would have earned would have been only 10 per cent of the price. The claim at this rate amounts to Rs. 492-4-6. The plaintiff did not in arguments: claim anything more on this account.

( 3 ) THE plaintiff's claim was based on a plea of misconduct of the railway servants either of the Bombay, Baroda and Central India Railway or of the Great Indian peninsula Railway. Its case was that the goods were allowed to be exposed to rains for a long time at some stations or they were loaded in a leaky wagon.

( 4 ) THE plaint was filed on 29-7-1948, in which the defendant was described as "the Dominion of India, Ministry of Railway, Central Government, New Delhi". On amendment of Section 79, Civil Procedure Code, in 1950, after the advent of the constitution, the word "union" was substituted for "dominion". The suit was defended on behalf of the Great Indian Peninsula Railway which is also contesting the appeal. It wits contended by the learned counsel for the respondent. Union of india that as the railway administration, representing the Bombay, Baroda and central India Railway was not made party to the suit, the Union's liability cannot be extended to the actions of the Bombay, Baroda and Central India Railway. This plea was not taken in the Court below. However, it has no substance.

( 5 ) IT is true that in the plaint the Union of India was not described as representing any particular railway administrations. 'the plaint, however, was specific as to the administrations against which the claim was laid. The Union of India was thus aware that it had to defend the actions on behalf of both the railway adminstrations. The case is analogous to Chandra-Mohan v. Union of India, AIR 1953 Assam 193 (FB) (A) in which Union of India v. Hussain, AIR 1952 Assam 51 (B) which had followed Dominion of India v. firm Museram Kishunprasad, ILR, (1950) Nag 212 : (AIR 1950 Nag 85) (c) was referred to and distinguished. The Nagpur case had arisen before the Indian Independence Act was passed, and appears not to be intended to apply to cases arising after that enactment. It is no doubt true that Section 80 of the Indian Railways Act, 1890 permits an action against the railway administration, but it only provides for their liability and not for frame of the suit. The expression "railway administration" or "administration" has been defined in Section 3 (6) of the Indian Railways Act, and is wide enough to include the Government administering the railways. Section 79 of the Code of Civil procedure enacts that where a suit is instituted against the Central Government, the authority to be impleaded as defendant is the Union of India. The inf

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