Ratan Lal
Adukia & Anr Vs. Union of India [1989] INSC 203 (19 July 1989)
Venkatachalliah,
M.N. (J) Venkatachalliah, M.N. (J) Misra Rangnath
CITATION:
1990 AIR 104 1989 SCR (3) 440 1989 SCC (3) 537 JT 1989 (3) 148 1989 SCALE (2)28
CITATOR
INFO : R 1990 SC2072 (31)
ACT:
Indian
Railways Act, 1890: Section 80--Suits for compensation against Railways--Choice
of forum for cognizance of suits--Whether limited by the section itself or
provisions of Section 20 Code of Civil Procedure, 1908 and Section 18 of the
Presidency Small Cause Courts Act, 1882 are also applicable.
Statutory
Interpretation--Doctrine of implied repeal--Applicability of.
HEAD NOTE:
Under
Section 80 of the Indian Railways Act, 1890, prior to its substitution by the
Amendment Act, 1961, the choice of forum for filing suits for compensation for
loss, destruction, damage, deterioration or non-delivery of goods etc. carried
by the Railways was regulated by Section 20 of the Code of Civil Procedure or
Section 18 of the Presidency Small Cause Courts Act, 1882, as the case may be.
However, the new section, besides making specific reference to a certain class
of suits, to be dealt with under the section and identifying the Railways
Administrations which were liable to the claim, also specifically provided the
places where such suits may be instituted.
The
appellants filed two separate suits in the courts at Alipore and Calcutta for recovery of certain amounts
from the Railways for short deliveries of consignments booked by them. The
respondent contended that in view of Section 80 of the Indian Railways Act,
1890, the trial courts concerned had no jurisdiction. The trial courts rejected
the objection and decreed the suits.
In the
revisions filed by the respondent, the Full Bench of the High Court, by its
common order, held that the trial courts had no jurisdiction. It was of the
view that the new Section 80, was a complete and self-contained special law, as
to the place of suing, respecting suits envisaged by the section derogating
from the generally of the provisions of Section 20 of the Code of Civil
Procedure, 1890 and Section 18 of the Presidency Town Small Cause Courts Act,
1882 and that it brought about an implied repeal of those provisions as to the
jurisdiction of 441 courts by itself providing a jurisdiction to those suits.
In the
appeals before this Court it was contended on behalf of the appellants that the
legislative intent was clear: that it did not render Section 80 over-riding, by
not expressly excluding Section 20 of the Code of Civil Procedure, 1890, and
that even if the provisions of Section 80 were held to be a later special law,
the principle of implied repeal could not be invoked, as there was no
inconsistency between the two provisions and, on the contrary, both sets of
provisions could exist and prevail.
Dismissing
the appeals,
HELD:
The doctrine of implied repeal is based on the postulate that the legislature
which is presumed to know the existing state of the law did not intend to
create any confusion by retaining conflicting provisions.. Courts in applying
this doctrine, are supposed merely to give effect to the legislative intent by
examining the object and scope of the two enactments. But in a conceivable
case, the very existence of two provisions may by itself, lead to an inference
of mutual irreconcilability if the later set of provisions is by itself a
complete code with respect to the same matter. In such a case, the actual
detailed comparison of the two sets of provisions may not be necessary.
[452F-G] It is a matter of legislative intent that the two sets of provisions
were not expected to be applied simultaneously. [452H] Section 80 is a special
provision dealing with certain class of suits distinguishable on the basis of
their particular subject-matter. It made a conscious departure on the law as to
the place of suing in respect of suits envisaged by that Section, and is a
self-contained provision in regard to the choice of fora for such suits. There
was no need for the legislature to specify the places of suing which would
otherwise be covered by Section 20 C.P.C. unless the special prescription as to
places of suing was considered to be necessary in derogation to the general law
as the matter contained in Section 20 C.P.C. or the provisions in the Small
Cause Courts Act. [453B-C] Assam Cold
Storage v. Union of India, AIR 1971 Assam 69;
Hindustan
Machine Tools v. Union of India, AIR 1985 Madras 130; Oghamal Chaudhury v.
Union of India, [1974] CLJ 420 and Union of India v. Indian Hume Pipe Co. Ltd.,
AIR 1981 Bombay 414, approved.
442
New India Assurance Co. v. Union of India, AIR 1981 Delhi 135 and Union of
India v. C.R. Prabhanna, AIR 1977 132, over-ruled.
Shah Babulal
Khimji v. Jaya Ben D. Kania and another, [1982] 1 SCR 187; Municipal Council, Palai
v. T.J. Joseph and others, [1964] 2 SCR 87; Zaver Bhai Amaidas v. State of
Bombay, AIR 1954 SC 752; Union of India v. Ladu Lal Jain, [1964] 3 SCR 624 and
Union of India v. The Steel Stock Holders Syndicate, Poona, AIR 1976 SC 879, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal Nos. 224 & 734 of 1988.
From
the Judgment and Order dated 17.6.87 of the Calcutta High Court in Ref. No.
1/83 from C.R. Case No. 2938-40/81 & Civil Order No. 2537/81, C.R. Case No.
75/81, Civil Order No. 362/82, & C.R. No. 3803 of 1980.
Dr. Shankar
Ghosh, Badar Durrez Ahmed, Parijat Sinha, A.K. Sarkar, A.K. Sahay for the
Appellants.
Kuldip
Singh, Additional Solicitor General, A ,K. Ganguli, C.V. Subba Rao, A. Subba Rao
and Hemant Sharma for the Respondent.
The
Judgment of the Court was delivered by VENKATACHALIAH, J. These appeals, by
certificate, preferred against the common order dated 17.6.1987 of the High
Court of Calcutta in Full Bench Reference 1 of 1983 raise a short and
interesting question, of some general importance, whether the choice of the
forum for the cognizance of suits envisaged in Section 80 of the Indian
Railways Act, 1890 (As substituted by Section 14 of the Indian Railways
(Amendment) Act, 1961 (Act 39 of 1961) is limited by Section 80 itself or
whether provisions of Section 20 of the Code of Civil Procedure, 1908 and
Section 19 of the Presidency Small Cause Courts Act, 1882, as the cases may be,
in regard to places of suing, are also applicable to the suits referred to in
the said Section 80.
The
question, in other words, is whether the said Section 80 is a complete,
self-contained, exhaustive Code in regard to the place of suing respecting
suits constituting a special law for such suits excluding, by necessary
implication, the operation of provisions of Section 20 of the Code of Civil
Procedure, 1908 and Section 18 of the Presidency 443 Small Cause Courts Act,
1882. The Full Bench, resolving the earlier conflicts of Judicial opinion in
the High Court on the points has held Section 80 as containing within it a
self-contained scheme for suits envisaged by it and that Section 20 of the Code
of Civil Procedure and Section 18 of the Presidency Small Cause Courts, Act
1882 stand excluded from operation. The Full Bench, however, has left open the
question whether Section 80 also over-rides clause 12 of the letters patent.
2. In
the original proceedings from which C.A. 224 of 1988 arises, appellant
instituted Money Suit No. 35 of 1978 against the Respondent in the Court of the
6th Sub-Judge at Alipore, Distt.--24 Parganas, West Bengal, seeking recovery of
Rs. 13,200 respecting an alleged short delivery of a consignment booked with
the Respondent on 94.4.1975 ExErnakulam to Ranchi, a station under the South
Eastern Railway Administration. Respondent contested the suit on grounds, inter-alia,
that having regard to the said Section 80, the Court at Alipore had no
jurisdiction. The trialCourt by its order 22.5. 1981 having rejected this
objection as to jurisdiction, Respondent preferred C.R. 2938 of 1981 under
Section 115 of the Code of Civil Procedure, before the High Court to have that
order revised. The matter was referred to a Full-Bench, culminating in the
order now under appeal.
3. In C.A. 734 of 1988, appellant instituted a Suit No. 3831 of
1985 in the Court of the Small Causes, Calcutta, for the recovery of a sum of Rs.6,573.50p. on account of snort
deliveries of two consignments booked with the Respondent on 27.4.1984 and
24.7.1984 respectively, Ex-Saugar in Central Railway to Ramkrishtopur in
Eastern Railway. Similar objection as to jurisdiction having been urged, the
trial Court rejected that objection and decreed the suit. This was assailed
before the High Court by the Respondent. The FullBench, by its common-order,
has held that the trial Court had no jurisdiction and directed the return of
the plaint for presentation to the proper Court.
4. In
order that the contentions of Dr. Shankar Ghosh urged in support of these
appeals are apprehended in their proper perspective, it becomes necessary to
refer to and notice the legislative history of the provision. Section 14 of the
Indian Railways (Amendment) Act, 1961, substituted the old Section 80 by a new
provision. The old Section reads:
"Section
80: suit for compensation for injury to through booked traffic:
444
Notwithstanding anything in any agreement purporting to limit the liability of
Railway Administration with respect to traffic while on the Railway of the
another Administration, a suit for compensation for loss of the life of, or
personal injury to, a passenger, or for loss, destruction or deterioration of
animals or goods where the passenger was or the animals or goods were booked
through over the Railways of two or more Railway Administrations, may be
brought either against the Railway Administration from which the passengers
obtained his pass or purchased his ticket, or to which the animals or goods
were delivered by the consignor thereof, as the case may be, or against the
Railway Administration on whose Railway the loss, injury, destruction or
deterioration occurred." The new Section 80 substituted in 1961 by the
amending Act provides:
"80.
Suits for Compensation: A suit for compensation for loss of the life of, or
personal injury to, a passenger or for loss, destruction, damage, deterioration
or non-delivery of animals or goods may be instituted.
(a) if
the passenger was, or the animals or goods were, booked from one station to
another on the railway of the same railway administration against that railways
administration;
(b) if
the passenger was, or the animals or goods were, booked through over the
railway of two or more railway administration against the railway
administration from which the passenger obtained his pass or purchased his
ticket or to which the animals or goods were delivered for carriage, as the case
may be, or against the railway administration on whose railway the destination
station lies, or the loss, injury, destruction, damage or deterioration
occurred;
and,
in either case the suit may be instituted in a Court having jurisdiction over
the place at which the passenger obtained his pass or purchased his ticket or
the animals or goods were delivered for carriage, as the case may be, or 445
over the place in which the destination station lies, or the loss injury,
destruction, damage or deterioration occurred." The changes brought about
in the scheme of the provisions are quite marked. The old Section did not deal
with--liability for claims in respect of goods carried by a single Railway. It
concerned itself with goods etc., carried by more than one Railways or what, in
the concerned jargon, is called "through booked traffic" and provided
that a suit inter-alia for loss, destruction, damage, deterioration or nondelivery
could be brought against the Railway Administration with which the booking had
taken place or against the Railway Administration of the delivery station. The
old section spoke nothing of the places where such suits could be laid. The
choice of the forum was regulated by Section 20 of the Code of Civil Procedure
or the relevant provisions of the Presidency Small Cause Courts Act, as the
case may be.
This
Court in Union of India v. Ladu Lal Jain, [1964] 3 SCR 624 observed that the
principal place of Railway Administration can be said to be the place where the
Railways can be said to carry on business for purposes of clause (a) of Section
20 of the Code of Civil Procedure. It was held:
"The
principle behind the provisions of Cls. (a) and (b) of S. 20 is that the suit
be instituted at a place where the defendant be able to defend the suit without
undue trouble." " ..... Union of India carries on the business of
running railways and, can be sued in the Court of the subordinate Judge of Gauhati
within whose territorial jurisdiction the head-quarters of one of the railways
run by the Union is situated." This was said in
a case governed by the old Section. Does the position continue to hold good
even after the new Section 80 was substituted in place of the old? the new
Section 80 (substituted by Act 39 of 1961), however, brought about far reaching
changes in its scheme, the notable amongst them being three. The new Section
made specific reference to a certain class of suits having regard to their
subject-matter, to be dealt with under that Section. Secondly, the new Section
also dealt with identity of the Railway Administrations which were made liable
to the claim 446 and, thirdly, the section specifically provided the places
where such suits "may be instituted". Referring generally to the
scope of the changes brought about by the 1961 amendment to Chapter VII of the
Railways Act, 1890, this Court, in Union of India v. The Steel Stock Holders
Syndicate, Poona, AIR 1976 SC 879 observed:
"The
history and the object with which the radical provisions of the new Act were
introduced bear testimony to change of the nature of the liability of the
railway administration." "We, therefore, agree with the learned
counsel for the respondent that under the new Act the liability of the Railway
has been increased so as to take upon itself the responsibility of a common
carrier." The new comprehensiveness of the scheme of the amendments was
one of the circumstances that commended itself to the High Court to persuade it
to hold that the new Section 80 in Chapter VII, constituted a complete and
self-contained special law as to the place of suing respecting suits envisaged
by that Section derogating from the generality of the provisions of Section 20
of the Code of Civil Procedure or the provisions touching the jurisdiction of
the Small Cause Courts and that with the enactment of the new Section 80 there
was an implied repeal of those other provisions respecting such suits.
5. The
High Court took due notice of the fact that the new Section did not expressly
provide that in respect of suits envisaged by it, the provisions of Section 20
of the Code of Civil Procedure or Section 18 of the Presidency Small Cause
Courts Act, 1882, as the case may be, shall no longer be applicable. The High
Court took due note of the situation emerging from this omission. It noticed:
"the
new Section 80, no doubt, did not expressly provide that the said provision of
Section 80 of the Act would override all other laws. But Section 80 of the
Indian Railways Act is in the nature of the special provision applicable only
to suits for compensation against the Railways." "The point is
whether by enacting" .... the suit may be instituted" in the Courts
having jurisdiction over the places mentioned in the last part of Section 80 of
the Indian Railways Act, 1890, the said Section of the Railways Act by 447
implication overrides section 20 of the Civil Procedure Code, 1908 and Section
18 of the Presidency Small Cause Courts Act, 1882." The High Court took
into consideration what, according to it, was the real intention in enacting
the new Section 80 and was persuaded to the view that the Section brought about
an implied repeal of the other provisions as to the jurisdiction of Courts by
itself providing a jurisdiction to these suits. It was observed:
"By
mentioning the Courts in which the suits for compensation may be filed, Section
80 of the Railways Act purports to deal with matters which have been dealt with
in Section 20 of the Code and Section 18 of the Presidency Small Causes Courts
Act. These two sets of laws deal with the same subject of territorial jurisdiction
of Courts. We are, therefore, required to ascertain whether in respect of suits
for compensation against the Railways, the intention was to override the
general law." "We have already indicated that Section 80 of the
Railways Act was a particular or special legislation. Section 80 of the
Railways Act purports to deal with the subject of places for instituting
particular class of suits which was previously covered by Section 20 of the
Code which was a general enactment. Two statutes cover the same field, i.e.,
territorial jurisdiction. Mentioning for the first time in Section 80 of the
Railways Act of the places where suits for compensation may be instituted was
itself introductive of a new law implying a negative. When the same subject of
territorial jurisdiction has been dealt with in the subsequent legislation
(i.e., Section 80 of the Railways Act) the prior laws (Section 20 of the Code
and Section 13 of the Presidency Small Cause Courts Act) on the same subject
were not intended to subsist." "In other words, Section 80 of the
Indian Railways Act by requiring something special to be done repealed by
necessary implication the former general statute relating to territorial
jurisdiction of Courts in so far as the suits for compensation against the Railways
were concerned." Any other construction, according to the High Court,
would lead 448 to anomalies and render Section 80 a surplusage. High Court
said:
"If
it was to be held that clause (c) of Section 20 of the Code still applied to
suits for compensation against the Railways, then the cause of action for the
purpose of jurisdiction of Courts would arise not only at the three places
mentioned in Section 80 of the Act but at several other places. In other words,
the provisions of Section 80 of the Act relating to places where the suits for
compensation may be instituted, would be, in that event, surplus age and
unnecessary."
6. In
the view of the High Court, the distinction between provisions in the New
Section 80 on the one hand and Section 20 of the Code of Civil Procedure or
Section 18 of the Small Cause Courts Act on the other, assumed particular
significance as qualifying the Court's jurisdiction in respect of a particular
subject-matter as distinct from those that relate to a Court's territorial jurisdiction
or pecuniary jurisdiction. The High Court observed:
"Section
80 of the Railways Act, in effect, limits the application of Section 20 of the
Code by specifying the Courts which shall have jurisdiction over the suits
whose subject matter is the claim for compensation against the Railways for
loss of life or personal injury to a passenger or loss, destruction, damage,
deterioration or non-delivery of animals or goods. We have already held that
Section 80 of the Act, in other words is in the nature of a special provision
in respect of classes of suits mentioned in Section 80 of the Indian Railways
Act."
7. Dr.
Shankar Ghosh assailing the soundness of the High Court's view, urged that the
proposition on which its conclusions rest, if accepted, would render what was
intended as a mere an enabling entitlement to lose its character as such and
become, on the contrary, a limiting factor and convert a right into a
liability. Dr. Ghosh said that the legislative intent was clear; it did not
render Section 80 over-riding by not expressly excluding Section 20 of the Code
of Civil Procedure. It expressly supplied, says Dr. Ghosh, an enabling
provision when it chose the expression" ..... may be instituted". It
is further contended that the doctrine of implied repeal was, clearly
inapplicable to the situation.
449
Dr. Ghosh commended for acceptance the reasoning of the Assam and Madras High
Courts, in Assam Cold Storage v. Union of India, AIR 1971 Assam 69 and
Hindustan Machine fools v. Union of India, AIR 1985 Madras 130, respectively,
in preference to the views of the Calcutta, Bombay, Delhi and Karnataka High
Courts in Oghamal Chaudhury v. Union of India, [1974] CLJ 420; Union of India
v. Indian Hume Pipe Co. Ltd., AIR 1981 Bombay 414; New India Assurance Co. v.
Union of India, AIR 1981 Delhi 135 and Union of India v. C.R. Prabhanna,
AIR 1977 132 respectively.
8. The
thrust of the arguments of Dr. Ghosh is that the construction placed by the
High Court ignores the crucial aspect that while the old Section 80 did not
render the destination railway as such, liable to be sued if loss was not
proved to have occurred there, the new Section, however, renders the
destination Railway also liable even though no loss occurred there. The
provision in the new Section 80 enabling the suit to be instituted at the place
of the destination Railway, where no part of the cause of action might
otherwise be shown to have arisen, was, it is urged, a mere consequential
provision--to give effect to the substantive provision, that the destination
Railway was also liable. Dr. Ghosh emphasised the expression "may be
instituted" in Section 80 to reinforce his contention that Section 80 did
really expand the rights of and not seek to restrict therein suitors. Learned
counsel also emphasised that section 80 did not contain any words expressly
excluding clauses (a) and (b) of Section 20, Code of Civil Procedure, in so far
as suits contemplated by Section 80 were concerned. The new Section 80, it is
contended, did not intend to impair the choice of the forum afforded by Section
20 of the Code of Civil Procedure and that any contrary view, offends settled
principles of statutory construction guiding the matter. Learned counsel
invited attention to the following observations in Ajay Kumar Banerjee &
Others etc. v. Union of India & Others etc., [1984] 3 SCR 252 at page 282:
"The
general rule to be followed in case of conflict between two statutes is that
the later abrogates the earlier one. In other words, a prior special law, would
yield to a later general law, if either of the two following conditions is
satisfied:
(i)
The two are inconsistent with each other;
(ii)
There is some express reference in the later to the earlier enactment.
450 If
either of these two conditions is fulfilled, the later law, even though
general, would prevail." and submitted that even if, conversely, the
provisions of Section 80 are held to be a later special law, the principle of
implied repeal could not be invoked as there was no inconsistency between the
two provisions and that, on the contrary, both set of provisions could co-exist
and prevail.
Learned
counsel invited our attention to and relied upon the following passage in Shah Babulal
Khimji v. Jaya Ben D. Kania and Another, [1982] 1 SCR 187:
"We
find ourselves in complete agreement with the arguments of Mr. Sorabjee that in
the instant case S. 104 read with Order 43, Rule 1 does not in any way abridge,
interfere with or curb the powers conferred on the Trial Judge by Clause 15 of
the Letters Patent. What Section 104 read with Order 43, Rule 1 does is merely
to give an additional remedy by way of an appeal from the orders of the Trial
Judge to a larger Bench." The learned counsel also placed reliance on the
following observations of this Court in Municipal Council, Palai v. T.J. Joseph
and Others, [1964] 2 SCR 87 at page 98:
"In
order to ascertain whether there is repugnancy or not this Court has laid down
the following principles in Deep Chand v. The State of Uttar Pradesh,:
1.
Whether there is direct conflict between the two provisions;
2.
Whether the legislature intended to lay down an exhaustive code in respect of
the subject matter replacing the earlier law;
3.
Whether the two laws occupy the same field."
9.
Reliance was also placed on Section 21-A inserted by Section 4 of the
Presidency Small Cause Courts (West Bengal Amendment) Act, 1980 which provides:
"21A.
Act to override other laws including Letters Patent: The provisions of this Act
shall have effect notwithstanding 451 anything to the contrary in any other
law, including in particular the Letters Patent of the High Court." to
contend that the construction opted for by the High Court would run in the
teeth of this express provision.
10.
Lastly, learned counsel invited our attention to the following passage in
Crawford on Statutory construction:
"All
laws are presumed to be passed with deliberation, and with full knowledge of
all existing cases on the same subject, it is but reasonable to conclude that
the Legislature, in passing a statute, did not intend to interfere with or
abrogate any former law relating to the same matter, unless the repugnancy
between the two is irreconcilable. Bowen v. Lease, 5 Will 225. It is a rule,
says Sedwick that a general statute without negative words will not repeal the
particular provisions of a former one, unless the two acts are irreconcilably
inconsistent." (p. 633) "And, as we have already suggested, it is
essential that the new statute cover the entire subject matter of the old;
otherwise there is no indication. of the intent of the Legislature to abrogate
the old law. Consequently, the latter enactment will be constructed as
continuation of the old one." (624) It was urged that repeal by
implication is not to be presumed and that, on the contrary, there is always presumption
against a repeal by implication. In order that there be a repeal by
implication, there should be a clear, irreconcilable conflict between the two
sets of provisions and the later enactment should be an exhaustive code in
itself in respect of the subject matter. On these submissions, Dr. Ghosh says
that the view taken by the High Court is clearly unsustainable in law.
11.
The contention emphasised is that where a statute merely recognises a right
pre-existing in common-law and provides a remedy, such a remedy, unless the
statute expressly bans or excludes other remedies, could only be an additional
or concurrent one open to an election.
It is
true that where a statute does not itself bring into being a 452 new right not
a pre-existing right and also provides a remedy therefore so however that the
right and the remedy cannot be said to have been brought into existence for the
first time uno-flatu, such a remedy would not generally be held to be exclusive
but only an additional and concurrent one, along with the pre-existing
remedies, unless there are express indications to the contrary in the statute
itself.
In
Municipal Council, Palai v. T.J. Joseph, [1964] 2 SCR 87, this Court considered
the tests of repugnancy applied under Article 254(2) of the Constitution,
relevant in the examination of circumstances bringing about an implied repeal.
Strictly speaking the examination of the question whether an act of Parliament
prevails against the law enacted by a State under Article 254, does not really
involve any question of repeal. In Zaver Bhai Amaidas v. State of Bombay, AIR
1954 SC 752 this Court applied the test conversely, of the principle of implied
repeal to cases of repugnancy under Article 254(2). It was observed:
"It
is true, as already pointed out, that on a question under Art. 25(1) whether an
Act of Parliament prevails against a law of the State, no question of repeal
arises, but the principle on which the rule of implied repeal rests, namely,
that if the subject-matter of the later legislation is identical with that of
the earlier, so that they cannot both stand together, then the earlier is
repealed by the later enactment, will be equally applicable to a question
trader Art. 254(2) where the further legislation by Parliament is in respect of
the same matter as that of the State law." The doctrine of implied repeal
is based on the postulate that the legislature which is presumed to know the
existing state of the law did not intend to create any confusion by retaining
conflicting provisions. Courts, in applying this doctrine, are supposed merely
to give effect to the legislative intent by examining the object and scope of
the two enactments. But in a conceivable case, the very existence of two
provisions may by itself, and without more, lead to an inference of mutual
irreconcilability if the later set of provisions is by itself a complete code
with respect to the same matter. In such a case the actual detailed comparison
of the two sets of provisions may not be necessary. It is a matter of legislative
intent that the two sets of provisions were not expected to be applied
simultaneously. Section 80 is a special provi453 sion. It deals with certain
class of suits distinguishable on the basis of their particular
subject-matters.
The
High Court has come to the conclusion that new Section 80 made a conscious
departure on the law as to the place of suing in respect of suits of a
particular subjectmatter envisaged by that Section. The High Court has held
that the new Section 80 is a selfcontained provision in regard to the choice of
fora for such suits. According to the High Court, there was no need for the
legislature to specify the places of suing which would otherwise be covered by
Section 20 C.P.C. unless the special prescription as to places of suing was
considered to be necessary--in derogation to the general law as contained in
Sec. 20 CPC or the provisions in the Small cause Courts Act.
As to
the words "may be instituted" occurring in that Section, the High
Court observed:
"The
use of the expression 'may be instituted' in Section 80 of the Railways Act was
equivalent to 'shall be instituted'. Section 80 conferred right to institute
suits for compensation against the Railways for breach of their obligations for
carrying passengers, animals or goods specified in Chapter VII of the Indian
Railways Act. Both the obligation on the part of the Railways and the right of
the consignor and the consignee to institute suits are now statutory in their
nature. The clear intendment of the Legislature was that it would be obligatory
for the plaintiffs to institute suits only in the Courts mentioned in Section
80 of the Railways Act for enforcement of the claims for compensation against
the Railways."
12.
After a consideration of the matter, we are inclined to the view that the
reasoning of and the conclusion reached by the Full Bench of the Calcutta High
Court that the new Section 80 is a selfcontained provision are sound and
require to be preferred to the view expressed by the Assam and the Madras High
Courts. The view of the Full-Bench is to be preferred having regard to the
weight and preponderance of the relevant interpretatory criteria. No appeal, in
our opinion, could be made to Section 21A of the State Amendment to the Small
Cause Courts Act either, in as much as, that provision cannot be understood to
have been intended to cover a situation of the present 454 type. It does not
exclude a special law applicable to and governing a distinct class of subject
matter intended to be covered by that special law.
In the
result, for the fore-going reasons, these appeals fail and are dismissed; but
in the circumstances, without any directions as to costs.
N.P.V.
Appeals dismissed.
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