judgement:
Appeal No. 437 of 1965.
479 Appeal from the judgment and order dated April 15, 1964 of the Madhya Pradesh High Court in Misc.
Petition No. 90 of 1964.
M. section Gupta, for the appellant.
G. section Pathak, Y. section Dharmadhikari and A. G. Ratnaparkhi, for respondent No. 1.
The Judgment of the Court was delivered by Hidayatullah, J.
This appeal arises from an election petition filed after the last General Election to the Madhya Pradesh Legislative Assembly, in respect of the election from the Kasdol Legislative Assembly constituency held on May 4, 1963.
The first respondent was declared elected and the appellant challenged his election alleging several acts of corrupt practices, publication of false statements, filing of false accounts etc.
The election petition was supported by an affidavit sworn before K. section Moghe, Officer for Administering Oaths on Affidavits, Jabalpur.
Moghe was the Clerk of Court in the District Court, Jabalpur.
The first respondent objected that the affidavit was not sworn before the proper authority as required by rule 94 A of the Conduct of Election Rules, 1961, and it was, therefore, prayed that the election petition should be dismissed or the allegations about corrupt practices should be struck out.
The Election Tribunal, by an order dated October 31, 1963 accepted the objection but allowed the filing of a proper affidavit and a fresh affidavit was taken on record.
No action was taken against that order.
It appears that the Election Tribunal had framed two issues for determination.
They were: "Issue No. 18 : Whether the affidavit filed by the petitioner in support of his petition is bad in law, as not properly sworn before a competent Officer duly authorised to attest and authenticate an affidavit and does not also comply with the provisions of Section 83 of the Representation of the People Act and the Rules made thereunder.
If so, whether the petition is liable to be dismissed on this ground." "Issue No. 20 : Whether the various alleged acts of corrupt practices mentioned in the petition are duly supported by an affidavit as required under Section 81(3) of the Representation of People Act ? If not, what is its effect on this petition?" 480 On February 14, 1964 the first respondent filed an application drawing attention to the latter part of issue No. 20 and asked inter alia for a finding whether the election petition was not liable to be dismissed when the affidavit was not proper The Tribunal by an order passed on February 24, 1964 rejected the last contention and held that as a fresh affidavit was filed the petition could proceed to trial.
On March 2, 1964 the first respondent filed a petition under Articles 226 and 227 of the Constitution in the High Court of Madhya Pradesh challenging both the orders and asked that they be quashed.
The High Court, by its order now under appeal by certificate, quashed the two orders and the Tribunal was directed to deal further with the petition in the light of the order of the High Court.
The High Court in an elaborate order has considered whether the provisions of rule 94 A were mandatory or directory but it did not address itself to the question whether the first affidavit was proper or not.
This was, perhaps, due to the fact that the appellant seems to have conceded before the Tribunal that the first affidavit was not proper.
This concession was sought to be withdrawn in this appeal by the appellant and on looking into the record we were satisfied that the concession was wrongly made and should be allowed to be withdrawn.
We accordingly heard arguments on the question whether the original affidavit did not satisfy the Conduct of Election Rules and the Representation of the People Act.
We are satisfied that the first affidavit was proper and the second affidavit was not necessary.
Before we give our decision on this point we shall first set down the relevant provisions.
Section 83 of the Representation of People Act provided that "83 (1) an election petition (a) Shall contain a concise statement of the material facts on which the petitioner relies; (b) Shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of such practice; and 481 (c) Shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings. "Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
" Rule 94 A of the Conduct of Election Rules, 1961 next provides: "94 A. The affidavit referred to in the, proviso to Sub section (1) of Section 83 shall be sworn before a Magistrate of the First Class or a Notary or a Commissioner of Oaths and shall be in Form 25.
" Form 25 need not be reproduced but the endorsement of the officer before whom the affidavit is sworn may be reproduced "Form 25.
Solemnly affirmed/sworn by Shri/Shrimati . . at. thisday. of 196 Before me.
.Magistrate. .of.
First Class Notary/Commissioner of Oaths".
The relevant rules of the High Court and the notifications issued by the Government have been placed in our hands. 'Me High Court has framed Rules relating to the Civil Procedure Code and rule 20 dealing with affidavits reads : "20.
All Courts dealing with affidavits should make calls for affidavits at I I a.m. and 2 p.m. every day.
If ,the Clerk of Court or other ministerial officer is appointed a Commissioner for administering oath of affidavits, he will discharge that function at such time as may be fixed by the District Judge in this behalf." 482 Rule 34 says : "34.
The Officer administering the oath shall make the following endorsement on every affidavit sworn before him and shall date, sign and seal the same.
"Sworn before me on the day of . . 19 by son of . . who is personally known to me (or) who has been identified by whose signature is/signatures are hereto appended.
SEAL Signature Designation".
The affidavit which was sworn before Moghe bore the above endorsement and Moghe described himself as "Officer for Administering Oaths on Affidavits, Jabalpur, Madhya Pradesh".
On February 16, 1959 the Government of Madhya Pradesh had issued a notification under District Judges were empowered under section 139(c) of the Code of Civil Procedure to appoint Commissioners to administer oaths on affidavits made under the said Code and the District Judge, Jabalpur in exercise of the powers so conferred appointed, among others, the Clerk of Court attached to his office to be ex Officio Commissioner for the purpose of administration of oaths on affidavits made under the Code of Civil Procedure.
It may be pointed out that subsequently in May 1960 the first notification was amended and in place of the words in the first notification "empowers all the District Judges to appoint Commissioners to administer oaths on affidavit made the words "generally empowers the Court of District Judges to appoint officers to administer oaths to deponents in cases of affidavits" where substituted.
This change does not affect the present matter because the appointment of Moghe was tinder the first notification and not under the second.
The contention of the first respondent is that the affidavit did not comply with the requirements of rule 94 A because Moghe was not a Commissioner of Oaths but was an officer for Administration of Oaths for the purpose of section 139(c) of the Code.
We shall refer to that provision presently.
The rule does not state before which Commissioner the affi davit must be sworn.
It must, therefore, be read as including all Commissioners of Oaths duly appointed.
The election petition is verified as a plaint but the affidavit is needed additionally 483 when allegations of a particular type are made.
The rule really requires an affidavit so that action for perjury may be based on it if the allegation is found to be false.
We enquired whether, in the State of Madhya Pradesh, there was any other provision under which Commissioners of Oaths could be appointed but none was shown.
The Indian Oaths Act, no doubt, consolidates the law relating to judicial oaths and for other purposes.
Section 4 of that Act gives authority to "all courts and persons having by law or consent of parties authority to receive evidence", "to administer, by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law.
" This is a general provision and it mentions generally persons having by law authority to receive evidence.
It is difficult to say that the Clerk of Court answers this description.
But there are other provisions of law under which oaths may be administered for purposes of affidavits.
Section 139 of the Code of Civil Procedure, under which the Clerk of Court was given this jurisdiction, provides : "139.
Oath on affidavit by whom to be administered.
In the case of any affidavit under this Code (a) any Court or Magistrate, or (b) any officer or other person whom a High Court may appoint in this behalf, or (c) any officer appointed by any other Court which the Provincial Government has generally or specially empowered in this behalf, may administer the oath to the deponent".
Similarly, section 539 of the Code of Criminal Procedure provides.
Courts and persons before whom affidavits may be sworn.
Affidavits and affirmations to be used before any High Court or any officer of such Court may be sworn and affirmed before such Court or the Clerk of the State, or any Commissioner or other person appointed by such Court for that purpose, or any Judge, or any Commissioner for taking affidavits in any Court of Record in India, or any Commissioner to administer oaths in England or Ireland, or any Magistrate authorized to take affidavits or affirmations in Scotland.
" 484 It is therefore not necessary that an appointment with reference to the Oaths Act had to be made.
The Clerk of Court was appointed a Commissioner of Oaths under section 139(c) quoted above.
It is contended that the powers of such a Commissioner were to administer oaths for purposes of affidavits under the Code of Civil Procedure and this meant Or.
XIX of the Code.
It is pointed out that none of the conditions under which the affidavit is required under that Order applies here.
It is argued that Commissioners appointed under one statute cannot swear affidavits prescribed under another statute, and section 539 of the Code of Criminal Procedure is also cited as an instance.
This may be so.
It may be that an affidavit sworn by a District Clerk of Court may not be good for the purposes of the Code of Criminal Procedure and vice versa but that is because the restriction is to be found in section 139 of the one ,Code and section 539 of the other.
Rule 94 A makes no such condition and makes receivable an affidavit sworn before a Commissioner of Oaths without specifying of what kind.
In this view of the matter the affidavit sworn before the District Clerk of Court, who undoubtedly is a Commissioner of Oaths can only be excluded by taking an extreme and technical view which, in our ,opinion, is not justified.
The appeal must therefore succeed on this short ground and it is not necessary to discuss whether the rule is mandatory or directory for, in any event, its requirements have been met.
The appeal is allowed but as the appellant had earlier conceded the point on which the appeal succeeds, there shall be no order about costs.
The case will now go back to Tribunal for decision on merits.
Appeal allowed.

summary:
An election petition was filed by the appellant against the first respondent challenging his election on May 4, 1963 to the Madhya Pradesh Legislative Assembly.
A number of allegations including those of corrupt practice were made against the first respondent in the petition.
The affidavit filed in support of the allegations of corrupt practice as required by Rule 94A of the Conduct of Election Rules, 1961, was sworn by the petitioner before the Clerk of Court in the District Court of Jabalpur.
The first respondent in his objections before the Election Tribunal raised the question whether the affidavit under Rule 94A was sworn before a proper authority.
The Election Tribunal accepted the objection but allowed the appellant to file a second affidavit sworn before a proper authority.
The orders of the Tribunal were challenged by the first respondent before the High Court under article 226 and article 227 of the Constitution and the High Court, holding that the fresh affidavit could not be called and that there was no proper affidavit, quashed the orders of the Tribunal and directed the Tribunal to pass an order according to law.
The appellant appealed to this Court on certificate of fitness granted by the High Court.
Although the appellant had conceded before the High Court that his first affidavit was not proper he was allowed to withdraw his concession in this Court.
It was contended on behalf of the appellant that the clerk of Court before whom his first affidavit bad been sworn had been duly appointed ex officio Commissioner of Oaths under section 139(c) of the Code of Civil Procedure and an affidavit sworn before him complied with r. 94A.
The respondent however contended that a Commissioner of Oaths appointed under section 139(c) was for the purpose of affidavits under the Civil Procedure Code only, just as a Commissioner appointed under section 539 of the Criminal Procedure Code could swear affidavit under that Code only.
HELD : There is no analogy between an affidavit sworn under section 539 Cr. P. C. and the affidavit sworn here.
An affidavit sworn by a district Clerk of Court may not be good for the purpose of the Code of Criminal Procedure and vice versa but that is because the restriction is to be formed in section 139 of the one Code and section 539 of the other.
Rule 94A makes no such condition and makes receivable an affidavit before a Commissioner of Oaths without specifying of what kind.
In this view of the matter the affidavit sworn before the District Clerk of Court who undoubtedly was a Commissioner of Oath could only be excluded by taking an extreme and technical view which was not justified.
[484 B D]


judgement:
Appeal No. 616 of 1963.
Appeal from the judgment and order dated September 21, 1961 of the Bombay High Court (Nagpur Bench) at Nagpur in Special Civil Application No. 2 of 1961.
section G. Patwardhan, G. L. Sanghi, J. B. Dadabhanji, O. C. Mathur and Ravinder Narain, for the appellant.
A. G. Ratnaparkhi, for the respondents.
The Judgment of the Court was delivered by Shah, J.
The first respondent Tukaram was a protected lessee within the meaning of that expression in the Berar Regulation of Agricultural Leases Act 24 of 1951 hereinafter called "the Berar Act" in respect of certain land at Monza Karwand in the Vidarbha Region (now in the State of Maharashtra).
The appellant who is the owner of the land served a notice under section 9(1) of the Berar Act terminating the tenancy on the ground that he required the land for personal cultivation, and submitted an application to the Revenue Officer under section 8(1)(g) of the Berar Act for an order determining the tenancy.
The Revenue Officer determined the tenancy by order dated July 2, 1957 and made it effective from April 1, 1958.
In the meantime the Governor of the State of Bombay (the Vidarbha region having been incorporated within the State of Bombay by the ) issued Ordinance 4 of 1957 which was later replaced by Act 9 of 1958 known as the Bombay Vidarbha Region Agricultural Tenants (Prosection from Eviction and Amendment of Tenancy Laws) Act, 1957.
By section 3 of Act 9 of 1958 a ban was imposed against eviction of tenants, and by section 4 all proceedings pending at the date of the commencement of the Act, or which may be instituted during the period the Act remained in force, for termination of any tenancy and for eviction of tenants were to be stayed on certain conditions set out in that section.
Bombay Act 9 of 1958 and the Berar Act 24 of 1951 were repealed by the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 99 of 1958, which may hereinafter be referred to as "the Tenancy Act".
The appellant applied on May 15, 1958 to the Naib Tahsildar, Chikhli for an order for "restoration of possession" of the land.
By order dated August 2, 1960 the Naib Tahsildar ordered "restoration of possession of the land" to the appellant.
597 In appeal the Sub Divisional Officer, Buldana set aside the order of the Naib Tahsildar because in his view the application was not maintainable in that the appellant had failed to comply with the requirements of section 38 of the Tenancy Act.
The Revenue Tribunal confirmed the order of the Sub Divisional Officer.
The appellant then moved the High Court of Judicature at Bombay praying for a writ or direction quashing the order of the Sub Divisional Officer, Buldana and of the Revenue Tribunal and for an order for restoration of possession of the land in pursuance of the order of Naib Tahsildar.
The High Court set aside the order of the Naib Tahsildar, the Sub Divisional Officer and the Revenue Tribunal and remanded the case to the Tahsildar for dealing with the application made by the appellant in the light of the directions given in the judgment.
The appellant appeals to this Court, with certificate under article 133 (1)(c) of the Constitution ranted by the High Court.
The contention urged on behalf of the appellant is that the High Court should have restored the order passed by the Naib Tahsildar and should not have reopened the inquiry as directed in its judgment.
It is necessary in the first instance to make a brief survey of the diverse statutory provisions in their relation to the progress of the dispute, which have a bearing on the question which falls to be determined.
The land was originally in the Vidharbha region which before the Bombay Reorganisation, Act, 1956 was a part of the State of Madhya Pradesh, and the tenancy of the land was governed by the Berar Act.
The first respondent was a protected lessee in respect of the land under section 3 of the Berar Act.
Section 8 of the Act imposed restrictions.
on termination of protected leases.
It was provided that notwithstanding any agreement, usage, decree or order of a court of law, the lease of any land held by a protected lessee shall not be terminated except under orders of a Revenue Officer made on any of the grounds contained therein.
Even if the landlord desired to obtain possession of the land for bona fide personal cultivation, he had to obtain an order in that behalf under section 8(1)(g).
Section 9 enabled the landlord to terminate the lease of a protected lessee if he required the land for personal cultivation by giving notice of the prescribed duration and setting out the reasons for determination of the tenancy.
A tenant served with the notice under sub section
(1) could under sub section
(3) apply to the Revenue Officer for a declaration that the notice shall have no effect or for permission to give up some other land of the same landholder in lieu of the land mentioned in the notice.
Sub sections (4), (5), (6), (7) and (8) dealt with the proce 598 dure and powers of the Revenue Officer.
The landlord had, after serving a notice under section 9 (1), to obtain an order under section 8 (1) (g) that possession was required by him bonafide for personal cultivation.
Section 1 9 of the Berar Act prescribed the procedure for ejectment of a protected lessee.
Sub section (1) provided: " A landholder may apply to the Revenue Officer to eject a protected lessee against whom an order for the termination of the lease has been passed under sections 8 or 9." Sub section (2) enabled a tenant dispossessed of land otherwise than in accordance with the provisions of the Act to apply to the Revenue Officer for restoration of the possession.
By sub section
(3) it was provided : "On receipt of an application under sub section (1) or (2), the Revenue Officer may, after making such summary enquiry as he deems fit, pass an order for restoring possession of the land to the landholder or the protected lessee as the case may be and may take such steps as may be necessary to give effect to his order." The appellant had obtained from the Revenue Officer concerned an order tinder section 8 ( 1) (g) determining the tenancy effective from April 1, 1958.
But before that date Ordinance 4 of 1957 was promulgated.
This Ordinance was later replaced by Bombay Act 9 of 1958.
By section 4 of Bombay Act 9 of 1958 all proceedings either pending at the date of commencement of the Act or which may be instituted (during the period the Act remained in force) for termination of the tenancies were Stayed.
The Tenancy Act (Bombay Act 99 of 1958) which was brought into force on December 30, 1958 repealed Bombay Act 9 of 1958 and the Berar Act and made diverse provisions with regard to protection of tenants.
By section 9 of the Tenancy Act it was provided that no tenancy of any land shall be terminated merely on the round that the period fixed for its duration whether by agreement or otherwise had expired, and by section 19 it was provided that notwithstanding any agreement, usage, decree or order of a court of law, the tenancy of any land held by a tenant shall not be terminated unless certain conditions specified therein were fulfilled.
Section 36 of the Tenancy Act set up the procedure to be followed, inter alia, for obtaining possession from a tenant after determination of the tenancy, and sub section
(2) enacted that no landlord shall obtain possession of any ]an(], dwelling house 599 or site used for any allied pursuit held by a tenant except under an order of the Tahsildar.
By sub section
(3) it was provided that on receipt of an application under sub section
(1) the Tahsildar shall, after holding an inquiry, pass such order thereon as he deems fit provided that where an application under sub section
(2) is made by a landlord in pursuance of the right conferred on him under section 38, the Tahsildar may first decide as preliminary issue, whether the conditions specified in cls.
(c) and (d) of sub section
(3), and cls.
(b), (c) and (d) of sub section
(4) of that section are satisfied.
That takes us to section 38.
By the first sub section, as it was originally enacted, it was provided : " Notwithstanding anything contained in section 9 or 19 but subject to the provisions of sub sections (2) to (5), a landlord may after giving to the tenant one year 's notice in writing at any time within two years from the commencement of this Act and making an application for possession under sub section (2) of section 36, terminate the tenancy of the land held by a tenant other than an occupancy tenant if he bona fide requires the land for cultivating it personally :" (Amendment of this sub section by Maharashtra Act 5 of 1961 is not material for the purpose of this appeal.) By sub section
(3) it was provided that the right of a landlord to terminate a tenancy under sub section
(1) shall be subject to the conditions contained in cls.
(a) to (e) (which need not, for the purpose of this appeal, be set out).
Sub section (4) imposed on the right of the landlord certain restrictions in terminating the tenancy.
A landlord may not terminate a tenancy (a) so as to reduce the area with the tenant below a certain limit, or (b) contravene the provisions of the Bombay Prevention of Fragmentation Act, or (c) where the tenant is a member of a co operative farming society, or (d) where the tenant is a co operative farming society.
Sub section (4A) dealt with the special case of a member of armed forces ceasing to be a member of the serving force.
Sub sections (5), (6) and (7) made certain incidental provisions.
By sub section
(1) of section 132, amongst others, the Berar Act and Bombay Act 9 of 1958 were repealed.
By sub section
(2) it was provided that nothing in sub section
(1) shall, save as expressly provided in the Act, affect or be deemed to affect (i) any right, title, interest, obligation or liability already acquired, accrued before the commencement of the Act or (ii) any legal proceeding or remedy in respect of any, such right, title, interest, obligation or liability or anything done or suffered before the commencement of the Act, and any such 7Sup./65 10 600 proceedings shall be instituted, continued and disposed of, as if Act 99 of 1958 had not been passed.
Sub section (3) provided : "Notwithstanding anything contained in sub section (1) (a) all proceedings for the termination of the tenancy and ejectment of a tenant or for the recovery or restoration of the possession of the land under the provisions of the enactments so repealed, pending on the date of the commencement of this Act before a Revenue Officer or in appeal or revision before any appellate or revising authority shall be deemed to have been instituted and pending before the corresponding authority under this Act and shall be disposed of in accordance with the provisions of this Act, and (b). . . .
As from December 30, 1958 the Berar Act ceased to be in operation.
But by sub section
(2) of section 132 any right, title, interest, obligation or liability already acquired before the commencement of the Tenancy Act remained enforceable and any legal proceedings in respect of such right, title, interest, obligation or liability could be instituted, continued and disposed of as if Bombay Act 99 of 1958 had not been passed.
But to this reservation an exception was made by sub section
(3) that a proceeding for termination of tenancy and ejectment of the tenant or for recovery or restoration of possession of the land under any repealed provisions, pending on the date of the commencement of Act 99 of 1958 before a Revenue Officer.
was to be deemed to have been instituted and pending before the corresponding authority under the Tenancy Act and was to be disposed of in accordance with the provisions of that Act.
Therefore when a proceeding was pending for termination 'of the tenancy and ejectment of a tenant the proceeding had to be disposed of in accordance with the provisions of the Tenancy Act, notwithstanding anything contained in sub section
If the expression "proceedings pending on the date of commencement of this Act" in section 132(3)(a) be literally interpreted, a somewhat anomalous situation may result.
An application under section 19 of the Berar Act pursuant to an order under sections 8 and 9, instituted before the Tenancy Act was enacted, will have to be disposed of in accordance with the provisions of the Tenancy Act, but if no proceeding under section 19 be commenced the proceeding would not be governed in terms by sub section
(3) and would by the operation of sub section
(2) be instituted and continued as if the Tenancy Act was not passed.
This problem engaged 601 the attention of the Bombay High Court in Jayantraj Kanakmal Zambad and Another vs Hari Dagdu and Others(1), in which the facts were closely parallel to the facts in the present case.
An order determining the lease under sections 8 & 9 of the Berar Act was obtained by the landlord before the Tenancy Act was enacted, and at a time when Bombay Act 9 of 1958 was in force, and proceedings were started by the landlord for obtaining possession from the tenant, after the Tenancy Act was brought into force.
The High Court held that the application by the landlord for possession against the tenant whose tenancy was determined by an order under the Berar Act has, if instituted after the Tenancy Act was brought into force, to be decided according to the provi sions of the latter Act by virtue of section 132(3) and not under the Berar Act, and that an order for termination of the lease under section 8 does not come to an end until an order is made under sub s.(3) of section 19.
The Court therefore in that case avoided the anomaly arising from the words of sub section (3) by holding that an order made under section 8 or under section 9 of the Berar Act relating to termination of a lease does not terminate the proceeding, and it comes to an end when an order under section 19 of the Act is made.
The High Court in the judgment under appeal, following the decision in Jayantroj Kanakmal Zambad 's case(1) held that the application filed by the appellant purporting to be under section 36(7) of the Tenancy Act must be regarded as an application under section 19 of the Berar Act and therefore be deemed to 'be a continuation of the application under sections 8 & 9 of the Berar Act.
which was pending at the date when the Tenancy Act was brought into force, and to such an application section 38 (1) did not apply, but by virtue of sub section
(3) cl.
(a) of section 132 the application had to be disposed of in accordance with the provisions of the Tenancy Act, thereby making the provisions of section 38(3) and section 38(4) applicable thereto.
Mr. Patwardhan for the appellant has, for the purpose of this appeal, not sought to canvass the correctness of the view of the judgment in Jayantraj Kanakmal Zambad 's case, but has submitted that the High Court has not correctly interpreted section 132(3) of the Tenancy Act.
The appellant had acquired a right to obtain possession of the land on determination made by the Revenue Officer by order dated July 2, 1957 and a legal proceeding in respect thereof could be instituted or continued by virtue of sub section
(2) of section 132 as if the Tenancy Act had not been passed.
The exception made (1) I.L.R. F.B. 602 by sub section
(3) of section 132 in respect of proceedings for termination of the tenancy and ejectment of a tenant which are pending on the date of the commencement of the Tenancy Act is limited in its content.
Proceedings which are pending are to be deemed to have been instituted and pending before the corresponding authority under the Act and must be disposed of in accordance with the provisions of the Tenancy Act.
By the use of the expression " shall be disposed of in accordance with the provisions of this Act" apparently the Legislature intended to attract the procedural provisions of the Tenancy Act, and not the conditions precedent to the institution of fresh proceedings.
To hold otherwise would be to make a large inroad upon sub section
(2) of section 132 which made the right, title or interest already acquired by virtue of any previous order passed by competent authority unenforceable, even though it was expressly declared enforceable as if the Tenancy Act had not been passed.
The High Court was, in our judgment, right in holding that the application filed by the appellant for obtaining an order for possession against the first respondent must be treated as one under section 19 of the Berar Act, and must be tried before the corresponding authority.
Being a pending proceeding in respect of a right acquired before the Act, it had to be continued and disposed of as if the Tenancy Act had not been passed [sub section
(2)], subject to the reservation in respect of two matters relating to the competence of the officers to try the proceeding and to the procedure in respect of the trial.
The appellant had obtained an order determining the tenancy of the first respondent.
That order had to be enforced in the manner provided by section 19(1) i.e. the Revenue Officer had to make such summary inquiry as be deemed fit, and had to pass an order for restoring possession of the land to the landholder and to take such steps as may be necessary to give effect to his order.
Since the repeal of the Berar Act the proceeding pending before the Revenue Officer would stand transferred to the Tahsildar.
The Tahsildar was bound to give effect to the rights already acquired before the Tenancy Act was enacted, and in giving effect to those rights he had to follow the procedure prescribed by the Tenancy Act.
Between sections 19(3) of the Berar Act and 36(3) of the Tenancy Act in the matter of procedure there does not appear to us any substantial difference.
Under the Berar Act a summary inquiry has to be made by the Revenue Officer, whereas under the Tenancy Act the Tahsildar must hold an inquiry and pass such order (consistently with the rights of the parties) as he deems fit.
But to the trial of the application for enforcement of the right acquired under the 603 Berar Act, section 38 of the Tenancy Act could not be attracted.
Section 38 authorises the landlord to obtain possession of the land from a tenant, if the landlord bona fide required the land for cultivating it personally.
In order to effectuate that right, the landlord must give a notice of one year 's duration in writing and make an application for possession under section 36 within the prescribed period.
The section is in terms prospective and does not purport to affect rights acquired before the date on which the Tenancy Act was brought into force.
The High Court was therefore also right in observing "The notice referred to in sub section
(1) of section 38 could not obviously have been given in respect of proceedings which were pending or which are deemed to have been pending on the date of the commencement of this Act.
It does not also appear that it was the intention of the Legislature that such proceedings should be kept pending for a further period until a fresh notice as required by sub section
(1) of section 38 had been given.
For the same reasons, the proviso to sub section
(2) of section 36 will not apply in such cases.
" But we are unable to agree with the High Court that sub sections
(3) and (4) of section 38 apply to an application filed or deemed to be filed under section 19 of the Berar Act.
The High Court appears to be of the view that by the use of the expression "shall be disposed of in accordance with the provisions of this Act" it was intended that "all the provisions of the Act, which would apply to an application made under sub section
(2) of section 36, would also apply to application which are deemed to have been made under this section", and therefore it followed that sub sections
(3) and (4) of section 38 applied to all applications for obtaining possession of the land for personal cultivation made under section 19 of the Berar Act which were pending or which were deemed to have been pending on the date of the commencement of the Tenancy Act.
It may be noticed that sub section
(3) of section 38 in terms makes the right of the landlord to terminate a tenancy under sub section
(1), subject to conditions mentioned therein.
If there be no determination of the tenancy by notice in writing under sub section (1), sub section
(3) could have no application.
The words of sub section
(4) are undoubtedly general.
But the setting in which the sub section occurs clearly indicates that it is intended to apply to tenancies determined under section 38(1).
Large protection which was granted by section 19 of the Tenancy Act 604 has been withdrawn from tenants who may be regarded as con tumacious.
By section 38(1) a landlord desiring to cultivate the land personally is given the right to terminate the tenancy, but the right is made subject to the conditions prescribed in sub section
(3) and the legislature has by sub section
(4) (a) sought to make an equitable adjustments between the claims of the landlord and the tenant.
If sub section
(4) be read as imposing a restriction on the determination of all tenancies, it would imply grant of projection to a contumacious tenant as well.
The Legislature could not have intended that in making equitable adjustments between the rights of landlords and tenants contumacious tenants who have disentitled themselves otherwise to the protection of section 19 should still be benefited.
Again if sub section
(4) be read as applying to determination of every agricultural tenancy, its proper place would have been in sub section
(3) of section 36, and the proviso thereto would riot have been drafted in the manner it is found in the Act.
By cls.
(c) & (d) of sub section
(4) tenants who are cooperative societies or members of cooperative societies are not liable to be evicted, and if the opening words of sub section
(4) are intended to be read as applicable to termination of all tenancies, whatever the reason, we would have expected some indication to that effect in section 19 of the tenancy Act.
Again inclusion of sub sections (2) to (5) in the non obstante clause in sub section
(1) supports the view that the expression "In no case a tenancy shall be terminated" being.
part, of an integrated scheme means that a tenancy determined "or reasons and in the manner set out in sub section
(1) of section 38 must be determined consistently with sub section
(4), but where the determination of the tenancy is not under sub section
(1) of section 38, sub section
(4) has no application.
The application made by the appellant is undoubtedly one for ejectment of the tenant and for recovery of possession.
The Naib Tahsildar was competent to entertain the application.
It is true that the application was orginally filed under sections 8 & 9 of the Berar Act on the ground that the, landlord required the land bona fide for his personal cultivation, but once an order was passed under section 8 (1) (g) by the Revenue Officer, the only inquiry contemplated to be made on an application under section 19 was a summary inquiry before an order for possession was made in favour of the landlord.
At that stage, there was no scope for the application of the conditions and restrictions prescribed by sub sections
(3) & (4) of section 38, for, in our view, those provisions do not apply to proceedings to enforce rights acquired when the Berar Act was in operation.
605 We therefore modify the order passed by the High Court and direct that the orders passed by the Tahsildar and the Revenue Tribunal will be set aside and the matter will be remanded to the Tahsildar for dealing with the application on the footing that it is an application to enforce the right conferred by sections 8 & 9 of the Berar Regulation of Agricultural Leases Act, 1951 and the provisions of section 38 of the Bombay Act 99 of 1958 have no application thereto.
There will be no order as to costs in this appeal.
Order modified and case remanded.

dataset_name: IN-Abs

summary:
The land in dispute as in the Vidarbha region originally forming part of the State of Madhya Pradesh, to which the Berar Regulation of Agricultural Leases Act, 1951 (Berar Act) applied.
Under the Act, a landlord requiring land for personal cultivation, could terminate a lease by issuing a notice to the lessee under section 9, and obtaining an order in that behalf from the Revenue Officer under section 8(1)(g) and then, applying to the Revenue Officer for ejectment of the lessee.
On the landlord 's application, the Officer, after making such summary enquiry as he deems fit, may pass an order restoring possession to the landlord.
After the merger of the Vidarbha region with the State of Bombay, the Bombay Tenancy and Agricultural Lands (Vidarbha region and Kutch Area) Act (Tenancy Act) was passed on December 30, 1958 repealing, the Berar Act.
Section 36 of the Tenancy Act set up a procedure for obtaining possession from a tenant and provided that the landlord may apply to the Tahsildar who, after holding an enquiry, may pass such order as he deems fit.
Section 38(1) authorised the landlord to obtain possession of land from a tenant, if the landlord, bona fide required the land for personal cultivation and in order to efecetuate that right, the landlord must give a notice of one year 's duration in writing and make an application for possession under section 36, within the prescribed period.
By section 38(3) it was provided that the right of a landlord to terminate a tenancy under section 38(1) shall be subject to the conditions contained in cls.
(a) to (e) of sub section
(3) and sub ,section (4) imposed certain restrictions on the right of the landlord to terminate a tenancy.
By section 132(2) any right already acquired before 30th December 1958 remained enforceable.
and any legal proceeding in respect of such right, could be instituted, continued and disposed of as if the Tenancy Act had not been passed.
But to this reservation an exception was made by section 132(3) that a proceeding pending on 30th December 1958, was to be deemed to have been instituted and pending before the corresponding authority tinder the Tenancy Act, and was to be disposed of in accordance with its provisions.
The appellant had obtained from the Revenue Officer concerned an order, determining the tenancy of the respondent under section 8(1)(g) of the Berar Act.
effective from 1st April 1958.
On 15th May 1959 after the Tenancy Act had come into force the appellant applied to the Tahsildar under section 36 for an order for restoration of possession.
The Tahsildar ordered restoration of possession.
but on appeal the Sub Divisional Officer set aside the order on the ground that the appellant failed to comply with the requirements of section 38 of the Tenancy Act.
and the Revenue Tribunal confirmed the order of the Sub Divisional Officer.
In a petition for the issue of a writ, the High Court set aside all the orders of the subordinate tribunals and remanded the case to the Tahsildar for dealing with the application in the light of directions given in its judgment.
The High Court 595 held that though section 36(1) of the Tenancy Act did not apply to the appellant 's application, by vitrue of section 132(3) the provision of section 38(3) and (4) were applicable to it.
In his appeal to the Supreme Court, the appellant contended that the High Court had not correctly interpreted section 132(3) and that it should have restored the order passed by the Tahsildar Direct should not have reopened the enquiry.
HELD : The Tahsildar was competent to entertain the appellant 's application for recovery of possession.
Once an order was passed under section 8(1)(g) of the Berar Act by the Revenue Officer, the only enquiry contemplated to be made on an application under section 19 of the Act, was a summary enquiry before an order for possession was made in favour of the landlord.
At that stage there was no scope for the application of the conditions and restrictions prescribed by section 38(3) and (4), for those provisions do not apply to proceedings to enforce rights acquired when the Berar Act was in operation.
Therefore the Tahsildar should deal with the application on the footing that it was an application to enforce right conferred by sections 8 and of the Berar Act and that the provisions of section 38 of the Tenancy Act have no application thereto.
[604 F H; 605 A B] The appellant had acquired a right to obtain possession of the land on the determination made by the Revenue Officer under section 8(1)(g) of the Berar Act.
An order made under section 8 or section 9 of the Berar Act relating to termination of a lease does not terminate the proceeding it comes to an end only when an order under section 19 of the Act is made.
Therefore, the application filed by the appellant purporting to be under section 36(2) of the Tenancy Act must be regarded its an application under section 19 of the Berar Act, and deemed to be a Continuation of the application under sections 8 and 9 of the Berar Act and pending at the date when the Tenancy Act was brought into force.
Since the repeal of the Berar Act the proceeding would stand transferred to the Tahsildar, who was bound to give effect to the rights already acquired before the Tenancy Act was enacted under section 132(2), and in doing so, under section 132(3) he bad to follow the procedure prescribed by the Tenancy Act, But the exception made in section 132(3) is limited in its content.
By the use of the expression 'shall be disposed of in accordance with the provisions of this Act '.
the legislature intended to attract the procedural provisions of the Tenancy Act and not the conditions precedent to the institution of fresh proceedings.
Therefore, a pending proceeding in respect of a right acquired before the Act, had to be continued and disposed of as if the Tenancy Act had not been passed, subject to the reservation in respect of two matters relating to the competence of the officers to try the proceedings and to the procedure in respect of the trial.
Between section 19(3) of the Berar Act and section 36(3) of the Tenancy Act in the matter of procedure there is no substantial difference.
But to the trial of the application for enforcement of the right acquired trader the Berar Act, section 38 of the Tenancy Act could not be attracted.
Section 38(1) is in terms prospective and does not purport to affect rights acquired before the Tenancy Act was brought into force.
Section 38(3) and (4) do not apply to an application filed or deemed to be filed under section 19 of the Berar Act.
Section 38(3) in term makes the right of the landlord to terminate a tenancy under sub section
subject to conditions mentioned therein.
The words of section 38(4).
are undoubtedly general, but the setting in which the sub section occurs indicating that it is also intended to apply to tenancies determined under section 38(1).
Therefore where the determination of the tenancy is not under 38(1), sub sections
(3) and (4) have no application.
D, E, 60 A, B. F. G H, 603 B, E, F H] 596 Jayantraj Kanakanial Zambad vs Hari Dagdu, I.L.R. , approved.


judgement:
Appeals Nos. 601 and 602 of 1963.
Appeals from the judgment and decree dated December 9, 1958, of the Allahabad High Court in First Appeals Nos.
373 of 1945 and 92 of 1946.
582 Civil Appeal No. 603 of 1963.
Appeal by special leave from the judgment and decree dated December 9, 1958 of the Allahabad High Court in First Appeal No. 374 of 1945.
N. D. Karkhanis and R. N. Sachthey, for the appellant (in all the three appeals).
G. section Pathak, Rameswar Nath, section N. Andley and P. I. Vohra, for the respondents (in all the three appeals).
Wanchoo, J. These three appeals raise common questions and will be dealt with together.
They arise out of two suits filed against the Government of India claiming damages for loss of goods which were destroyed by fire on the railway platform at Morar Road Railway Station.
One of the suits was filed by Birla Cotton Factory Limited, now represented by the West Punjab Factories Limited (hereinafter referred to as the Factory).
It related to six consignments of cotton bales booked from six stations on various dates in February and March 1943 by the Factory to Morar Road Railway Station.
In five of the cases, the consignment was con Signed to J. C. Mills while in one it was consigned to self.
The consignments arrived at Morar Road Railway Station or.
various dates in March Delivery was given of a part of one consignment on March 7, 1943 while the remaining goods were still in the custody and possession of the railway.
On March 8, 1943, a fire broke out at the Morar Road Railway Station and these goods were involved in the fire and severe damage was caused to them.
It is not necessary to refer to the details of the damage for that matter is not in dispute between the parties.
The case of the Factory was that the damage and loss was caused while the goods were in the custody and control of the railway administration and it was due to misconduct, negligence and carelessness on the part of the railway administration.
Consequently, the suit was filed for Rs. 77,000 and odd along with interest upto the date of the suit and interest pendente lite and future interest.
In the other suit there was one consignment of 45 bales of cotton yarn.
This consignment was booked from Belangunj to Morar Road Railway Station on February 22, 1943 and the railway receipt relating to this consignment was endorsed in favour of Ishwara Nand Sarswat who filed the suit.
This consignment arrived at 583 Morar Road Railway Station on February 23, 1943.
Ishwara Nand Sarswat went to take delivery of this consignment on March 10, 1943, his case being that be had received the railway receipt on March 9, 1943.
He then came to know that the consignment was involved in a fire which had taken place on March 8, 1943 and severe damage had been done to the consignment.
Ishwara Nand Sarswat therefore filed the suit on the ground that damage and loss was due entirely to the gross negligence of the railway administration.
He claimed Rs. 72,000,/ and odd as damages and also claimed interest upto the date of the suit and pendente lite and future interest.
The suits were resisted by the Government of India.
In the first suit by the Factory, it was pleaded that the Factory could not sue as , the goods in five of the receipts had been consigned to the J. C. Mills; secondly, it was pleaded that delivery had been given of atleast five of the consignments to the J.C. Mills before the fire broke out and the railway administration was not therefore responsible for the damage done by the fire, for it was the fault of the J. C. Mills not to have removed the goods immediately after the delivery; thirdly, it was pleaded that damages should have been granted at the rate of Rs. 38/ per bale, which was the price contracted for between the buyer and the seller and not at the market rate on the date of the damage as was done by the courts below , fourthly, it was pleaded that no interest should have been allowed for the period before the suit; and lastly, it was pleaded that the conduct of the railway administration was not negligent and there fore the railway was not bound to make good the loss.
On these pleas, five main issues relating to each of them were framed by the trial court.
The trial court found that the Factory could maintain the suit and decided accordingly.
It also found that in the case of five consignments by the Factory, delivery had been given before the fire broke Out and therefore the railway was not responsible; in the case of the sixth consignment it held that there was no proof that delivery bad been given before the fire broke out and that the railway would be responsible if negligence was proved.
On the quantum of damages, the trial court held that the damages had to be calculated at the market price on the date of the fire and not at the contract price between the buyer and seller.
On the question of interest, the trial court held that interest before the date of the suit should be allowed on equitable , rounds.
Finally, on the question of negligence, the trial court held that there was negligence by the railway and it was therefore liable for loss and damage caused by the fire which broke out on L7Sup./65 9 584 March 8, 1943.
As however, the trial court had held that delivery had been given in the case of five consignments, though the goods had not been removed, the railway was not responsible for the loss.
It therefore decreed the suit in part with respect to the sixth consignment about which it had found that there had been no delivery.
The same issues were raised in the suit by Ishwara Nand Saraswat.
But there was one additional issue in that suit based on the contention of the Government of India that it had given notice to Ishwara Nand that the consignment had arrived on February 23, 1943, Ishwara Nand however did not come to remove the goods till March 8, 1943 when the fire broke out; therefore it was urged that the liability of the railway administration as carrier had ceased after the lapse of reasonable time after arrival of the consignment at the railway station.
This reasonable time could not be beyond three days in any case and therefore the railway administration was not bound to make good the loss even if it had been occasioned on account of the negligence of the administration.
As Ishwara Nand should have removed the consignment within three days of February 23, it was his failure to do so which resulted in the damage and loss.
The issues which were common to this suit and the suit by the Factory were decided on the same lines by the trial court as in the suit by the Factory.
On the further issue which arose in this suit as to the delay in the removal of goods after notice to Ishwara Nand, the trial court held after reference to certain rules made by the railway administration that even if the railway administration 's responsibility as carrier had ceased after the lapse of reasonable time, it was still liable as a bailee either as a warehouseman or as a gratuitous bailee.
It therefore gave a decree for Rs. 76,000 and odd to Ishwara Nand.
Then followed three appeals to the High Court two in the suit by the Factory and one in the suit of Ishwara Nand.
The appeal in the suit by Ishwara Nand was by the Government of India; one appeal in the suit by the Factory was by the factory with respect to that part of the claim which had been dismissed, and the case of the Factory was that in fact no delivery had been made to it and it was entitled to the entire sum claimed as damages.
The other appeal was by the Government of India with respect to the amount decreed by the trial court and it raised all the contentions which had been raised before the trial court.
The High Court dealt with the three appeals together.
In all appeals the High Court confirmed the finding of the trial court that there had been negligence on the part of the railway which 585 resulted in damage to the goods.
On the question whether the suit could be maintained by the plaintiffs, the High Court affirmed the finding of the trial court that both the suits were maintainable.
The High Court also affirmed the finding of the trial court with respect to the rate at which damages should be calculated and on the question of interest before the date of the suit.
Further in the suit by Ishwara Nand, the High Court held that even if the railway administration ceased to be responsible as a carrier after a reasonable time had elapsed after the arrival of the goods at Morar Road Railway Station, it was still responsible as a warehouseman.
The appeal therefore of the Government of India in Ishwara Nand 's suit was dismissed.
On the question of delivery in the Factory '& suit the High Court disagreed with the finding of the trial court that there had been delivery of five consignments.
It held that there was no effective delivery even of these five consignments.
In consequence, the appeal of the Factory was allowed while that of the Government of India was dismissed.
Then followed applications to the High Court for leave to appeal to this Court in the Factory 's suit. 'Me High Court granted the certificate as the judgment was one of variance and the amount involved was over rupees twenty thousand.
However, in the suit of Ishwara Nand, the High Court refused to grant a certificate as the judgment was one of affirmance and no substantial question of law arose.
Thereupon the Government of India applied to this Court for special leave in Ishwara Nand 's suit and that was granted.
The three appeals have been consolidated in this Court for as will be seen from what we have said above, the principal points in volved in them are common.
Learned counsel for the appellant has not and could not challenge the concurrent finding of the trial court and of the High Court that the fire which caused the damage was due to the negligence of the railway administration.
But the learned counsel has pressed the other four points which were raised in the courts below.
He contends (i) that the suits as filed were not maintainable, (ii) that the High Court was in error in reversing the finding of the trial court that the delivery had been given with respect to five of the consignments in the Factory 's suit, (iii) that damages should have been awarded at Rs. 38/ per bale which was the contract price between the buyer and seller and not at the market price on the date on which the damage took place, and (iv) that interest could not be awarded for the period before the suit on the amount of damages decreed.
586 Re.
The contention of the appellant with respect to five of the consignments in the suit of the Factory was that as the consignee of the five railway receipts was the J.C. Mills, the consignor (namely, the Factory) could not bring the suit with respect thereto and only the J.C. Mills could maintain the suit.
Ordinarily, it is the consignor who can sue if there is damage to the consignment, for the contract of carriage is between the consignor and the railway administration.
Where the property in the goods carried has passed from the consignor to some one else, that other person may be able to sue.
Whether in such a case the consignor can also sue does not arise on the facts in the present case and as to that we say nothing.
The argument on behalf of the appellant is that the railway receipt is a document of title to goods [see section 2(4)] of the Indian Sale of Goods Act, No. 3 of 1930), and as such it is the consignee who has title to the goods where the consignor and consignee are different.
It is true that a railway receipt is a document of title to goods covered by it, but from that alone it does not follow, where the consignor and consignee are different, that the consignee is necessarily the owner of goods and the consignor in such circumstances can never be the owner of the goods.
The mere fact that the consignee is different from the consignor does not necessarily pass title to the goods from the consignor to the consignee, and the question whether title to goods has passed to the consignee will have to be decided on other evidence.
It is quite possible for the consignor to retain title in the goods, himself while the consignment is booked in the name of another person.
Take a simple case where a consignment is booked by the owner and the consignee is the owner 's servant, the intention being that the servant will take delivery at the place of destination.
In such a case the title to the goods would not pass from the owner to the consignee and would still remain.
with the owner, the consignee being merely a servant or agent of the owner or consignor for purposes of taking delivery at the place of destination.
It cannot therefore be accepted simply because a consignee in a railway receipt is different from a consignor that the consignee must be held to be the owner of the goods and he alone can sue and not the consignor.
As we have said already, ordinarily, the consignor is the person who has contracted with the railway for the carriage of goods and he can sue; and it is only where title to the goods has passed that the consignee may be able to sue.
Whether title to goods has passed from the consignor to the consignee will depend upon the facts of each case and so we have to look at the evidence produced in this case to decide whether in the case of five con 587 signments booked to the J.C. Mills, the title to the goods had passed to the Mills before the fire broke out on March 8, 1943.
We may add that both the courts have found that title to the goods had not passed to the J. C. Mills by that date and that it was still in the consignor and therefore the Factory was entitled to sue.
We may in this connection refer briefly to the evidence on this point.
The contract between the Factory and the J. C. Mills was that delivery would be made by the seller at the godowns of the J. C. Mills.
The contract also provided that the goods would be dispatched by railway on the seller 's risk up to the point named above (namely, the godowns of the J. C. Mills).
Therefore the property in the goods would only pass to the J. C. Mills when delivery was made at the godown and till then the consignor would be the owner of the goods and the goods would be at its risk.
Ordinarily, the consignments would have been booked in the name of "self" but it seems that there was some legal difficulty in booking the consignments in the name of self and therefore the J. C. Mills agreed that the consignments might be booked in the Mills ' name as consignee; but it was made clear by the J. C. Mills that the contract would stand unaffected by this method of consignment and all risk, responsibility and liability regarding these cotton consignments would be of the Factory till they were delivered to the J. C. Mills in its godowns as already agreed upon under the contract and all losses arising from whatever cause to the cotton thus consigned would be borne by the Factory till its delivery as indicated above.
This being, the nature of the contract between the consignor and the consignee in the present case we have no hesitation in agreeing with the courts below that the property in the goods was still with the Factory when the fire broke out on March 8, 1943.
Therefore the ordinary rule that it is the consignor who can sue will prevail here because it is not proved that the consignor had parted with the property in the goods, even though the consignments were booked in the name of the J. C. Mills.
We are therefore of opinion that the suit of the Factory was in view of these circumstances maintainable.
As to the suit by Ishwara Nand, he relies on two circumstances in support of his right to maintain the suit.
In the first place, he contended that he was the owner of the goods and that was why the railway receipt was endorsed in his favour by the consignor though it was booked to "self".
In the second place, it was contended that as an endorse to a document of title he was in any case entitled to maintain the suit.
The trial court found on the evidence that it had been proved satisfactorily that Ishwara Nand 588 was the owner of the goods.
It also held that as an endorse of a document of title he was entitled to sue.
These findings of the trial court on the evidence were accepted by the High Court in these words : "It was not contended before us that the finding arrived at by the learned court below that the plaintiff had the right to sue was wrong, nor could, in view of the overwhelming evidence, such an issue be raised.
The evidence on the point has already been carefully analysed by the court below.
We accept the finding and confirm it.
It was also pointed out that Ishwara Nand was the endorsed consignee and in that capacity he had in any case a right to bring the suit.
The correctness of this statement was not challenged before us.
" Thus there are concurrent findings of the two courts below that Ishwara Nand was the owner of the goods and that was why the railway receipt was endorsed in his favour.
In these circumstances he is certainly entitled to maintain the suit.
The contention that the plaintiffs in the two suits could not maintain them.
must therefore be rejected.
The contention under this head is that five of the consignments had been delivered to the J. C. Mills before March 8, 1943 and therefore the railway was not responsible for any loss caused by the fire which broke out after the consignments had been delivered on March 6 and 7, 1943.
It was urged that it was the fault of the J. C. Mills that it did not remove the consignments from the railway station by March 7 and the liability for the loss due to fire on March 8 must remain on the J. C. Mills.
The trial court had held in favour of the appellant with respect to these five consignments.
But the High Court reversed that finding holding that there was no real delivery on March 6 and 7, though the delivery book had been signed on behalf of the J. C. Mills and the railway receipts had been handed over to the railway in token of delivery having been taken.
It was not disputed that the delivery book had been signed and the railway receipts had been delivered to the railway; but the evidence was that it was the practice at that railway station, so far as the J. C. Mills was concerned, to sign the delivery book and hand over the railway receipts and give credit vouchers in respect of the freight of the consignment even before the goods had been unloaded from wagons.
It appeared from the evidence that what used to happen was that as soon the wagons 589 arrived and they were identified as being wagons containing consignments in favour of the J. C. Mills, the consignee, namely, the J. C. Mills, used to surrender the railway receipts.
, sign the delivery book and give credit vouchers in respect of the receipt of freight due even before the goods were unloaded from wagons.
This practice was proved from the evidence of Har Prashad (D.W. 6) who was the Assistant Goods Clerk at Morar Road at the relevant time.
He was in charge of making delivery of such goods, there being no Goods Clerk there.
He admitted that signature of Ishwara Nand as agent of the J. C. Mills was taken as soon as the consignments were received and identified by Ishwara Nand without being unloaded.
He further admitted that there had been no actual delivery to Ishwara Nand of the consignments and this happened with respect to all the five consignments.
Ishwara Nand signed the delivery book in token of having received the delivery and surrendered the railway receipts though when he did so the wagons were not even unloaded.
On this evidence the High Court held that it could not be said that there was any effective delivery of the goods to the J. C. Mills through Ishwara Nand, though token delivery was made inasmuch as the delivery book had been signed and the railway receipts surrendered.
It also appears from the evidence of Har Prashad that before the goods were actually removed, Ishwara Nand used to take the permission of Har Prashad to remove them.
This shows that though there might be token delivery in the form of signing the delivery book and surrendering the railway receipts, actual delivery used to take place later and the removal of goods took place with the permission of Har Prashad.
On this state of evidence the High Court was of the view that the so called delivery by signing delivery book and sur rendering the railway receipts was no delivery at all for till then the goods had not been unloaded.
The unloading of goods is the duty of the railway and there can be no delivery by the railway till the railway has unloaded the goods.
It is also clear from the evidence that even after token delivery had been made in the manner indicated above, the consignee was not authorised to remove the goods from the wagons and that it was the railway which unloaded the wagons and it was thereafter that the consignee was permitted to remove such goods with his permission as stated by Har Prashad in his evidence.
The High Court therefore held that there was no clear evidence that delivery of goods had been made over to the consignee in these cases.
Further there was no evidence to show that the consignee could remove the goods from the wagons without further reference to the railway, on the other hand it appeared that after such token delivery permission 590 of Har Prashad was taken for actual removal of goods.
There fore, the High Court came to the conclusion that real delivery had not been made when the fire took place on March 8, for the goods were till then in wagons and the railway was the only authority entitled to unload the same.
Till they were unloaded by the railway, they must be in the custody of the railway and no delivery could be said to have taken place merely by signing the delivery book and surrendering the railway receipts.
We are of opinion that on the evidence the view taken by the High Court is correct.
Though there was a token delivery as appears from the fact that railway receipts had been surrendered and the delivery book had been signed, there was no real delivery by the railway to the consignee, for the goods had not been unloaded and were still under the control and custody of the railway and Har Prashad 's evidence is that his permission had still to be taken before the goods could be actually removed by the consignee.
The contention that the delivery had been made to the consignee before March 8, 1943 must therefore in the peculiar circumstances of this case fail.
(iii).
It is next contended that damages should have been awarded at the rate of Rs. 38/ per bale which was tile contract price between the factory and the J. C. Mills.
This contract was made in November 1942.
The contract price is in our opinion no measure of damages to be awarded in a case like the present.
It is well settled that it is the market price at the time the damage occurred which is the measure of damages to be awarded.
It is not in dispute that the trial court has calculated damages on the basis of the market price prevalent on March 8.
In these circumstances this contention must also be rejected.
The next contention is that no interest could be awarded for the period before the suit on the amount of damages decreed.
Legal position with respect to this is well settled : (see Bengal Nagpur Railway Co. Limited vs Ruttanki Ramji and Others) (1).
That decision of the Judicial Committee was relied upon by this Court in Seth Thawardas Pherumal vs The Union of India(2).
The same view was expressed by this Court in Union of India vs A. L. Rallia Ram(3).
In the absence of any usage or contract, express or implied, or of any provision of law to justify the award of interest, it is not possible to award interest by way of damages.
Also see (1) 65 I.A. 66.
(2) (3) ; 591 recent decision of this Court in Union of India vs Watkins Mayer & Company(1).
In view of these decisions no interest could be awarded for the period upto the date of the suit and the decretal amount in the two suits will have to be reduced by the amount of such interest awarded.
We now come to the additional point raised in Ishwara Nand 's suit.
It is urged that Ishwara Nand 's consignment had reached Morar Road Railway Station on February 23, 1943 and Ishwara Nand should have taken delivery within three days which is the period during which under the rules no wharfage is charged.
The responsibility of the railway is Linder section 72 of the Indian Railways Act (No. 9 of 1890) and that responsibility cannot be cut down by any rule.
It may be that the railway may not charge wharfage for three days and it is expected that a consignee would take away the goods within three days.
It is however urged that the railway is a carrier and its responsibility as a carrier must come to an end within a reasonable time after the arrival of goods at the destination, and thereafter there can be no responsibility whatsoever of the railway.
It is further urged that three days during which the railway keeps goods without charging wharfage should be taken as reasonable time when its responsibility as a carrier ends; thereafter it has no responsibility whatsoever.
Under section 7 2 of the Indian Railways Act, the responsibility of the railway administra tion for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway is, subject to the other provisions of the Act, that of a bailee under sections 151, 152 and 161 of the Indian Contract Act, (No. 9 of 1872).
This responsibility in our opinion continues until terminated in accordance with sections 55 and 56 of the Railways Act.
The railway has framed rules in this connection which lay down that unclaimed goods are kept at the railway station to which they are booked for a period of not less than one month during which time the notice prescribed under section 56 of the Railways Act is issued if the owner of the goods or person entitled thereto is known.
If delivery is not taken within this period, the unclaimed goods are sent to the unclaimed goods office where if they are not of dangerous, perishable or offensive character they are retained in the possession of the railway.
Thereafter public sales by auction can be held of unclaimed goods which remain with the railway for over six months.
This being the position under the rules so far as the application of sections 55 and 56 is concerned, it follows that even though the res ponsibility of the railway as a carrier may come to an end within (1) C. As.
43 & 44 of 1963 decided on March 10, 1965.
592 a reasonable time after the goods have reached the destinationstation, its responsibility as a warehouseman continues and that responsibility is also the same as that of a bailee.
Reference in this connection is made to Chapman vs The Great Western Railway Company(1).
In that case what had happened was that certain goods had arrived on March 24 and 25.
On the morning of March 27, a fire accidentally broke out and the goods were consumed by the fire.
The consignor then sued the railway as common carrier on the ground that liability still subsisted when the goods were destroyed.
The question in that case was whether the liability of the railways was still as common carrier, on March 27 or was that of warehousemen.
The question was of importance in English law, for a common carrier under the English law is an insurer and is liable for the loss even though not arising from any default on his part while a warehouseman was only liable where there was want of proper care.
It was held that the liability as a common carrier would come to end not immediately on the arrival of the goods at the destination but sometime must elapse between the arrival of goods and its delivery.
This interval how ever must be reasonable and it was held in that case that reasonable time had elapsed when the fire broke out on March 27 and therefore the railway 's responsibility was not that of a carrier but only as warehouseman.
The position of law in India is slightly different from that in England, for here the railway is only a bailee in the absence of any special contract and it is only when it is proved that the railway did not take such care of the goods as a man of ordinary prudence would under similar circumstance take of his own goods of the same bulk, quality and value as the goods bailed, that the railway 's responsibility arises.
A warehouseman is also a bailee and therefore the railway will continue to be a warehouseman under the bailment, even if its responsibility as a carrier after the lapse of a reasonable time after arrival of goods at the destination comes to an end.
But in both cases the responsibility in India is the same, namely, that of a bailee, and negligence has to be proved.
In view of the rules to which we have already referred it is clear that the railway 's responsibility as a warehouseman continues even if its responsibility as a carrier comes to end after the lapse of a reasonable time after the arrival of goods at the destination.
The responsibility as a warehouseman can only come to end in the manner provided by sections 55 and 56 of the Railways Act and the Rules which have been framed and to which we have already referred as to the disposal of unclaimed goods.
In the present case under the Rules the goods had to remain at Morar (1) (1880) 5Q.B.D.278.
593 Road Railway Station for a period of one month after their arrival there and Ishwara Nand came to take delivery of them on March 10 well within that period.
It may be that as he did not come within three days he has to pay wharfage or what is called demurrage in railway parlance, but the responsibility of the railway as a warehouseman certainly continued till March 10 when Ishwara Nand went to take delivery of the goods.
As it has been found that there had been negligence within the meaning of sections 151 and 152 of the Indian Contract Act, the railway would be liable to make good the loss caused by the fire.
The appeals therefore fail with this modification that the decretal amount would be reduced by the amount of interest awarded for the period before the date of each suit.
The rest of the decree will stand.
The appellant will pay the respondents ' costs one set of hearing fee.
In CA 603/63 interest will be calculated from 6 8 62 in accordance with that order.
Appeal dismissed and decree modified.

summary:
There was a fire at a railway station in which certain goods& were destroyed.
Two suits were filed claiming damage for loss of goods by 'the said fire.
The first suit was filed by a factory which claimed to be owner of the goods as consignor.
The other suit was filed by a consignee in whose favour the relevant documents were endorsed.
The Union of India resisted both the suits.
The trial court and the High Court concurrently held that the loss was due to the negligence of the Railways.
The1 Union of India appealed to this Court.
It was contended on behalf of the appellant : (1) The suits, as filed, were not maintainable.
(2) In the first suit delivery of the goods had been made to the consignee and the High Court 's finding to the contrary was wrong.
(3) Damages should have been awarded at the contract rat .
and not the market rate (4) Interest could not be awarded for the period before the suit on the amount of damages decreed.
(5) In the second suit notice had been given to the consignee that the consignment had arrived on February 23, 1943.
The consignee did not come to remove the goods till March 8, 1943 when the fire broke out, and the liability of the railway administration ceased after the lapse of reasonable time after arrival of the consignment at the railway administration.
HELD: (i) A railway receipt is a document of title to goods covered by it, but from that alone it does not follow, where the consignor and consignee are different, that the consignee is necessarily the owner of the goods and the consignor in such circumstances can never he the owner of the goods.
It is quite possible for the consignor to retain title in the goods himself while the consignment is booked in the name of another person.
In the first of the present suits the risk remained with the consignor according to the agreement of the parties, and it had not been proved that the consignor had parted with the property in the goods.
Therefore the suit by he consignor was maintainable.
[586 D H] In the second suit the railway receipt was endorsed in the consignees favour and the courts below had concurrently found that the consignee was the owner of the goods.
There could therefore be no dispute about the maintainability of the second suit also.
[588 D] (ii) Though there was a token delivery to the consignee in the first suit as appeared from the fact that the railway receipt had been sur 581 rendered and the delivery book had been signed, there was no redelivery by the railway to the consignee.
The goods had not been unloaded and were still under the control and custody of the railway and the evidence of the Assistant Goods Clerk was that his permission had still to be taken before the goods could be actually removed by the consignee.
The contention in the first suit that the delivery had been made to the consignee before March 8, 1943 therefore, in the peculiar circumstances of the case had to fail.
[590 C D] (iii) The High Court rightly calculated the damages on the basis of the on March 8 as it is well settled that it is the market price at lest be damage occurred which is the measure of the damages to be awarded.
[590 E F] (iv) In the absence of any usage or contract, express or implied, or of any provision of law to justify the award of interest it is not possible to award interest by way of damages and therefore no interest should have been awarded in the present two suits up to the date of filing of either suit.
[591 A] Bengal Nagpur Railway Co. Ltd. vs Ruttanji Rant, & Ors. 65 I.A. 66, Seth Thawardas Pherumal vs Union of India , Union of India v, A. L. Rallia Ram; , and Union of India V. Watkins Mayer & Co. C. As.
Nos. 43 and 44 of 1963 dt.
10 3 65, relied on.
(v) Under section 72 of the Indian Railways Act, the responsibility of the railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway is, subject to the other provisions of the Act, that of a bailee under sections 151, 152 and 161 of the Indian Contract Act.
The responsibility continues until terminated in accordance with sq. 55 and 56 of the Railways Act.
[591 E] It may be that under the Rules framed by the Railways goods are kept at the railway station of destination only for one month, and that demurrage has to be paid after three days of reaching the destination.
But the responsibility of the railway is under section 72 of the Indian Railways Act and it cannot be cut down by any rule.
Even if owing to the said Rules the responsibility of the railway as a carrier ends within a reasonable time after the goods have reached their destination station, its responsibility as a warehouseman continues and that responsibility L. the same at that of a bailee.
[592 E H] Chapman vs The Great Western Railway Company, (1880)5 Q.B.D. 278, distinguished.
In the present case the consignee (in the second suit) claimed the goods well within the period of one month mentioned in the rules.
The fact that he was liable to pay demurrage because he did not take delivery of the goods within three days did not relieve the railway of its respon sibility as warehouseman.
As it had been concurrently found by the courts below that there had been negligence by the railway within the meaning of sections 151 and 152 of the Indian Contract Act, the railway war, liable to make good the loss caused by the fire.
[593 A B]