IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 83 of 1988 in FIRST APPEAL No 1000 of 1975 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and MR.JUSTICE A.M.KAPADIA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- UNION OF INDIA Versus HARILAL TALAKCHAND -------------------------------------------------------------- Appearance: MR RM VIN for Appellant MS KJ BRAHMBHATT for Respondent No. 1 MR DU SHAH for Respondents Nos. 2 to 4 NOTICE SERVED for Respondent No. 5 MR SK JHAVERI for Respondent No. 6 -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE A.M.KAPADIA Date of decision: 25/01/2000 ORAL JUDGEMENT (Per J.M. Panchal, J.) 1. The judgment challenged in this appeal preferred under clause 15 of the Letters Patent is in favour of the plaintiff, now the respondent No.1, for Rs.10,428.06 Ps. together with proportionate costs of the suit with running interest at the rate of 6% per annum from the date of filing of the suit till the realisation thereof, and against the original defendants Nos.1 and 6, now the appellant and the respondent No.6 respectively. For the sake of convenience, we propose to refer to the parties with their original status in the suit. 2. The Plaintiff - Harilal Talakchand Shah is a resident of Bhavnagar and deals in cotton waste. He had contracted to purchase 160 quintals of 40-60 komber cotton waste at the rate of Rs.323/- per quintal from the defendant No.5 - Mill Company which is situated at Morvi. The plaintiff wanted to transfer 70 bags of cotton waste worth Rs.10,500/- from the factory of the defendant No.5 to his shop at Bhavnagar. Therefore, he entered into a contract with the defendant No.1 - Jugaldas Amritlal Shah for carriage of said 70 bags of cotton waste from Morvi to Bhavnagar, at the rate of Rs.3.50 Ps. per bag. It was agreed upon between the plaintiff and the defendant No.1 that the defendant No.1 would bring the goods by his public carrier bearing registration No. GTG 155. The plaintiff handed over a chit Ex.84 to the defendant No.1 whereby the plaintiff had requested the defendant No.5 Mill Company to deliver the goods to the bearer of the chit in truck bearing registration No.GTG 155. By the said chit the defendant No.5 was asked to give a chit showing the weight and number of bags delivered. Another chit Ex.85 written by the Munim of the plaintiff informing the Manager of the defendant No.5 that a draft for Rs.10,000/- dated December 2, 1972 drawn on State Bank of Saurashtra, Bhavnagar had been sent which should be credited to the plaintiff's account and a stamped receipt should be sent, was also handed over to the defendant No.1. The plaintiff got the goods to be transported through truck bearing registration No. GTG 155 insured with Jupiter General Insurance Company Limited on December 6, 1972. The defendant No.1 was not in a position to bring the goods by his truck bearing registration No. GTG 155 as it had failed and, therefore, assigned the work of transporting the goods to the defendant No.2, M/s. Devdutt & Company, a transport company, Shihor, of which the defendants Nos.3 and 4 are partners, and handed over two chits written by the plaintiff to the defendant No.5 Mill Company, to the driver of the defendant No.2. The driver of the defendant No.2 went to Morvi on December 6, 1972 to bring the goods from the defendant No.5 with truck bearing registration No. GTC 2727 belonging to the defendant No.2. The defendant No.4 took delivery of the goods in question on production of the chits Exhibits 84 and 85 and loaded them in the truck bearing registration No. GTC 2727. For going from Morvi to Bhavnagar by road, one has to pass through Sanala - Virpur road at which juncture on the other side of the road a narrow gauge railway line runs parallel to the said road for about 1 Km. According to the driver of the truck bearing registration No. GTC 2727, the goods and the truck caught fire due to the sparks of burning coal that emitted from the Passenger Train No. 484 Dn. and perished. On receiving the information that the goods had perished in fire, the plaintiff lodged claim with Jupiter General Insurance Company Limited but the insurance company rejected the claim made by the plaintiff, by an intimation dated May 5, 1973, on the ground that the fire had taken place while the goods were being transported in truck bearing registration No. GTC 2727 and not in truck bearing registration No. GTG 155. According to the plaintiff, the defendant No.1 had committed breach of the contract by entrusting the work of transport to the defendants Nos.2 to 4 without his knowledge or consent and was liable for damage caused to the goods. It was also the case of the plaintiff that the defendants Nos. 1 to 4 were also liable as common carriers of the goods whereas the defendant No.5 was liable because in spite of specific instructions to send the goods in truck bearing registration No. GTG 155, the defendant No.5 had delivered the goods to the defendant No.4, a partner of the defendant No.2, and loaded them in truck bearing registration No. GTC 2727. It was also asserted by the plaintiff that the goods caught fire due to the sparks which came out of the running railway engine on account of the negligence and misconduct of the driver of the defendant No.6 as a result of which the defendant No.6 was also liable to satisfy his claim for damage to the goods. Under the circumstances, the plaintiff instituted Special Civil Suit No. 77 of 1973 in the Court of the learned Joint Civil Judge (S.D.)., Bhavnagar and prayed for a decree of Rs.11,379.16 Ps. against all the defendants. 3. The defendant No.1 in his written statement at Ex.50, inter alia, contended that no contract was entered into between him and the plaintiff for bringing the goods from the defendant No.5 Mill Company in his public carrier bearing registration No. GTG 155 and, therefore, the suit was liable to be dismissed against him. In the alternative, it was pleaded that he was not legally liable to satisfy the claim of the plaintiff because the fire had taken place due to negligence of driver of railway engine which in turn was responsible for sparks coming out of the running railway engine. The plea regarding suit being bad for misjoinder of parties and misjoinder of causes of action was also raised by the defendant No.1. 4. The defendants Nos.2, 3 and 4 contested the claim of the plaintiff by filing written statement at Ex.46 and contended, inter alia, that as there was no privity of contract between them and the plaintiff and as they did not act as a common carrier, suit was not maintainable against them. It was also contended by those defendants that their truck along with suit goods was destroyed because of the fire which broke out due to sparks coming out of the running railway engine and, therefore, the plaintiff was not entitled to recover any amount from them. 5. The defendant No.5 controverted the claim of the plaintiff by filing written statement at Ex.53 and contended that as per the contract, the goods were to be delivered to the plaintiff or to his agent at Morvi on payment of price and as the defendant No.5 had delivered the goods as per the instructions of the plaintiff, the suit against the defendant No.5 was liable to be dismissed. 6. The defendant No.6 pleaded in the written statement at Ex.47 that the goods were not destroyed because of the fire caused by burning coal sparks coming out of the railway engine nor the railway engine driver was negligent at all and as the railway engine was fitted with fire arrester, the suit against the Union of India, owning the Western Railways should be dismissed. 7. Upon rival assertions of the parties, as many as 17 issues were framed at Exh.55 for determination by the learned trial Judge. 8. The parties to the suit adduced oral as well as documentary evidence in support of their respective case. The learned trial Judge, on appreciation of evidence, held that it was proved by the plaintiff that he had contracted to purchase from the defendant No.5, Arunodaya Mills, 160 quintals of komber cotton waste at the rate of Rs.323/- per quintal on November 20, 1972 and that the plaintiff had entered into a contract with the defendant No.1 to bring the goods from the defendant No.5 in public carrier bearing registration No. GTG 155 belonging to the defendant No.1. The trial court found that the value of the goods to be transported was Rs.10,428.06 Ps. and not Rs.10,500/- as was asserted by the plaintiff. The trial court concluded that the defendant No.1 committed breach of contract entered into with the plaintiff and negligently entrusted the transport work to the defendants Nos.2 to 4. After taking into consideration the evidence led by the railway employees, the trial court deduced that it was not proved by the plaintiff that the goods were destroyed in transit from Morvi to Bhavnagar on Sanala - Virpur road due to sparks of burning coal coming out of the running railway engine of the defendant No.6, nor was there any misconduct or negligence on the part of the engine driver of the defendant No.6. The learned trial Judge further held that there being no privity of contract between the defendants Nos.2 to 4 with the plaintiff, the defendant No.1 was liable to satisfy the claim of the plaintiff. The learned trial Judge also held that the defendant No.5 had effected delivery of the goods as instructed by the plaintiff and was not liable for the damage caused to the goods. In view of the permission which was granted by the trial court to the plaintiff under Section 20 (b) of the Civil Procedure Code, 1908 to implead the defendant Nos.5 and 6 as parties, as well as having regard to other factors, the trial court found that the Court of Civil Judge (S.D.)., Bhavnagar had jurisdiction to hear and decide the suit and the suit was not bad for multifariousness. In view of the above referred to conclusions, the trial court decreed the suit against the defendant No.1 vide judgment dated July 31, 1975. 9. Feeling aggrieved by the said decree, the original defendant No.1 preferred First Appeal No. 1000 of 1975 whereas the original plaintiff filed cross-objections praying for a decree against all the defendants. The learned Single Judge by the impugned judgment has passed the decree against the original defendants Nos.1 and 6 giving rise to the present appeal by the Union of India owning Western Railways. The original defendant No.1 has filed cross-objections bearing Stamp No. 7992 of 1990 and challenged the confirmation of decree against him by the learned Single Judge. 10. Though the original plaintiff has not filed appeal against the judgment and decree of the learned Single Judge nor cross-objections praying that the decree should be passed against the co-defendants, the question arising out of the impugned judgment is whether the decree should be passed against other defendants also in view of the submissions advanced by the learned counsel for the plaintiff as also in view of the provisions of Order 41 Rule 33 of the Civil Procedure Code. O.41 r.33 of the Civil Procedure Code enables the appellate Court to pass any order or decree to meet the ends of justice. This provision has been considered by the Supreme court in cases of: (i) Delhi Electric Supply Undertaking v. Basanti Devi and another (1999) 8 SCC 229, (ii) Mahant Dhangir v. Madan Mohan, 1987 Supp. SCC 528 and (iii) Panna Lal v. State of Bombay and others, AIR 1963 SC 1516. In Mahant Dhangir (supra) the Supreme Court has explained the scope of Rule 33 of Order 41 of the Civil Procedure Code in the following terms: "The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate court could also pass such other decree or order as the case may require. The words 'as the case may require' used in Rule 33 of Order 41 have been put in wide terms to enable the appellate court to pass any order or decree to meet the ends of justice. What then should be the constraint? We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraint that we could see, may be these: That the parties before the lower court should be there before the appellate court. The question raised must properly arise out of the judgment of the lower court. If these two requirements are there, the appellate court could consider any objection against any part of the judgment or decree of the lower court. It may be urged by any party to the appeal. It is true that the power of the appellate court under Rule 33 is discretionary. But it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The court should not refuse to exercise that discretion on mere technicalities." 11. All the parties are before us. The question of liability of other defendants against whom the plaintiff has not filed appeal or cross-objections properly arises out of the impugned judgment and though the power of the appellate court under Order 41 Rule 33 is discretionary, it would be a proper exercise of judicial discretion to determine all questions urged before us in order to render complete justice between the parties. Therefore, we propose to examine the liability of other defendants also without going into technicalities. 12. Mr. R.M. Vin, learned counsel for the appellant, pleaded that no reliable evidence is adduced by the plaintiff to establish that the fire had taken place as a result of sparks coming out of railway engine and, therefore, the appeal should be accepted. It was further claimed that the evidence of railway employees examined on behalf of the defendant No.6 shows that fire arrester was fitted to the engine and as there was no possibility of sparks coming out of the railway engine, the impugned judgment should be set aside. 13. Mr. S.K. Jhaveri, learned counsel for the defendant No.1, submitted that no contract had taken place between the plaintiff and the defendant No.1 for transporting the goods of the plaintiff from Morvi to Bhavnagar and therefore the cross-objections filed by the defendant No.1 should be allowed. It was claimed that the defendants Nos.1 to 4 had a right to refuse to carry goods in the trucks belonging to them and, therefore, they cannot be regarded as a common carrier within the meaning of the Carriers Act, 1865 nor can be saddled with the liability as such. In the alternative, it was stressed that the defendants Nos.2 to 4 were duly appointed as agents by the defendant No.1 and were, therefore, liable to the plaintiff for carriage of goods in view of the Section 194 of the Indian Contract Act, 1872. What was emphasised by the learned counsel for the defendant No.1 was that there was sheer negligence on the part of the driver of the railway engine as a result of which sparks came out from the running railway engine destroying the goods and, therefore, the appeal filed by the Union of India owning Western Railways should be dismissed. The learned counsel for the defendant No.1 also pointed out that the original defendant No.5 had delivered the goods as per the instructions of the plaintiff and, therefore, the dismissal of the suit against the defendant No.5 should be confirmed by this Court. On behalf of the defendant No.1 it was further contended that the delivery of the goods was not made to the plaintiff nor the property in the goods had passed to the plaintiff as a result of which the suit instituted by the plaintiff who was not the owner of the goods was not maintainable. Last but not the least, it was submitted that different causes of action against different persons has affected the merits of the case as well as jurisdiction of the court and, therefore, the suit of the plaintiff should have been dismissed by the learned trial Judge. 14. Mr. D.U. Shah, learned counsel for the defendants Nos.2 to 4, submitted that there was no privity of contract between the plaintiff and the defendants Nos.2 to 4 for transporting the goods from Morvi to Bhavnagar nor was there any negligence on the part of the driver of the defendant No.2 in transporting the goods from Morvi to Bhavnagar but the goods got destroyed because of the sparks coming out of the running railway engine and, therefore, dismissal of the suit against the defendants Nos.2 to 4 should be confirmed. 15. Ms. Kalpanaben Brahmbhatt, learned counsel for the original plaintiff, pleaded that concurrent finding of fact to the effect that there was contract between the plaintiff and the defendant No.1 for transporting the goods from Morvi to Bhavnagar is based on appreciation of evidence and, therefore, the same should not be disturbed by this court. It was claimed that the defendant No.1, contrary to specific instructions of the plaintiff entrusted the work of transport to the defendants Nos.2 to 4 and committed breach of contract, as a result, the finding recorded by the learned trial Judge as well as by the learned Single Judge that the defendant No.1 is liable to satisfy the claim of the plaintiff should be upheld by this court. The learned counsel for the original plaintiff asserted that the defendants Nos.1 to 4 are common carriers within the meaning of the Carriers Act, 1865 and, therefore, their liability being that of an insurer, the decree passed against the defendant No.1 should be upheld whereas the defendants Nos.2 to 4 should also be held liable for damage to the goods. While highlighting the liability of the defendant No.5 regarding suit claim, it was stressed that the defendant No.5 had effected the delivery of the goods to an unauthorized person contrary to the instructions of the plaintiff and, therefore, the defendant No.5 should also be saddled with the liability. The learned counsel for the plaintiff further pleaded that the evidence on record clearly establishes that the damage to the suit goods was caused due to fire taking place from sparks coming out of running railway engine on account of negligence and misconduct of the driver of the defendant No.6 and, therefore, the appeal filed by the Union of India owning Western Railways should be dismissed. 16. We have heard the learned counsel for the parties at length and have also gone through the evidence on record. In view of the contentions urged by the learned counsel for the Union of India, the first question which arises for our consideration is whether the suit goods got destroyed in transit from Morvi to Bhavnagar on Sanala - Virpur road due to the sparks of burning coal coming out of running railway engine of the appellant. It is an admitted position that neither the plaintiff nor the defendants Nos.1, 3 and 4 were physically present when the goods got destroyed by fire and everything turns upon the evidence of Mohan Naran who was driving the truck bearing registration No. GTC 2727 as well as Kanji Khoda who was driving the railway engine and who was accompanied by other railway employees. From the evidence of Mohan Naran, Ex.115, it is evident that in the capacity of the driver of the truck bearing registration No. GTC 2727 he was sent to bring the suit goods from Morvi to Bhavnagar by the defendant No.4 and he got delivery of the goods in truck bearing registration No. GTC 2727 from the defendant No.5 Mill Company. According to him, he had covered the suit goods with tarpaulin as well as tied the same with ropes before leaving for Bhavnagar. Mohan Naran claimed that when he reached Sanala station, he noticed a train moving slowly and saw the engine driver loading coal inside the engine as well as sparks coming out of the engine as a result of which he took his truck ahead of the railway engine and covered a distance of about 1/2 a mile where he noticed smoke coming out of the rear side and stopped the truck. According to this witness, he tried to extinguish the fire but due to stormy wind, the fire spread all over the truck and before he could summon fire extinguisher, the truck and the goods perished. We may state that the learned trial Judge who had advantage of observing the demeanor of the witness has disbelieved this witness after taking into consideration the statements made by the witness in his cross-examination. We may mention that though a specific finding is recorded by the trial Court that fire had not taken place due to sparks flying from railway engine, the learned Single Judge has proceeded on the footing that no such finding is recorded and the learned Single Judge has not referred to cross-examination of this witness at all. The learned Single Judge, after placing reliance on a few statements made in examination-in-chief, has deduced that fire to the goods had taken place because of sparks of burning coal coming out of the running railway engine. Therefore it has become necessary for us to evaluate evidence of this witness critically. On critical examination of the evidence tendered by this witness on oath, we are of the opinion that he is not a witness of truth. In examination-in-chief this witness has claimed that the defendant No.1 had handed over chits meant for the defendant No.5 to the defendant No.4 and had asked the defendant No.4 to bring the goods from Morvi to Bhavnagar but in cross-examination by the defendant No.1 this witness has clearly admitted that the defendant No.1 had asked him to bring the goods from Morvi to Bhavnagar and neither the defendant No.3 nor the defendant No.4 had asked him to bring the goods from Morvi. Further, at the time of taking delivery of the goods from the defendant No.5 Mill Company, this witness though had handed over chits meant for the defendant No.5 to its Manager, had never informed the Manager that he was not the driver of the truck bearing registration No. GTG 155 and that he had brought the truck bearing registration No. GTC 2727 for transporting the goods from Morvi to Bhavnagar. Though during the cross-examination by the defendant No.5 this witness has claimed that the railway engine was not fitted with fire arrester nor was there any cover, in cross-examination by the defendant No.6, i.e., Railway Administration, this witness has in no uncertain terms admitted that he has no idea as to what is fire arrester or how cover of the chimney of the railway engine is known. Again the witness asserted in the examination-in-chief that on noticing the sparks coming out of the railway engine he went with the truck ahead of the railway engine, but in cross-examination by the defendant No.6 this witness had to admit that on seeing the sparks he had tried