THE HON’BLE SRI JUSTICE K.S. APPA RAO CIVIL REVISION PETITION No.5581 of 2003 Date: 02nd September, 2011 Between: The Union of India rep. by its General Manager, Northern Railway … Petitioner / Respondent No.4 And The Court of Senior Civil Judge, Chirala, Prakasam Dist rep. by its Registrar and 7 others … Respondents THE HON’BLE SRI JUSTICE K.S. APPA RAO CIVIL REVISION PETITION No. 5581 of 2003 ORDER: This Civil Revision Petition is filed against the decree and judgment dated 03.03.2003 passed by the Senior Civil Judge, Chirala in O.S.No.11 of 1998. The petitioner herein is defendant No.4 in the said suit. For the sake of convenience, the parties hereinafter will be referred to as they are arrayed in the suit. The plaintiff filed the suit O.S.No.11 of 1998 for recovery of Rs.1,17,549/- on the basis of a Parcel Way Bill dated 27.05.1997 issued by the Commercial Supervisor, South Central Railway, Vetapalem and receipt dated 28.05.1997 issued for Rs.45/- by the speed post authority. The plaintiff alleged that he is the proprietor of M/s P.S.R. Cashew Products at Vetapalem and doing business in Cashew Kernels for the last 4 years and on the basis of the orders of the 7th defendant, the plaintiff booked ten bundles of cashew kernels weighing 453.6 Kg worth Rs.80,500/-, excluding the package weight under Parcel Way Bill No.533367 in the name of one Mr. Raju Bai, who is the agent of 7th defendant, on 27.05.1997 at Vetapalem with the 4th defendant by paying Rs.1,904/- towards carriage charges. But the booked consignment and EMS cover were not received by the 7th defendant and on regular correspondence, the 7th defendant informed that he did not receive the EMS cover and that he could not get delivery of cashew kernels bundles. The Assistant Government Pleader filed a written statement on behalf of the 6th defendant and also filed a memo on behalf of defendants 1, 2, 3 and 5 adopting the written statement of 6th defendant. As per the averments in the written statement, all the defendants admitted that the plaintiff booked one cover through speed post through the 3rd defendant to the 7th defendant on 28.05.1997 under Receipt No.529, admitting to deliver the same within 48 hours. Defendants 4 and 7 remained ex parte. Defendant No.4 is the present revision petitioner. After due enquiry and trial, the trial Court decreed the suit for Rs.1,17,459/- with costs against all the defendants. After the decree in the lower Court, the petitioner filed E.P. No.19 of 2003 in which the Senior Divisional Commercial Manager, South Central Railways, Vijayawada, cited as 8th JDR and garnishee of Defendant No.4, got attached the movable properties on 25.07.2003 as per orders in the petition filed under Order XXI Rule 43 CPC. On such attachment, the Senior Divisional Commercial Manager, South Central Railways filed E.A. No.158 of 2003 in E.P. No.19 of 2003 in O.S. No.11 of 1998 and deposited an amount of Rs.1,27,070/- on 25.08.2003. Being aggrieved by the judgment in O.S. No.11 of 1998, the present CRP is filed by petitioner/defendant No.4. The learned Standing Counsel appearing for the petitioner - Railways contended that the order of the lower Court is against the statutory rules provided under the Railways Claims Tribunal Act, 1987 and the judgment against Respondents 3 to 8 herein is without any jurisdiction and in violation of the statutory provisions of the above Act and drawn attention of the Court to Sections 13 and 15 of above Act. He further stated that the plaintiff has no locus standi to file the suit against the Railways and other respondents and the consignment vide Parcel Way Bill No.533367 dated 27.05.1997, marked as Ex.A1, at Vetapalem had been booked by Mr. Raju Bai of Vetapalem, and consigned to Mr. Raju Bai at New Delhi, and the consignor and the consignee is one and the same. It is further stated that the trial Court violated the statutory rule positions of the RCT Act and attached the properties of Chirala Railway Station of South Central Railway and that the lower Court failed to see that the General Manager, South Central Railway is not a party to O.S. No.11 of 1998 and the Senior Divisional Commercial Manager, South Central Railway, Vijayawada, was added as 8th JDR and the garnishee of Defendant No.4, without giving any opportunity to the Railways. Now the point for consideration is whether the decree and judgment of the trial Court is sustainable. This is a suit for recovery of Rs.1,17,549/- on the basis of a Parcel Way Bill issued by the Commercial Supervisor, South Central Railway, Vetapalem, after receiving Rs.1904/- towards carrier charges. In the trial Court, the plaintiff was examined as PW.1 and got marked Exs.A1 to A17. On behalf of the contesting defendants, DW.1 was examined and got marked Ex.D1. The present revision petitioner is not a party to O.S.No.11 of 1998. The garnishee attachment of Respondent No.1 herein was issued against Respondent No.4 herein, basing on which an amount of Rs.1,27,070/- was deposited. Even then the 4th defendant was set ex parte. The claim of the plaintiff is against D1 to D7. It is his main contention that he booked parcel through Railways and the same has not reached the destination. Before filing the suit, he filed voluminous documentary evidence to show that he has taken all diligent steps while placing grievance for the claim. Ex.A1 is the copy of Way bill dated 27.05.1997 issued by the Commercial Supervisor, South Central Railway, Vetapalem. Ex.A3 is the Office Copy of the complaint dated 03.07.1997 given by P.W.1. Ex.A9 is the postal acknowledgment of Defendant No.4. After due trial, the learned Senior Civil Judge decreed the suit against all the defendants. As per the record, the suit was filed in the year 1998 and it was decreed in the year 2003. Though Defendant No.4 received the suit notices, he kept quiet and did not participated in the proceedings. After decree, the plaintiff filed E.P. No.19 of 2003 in which the 8th JDR i.e. Senior Divisional Commercial Manager, South Central Railway, Vijayawada and garnishee of Defendant No.4 were arrayed as parties. After impleading the 4th JDR, the Railways deposited the warrant amount. The Railways did not prefer any appeal against the order in E.P. No.19 of 2003. They did not raise maintainability of the said E.P before making the deposit. Having kept quiet all through from the date of the suit and till they filed the present appeal, they now raised the plea of jurisdiction. Had Defendant No.4, after receiving the suit notices, made appearance and raised the contention that the Civil Court had no jurisdiction, the rights of either parties would have been decided in the suit itself. Having kept quiet all through and now raising the plea of jurisdiction, at this belated hour, much less after depositing the amount, is nothing but shirking the responsibility of the Railways. Though it is quoted under Section 163 of the RCT Act that all claims relating to the railways are before the Railway Tribunal, in the present case, the plaintiff from the date of his consignment till he filed the suit, moved all the offices seeking their indulgence, but all the defendants kept silent. As the plaintiff booked the consignment at Vetapalem, belonging to R4, he filed the suit claiming damages. Several attempts were also made by the plaintiff to trace the cover but in vain and the defendants also did not properly respond and the consignment was also not returned to the plaintiff. Due to the gross negligence of all the defendants, the plaintiff was deprived of the goods consigned by him. Admittedly, ten bundles of cashew kernels were booked by the plaintiff at Vetapalem and having received the consignment, it is the responsibility of the Railway authorities to see that the booked consignment is delivered to the consignee promptly. If the goods are not delivered, the same should have been returned to the person who booked the consignment. From the evidence of P.W.1 and the documentary evidence vide Exs.A1 to A10, it is manifest that the railway authorities did not give proper reasons when the plaintiff approached them. As seen from the impugned order, the 4th defendant was also served Ex.A5-notice issued under Section 80 of RCT Act, and also served with suit summons engaged an advocate, but remained ex parte. If there is no negligence on the part of the 4th defendant, he should have participated in the suit proceedings and should have produced necessary documents and raised the plea of jurisdiction. Therefore, having deposited the E.P amount and non-participation in the proceedings before the Court and now raised the plea of jurisdiction, in my view, is only a lame excuse. In that view of the matter, and in the circumstances of non-participation of the petitioner in the suit and also in the E.P. proceedings, raising the plea of jurisdiction at this belated hour is not sustainable. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. __________________________ JUSTICE K.S. APPA RAO 02nd September, 2011 KSM