P L D 1971 Lahore 743 (PLP)

Ch. Abdul Wahid for A.‑G. for Respondent. Date of hearing: 15th March 1971 This reference is under Order XLVI, rule 7, C. P. C., by the learned District Judge, Lahore, on the application of Messrs Dada Ltd., Lahore.

2. Briefly the facts are that Messrs Dada Ltd., Lahore, instituted a suit for the recovery of Rs. 500 as compensation for damage to 75 cement asbestos sheets, which were booked through the Pakistan Western Railway for delivery to the petitioner at Lahore. The suit was filed in the Small Cause Court, Lahore, but an objection under Article 1 of the 2nd Schedule to "the Provincial Small Causes Courts Act was taken by the respondent with regard to the jurisdiction of the Court. The learned Judge Small Cause Court returned the plaint while upholding the objec tion raised by the respondent. A review application was filed by the petitioner which was also dismissed. Later on the petitioner filed an application under Order XLVI, rule 7, C. P. C. before the District Judge, Lahore for making a reference to the High Court for revising the order of the learned Judge Small Cause Court. This application was accepted by the learned District Judge, Lahore, vide his order dated 16th of April 1970. The learned counsel for the petitioner has supported the order of reference made by the District Judge, Lahore, and has not added anything further to the reasons already given therein.

3. The learned Judge Small Cause Court, Lahore has mainly relied upon the provision of Article 1 of the Second Schedule to the Small Causes Courts Act in deciding that the Small Cause Court had no jurisdiction to try the case. According to Article 1 of the Schedule, "A suit concerning any act done or purporting to be done by or by order of the Central Govern ment (the Government) representative, or Provincial Government" has been excepted from the cognizance of a Court of Small Causes. This Article has no application to cases of negligence and the interpretation of this provision made by the learned Judge, Small Cause Court is not correct. The present suit is for the recovery of compensation for damage to petitioner's goods caused by the omission or neglect of duty on the part of the respondent. Such omission or negligence cannot be termed as an official act, such as is contemplated by Article 1 of the Second Schedule to the Act. No particular act of any particular official has been challenged in the present suit and in the absence of that, provision as contained in the said article cannot be attracted. It has been so held in Messrs Punjab Rai & Co. v. The Secretary of State for India, in Council ((1894) 97 P R 349) the relevant portion thereof is as under: ‑ "I think that the act must not be a mere omission or neglect of duty, such as any private individual might be guilty of, but that it must be some definite act purporting to be done by the official under the authority of his office, and reasonably falling within the scope of such authority. I would hold that a suit based upon an alleged breach of contract by a Government Railway Company to deliver goods entrusted to them in the ordinary way as agents of Government for conveyance to a specified place, cannot be rightly described as a suit concerning an official act, such as Article 3 of the 2nd Schedule of the Provincial Small Causes Courts Act contemplates, inasmuch as the breach of contract complained of was not committed under cover of any alleged authority conferred upon the Railway Company as officers of Government, but was such an act as any private individual or private company might have been held liable for, and therefore, not an act "purporting to be done in an official capacity" intended to be covered by the article." The same view was taken in Bunwari Lal Mukerjee v. The Secretary of State for India (I L R 17 Cal. 290), The Committee of Notified Area Una, District Hushlarpur v. Chitar Behari Narain (1918 P L R 263).

4. If the view of the learned Judge, Small Cause Court is accepted then it will mean that no suit whatsoever can be brought against the Government in the Small Cause Court. I think the Legislature never intended to do so. It is apparent on record that no special act of negligence or omission has been imputed to any particular officer of the Railway, so as to make it a suit, concerning any act done or purporting to be don by an officer of the Government in his official capacity. I particular negligence or omission is alleged on the part of a particular officer of the Government resulting in the damage of the goods booked with the respondents even then I doubt whether that act would fall under Article 1 of the 2nd Schedule because that act should be distinct from a mere omission o neglect of duty of which any private individual may be guilty. This provision contemplates some definite act purporting to be done by an officer of the Government and as such breach o contract or in other words omission or neglect in duty cannot b described as an official act such as Article 1 of the Schedule contemplates. The learned counsel for the respondent tried to argue that the Small Cause Court had no jurisdiction in the present case as amount involved was less than its. 2,000.00 and referred to Conciliation Courts Ordinance, 1961, in this respect. This argument has no force as under subsection (2) of section 3 of the said Ordinance, the jurisdiction of conciliation Courts with regard to cases by or against the Central Government or Provincial Government has been barred.

5. The learned District Judge has rightly disagreed with the views of Judge Small Cause Court. Respectfully agreeing with the views of their Lordships expressed in the above‑men tioned authorities, this reference is accepted and it is held that the present suit is not within Article 1, 2nd Schedule of Provincial Small Causes Courts Act of 1887, and the Small Cause Court has jurisdiction to try the present case. The file of the case will be sent back immediately to the learned District Judge, Lahore, who in turn will send to the Judge, Small Cause Court, Lahore, for necessary trial. There will be no order as to costs. K. B. A. Reference accepted.