JUDGMENT
Mukerji, J.
1. This rule relates to a suit for recovery of Rs. 78-1 on account of compensation. The plaintiffs’ case was that a consignment of 10 bags of T.B. Nuts was dispatched to them from the Hajigungeghat Steamer Station to Dibrugarh Bazar Station on the Dibru Sadia Railway, that of this consignment only nine bags were delivered to them, and that one bag containing one mauad 22½ seers was not delivered and 27 seers out of live amongst the nine bags that were delivered were short. The suit was tried by the Court of Small Causes at Dibrugarh and the Munsif dismissed it. The plaintiffs then moved this Court and obtained the present rule.
2. The defendants in the suit are the River Steam Navigation Co. Ltd. and the Indian General Navigation and Railway Co., Ltd., carrying on the joint steamer service through which the goods were dispatched. In carrying the goods to their destination the last part of the journey had to be made by rail, the place of destination being a station on the Dirbu Sadia Railway. The defendants produced a “clear receipt” from the Railway Company which was marked Ex. B. The Munsif dismissed the suit holding that the defendant ‘companies are protected from liability by reason of this receipt, and as the Railway Company had not been impleaded in the suit the plaintiffs can have no remedy.
3. The Forwarding Note and the Bill of Lading show but one contract to carry the goods from Hajigungeghat to Dibrugarh Bizar. If this was the only contract between the parties it is clear that the learned Munsif’s decision is wrong in view of the decisions in the cases of Dekhan Tea Co. v. Assam, Bengal Railway Co. [1920] 47 Cal. 6, and India General Navigation Railway Co. v. Giridharilal Gobardhone Das .
4. The opposite party while conceding that this must be so have endeavoured to support the dismissal of the suit upon other grounds which are many and varied. The whole of the arguments addressed to me on both sides, which I may say in passing extended over several hours, proceeded upon an assumption that a risk-note in form A, which is on the record has not been proved in the case. On behalf of the opposite party it was argued that though the risk-note is not in evidence the reference to it in the Bill of Lading and the Forwarding Note which are in evidence, coupled with the conduct of the plaintiffs in demanding of the Railway Company compensation for the loss, is sufficient to lead to an inference that the plaintiffs, were aware that a part of the journey was to be performed by rail; and so the defendants’ liability was at an end when they have proved the “clear receipt” Ex. B. Reliance was also placed on their behalf on condition No. II on the back of the Forwarding Note. It is much to be regretted that the learned advocates for the parties laboured under such a gross misapprehension though it must be said in fairness to them that it is the arrangement of the papers on the record that is to a certain extent responsible for this misapprehension. On a perusal of the records after the arguments were over I find that in point of fact the risk-note in question has been duly proved in the case by certain witnesses examined on commission. It has been proved to refer to this particular consignment and to have been executed by the senders Bansidhar Bijranglal in favour of the ‘Eastern Bengal Railway in respect of the carriage of the goods from Hajigungeghat Station to the Dibrugarh Bazar Station. This risk-note suggests that the Steamer Companies were acting as agents for the Eastern Bengal Railway; in any event there were two parallel contracts for the carriage of the same goods and for the same journey, Whether the risk-note is sufficient in the present case to absolve the Railway Company or not is a question that need not be enquired into. It is sufficient to say that the suit could not under such circumstances be proceeded with in the absence of the Railway Company and that the plaintiffs cannot possibly recover from the Steamer Companies when they have been able, to produce a clear receipt of the goods from the other.
5. The Rule is discharged with costs one gold mohur.
