ORDER
N.C. Kochhar, J.
1. This appeal under Section 100 of the Code of Civil Procedure (the Code) is directed against the judgment and decree dated 7-2-1983 passed by the learned Additional District Judge, Bharatpur in Civil Appeal No. 4/79 (91/78) arising out of the judgment and decree dated 18-7-1978 passed by the learned Civil Judge, Bharatpur in Civil Suit No. 33/74. The brief facts are as under:-
2. On 3-10-1974 the plaintiff-appellant had filed a suit against the defendant-respondent Union of India through its Railway Administration with the allegation that the plaintiff firm carried on the business in Janakpur Dham, Nepal and had been registered in accordance with the Nepalis Law and had purchased 198 tins of mustard oil at the rate of Rs. 89.60 p. per tin from Bharatpur which were booked vide R.R. No. 0232183 dated 30-7-1971 for being carried from Bharatpur to Jai Nagar in the State of Bihar at the railway’s risks. It was pleaded that, ordinarily, the consignment ought to have reached the destination station within 15 to 20 days, but, due to negligence of the defendant-respondent, it reached the destination station after two months and on 9-10-1971 when its open delivery was taken at the destination station some of the tins were found empty and some were found damaged and the delivery was taken against the shortage certificate issued by the railway administration vide No. 48,42,46. The plaintiff-appellant alleged that the shortage in the goods and damage to the tins had resulted due to negligence, mismanagement and fault of the employees of the railway administration. The plaintiff-appellant alleged that he had suffered loss of Rs. 6,370.60 p. and that he had served notice under Section 78B of the Indian Railways Act (the Act) as also notice dated 29-7-19’J’4 under Section 80 of the Code but the defendant-respondent had not paid the amount of the loss suffered by the plaintiff. The plaintiff-appellant thus prayed that a decree in the sum of Rs. 6395.60 p., including Rs. 25/ towards the expenses of the notice, be passed against the defendant-respondent with costs and pendente-lite and future interest. The suit was contested by the defendant-respondent, who admitted the booking of the consignment, but plead that the tins in question had not been packed in accordance with the railway rules and that the loss and shortage occurred due to the defective packing and not because of any negligence or mismanagement or fault on the part of the defendant-respondent. The suit was also contested on the grounds that the plaintiff-appellant had the place of business at Bharatpur as well as Jainagar district in the State of Bihar and was not registered under the Indian Partnership Act and further that the notice served on the defendant-respondent was not valid. It also pleaded that the suit had not been filed through a proper person. After framing the necessary issues and recording the evidence produced by the parties, the learned trial court came to the conclusion, that the plaintiff-appellant was the owner of the goods which were booked at the railway risks and that the damage to the goods had been caused due to the negligence and fault of die railway administration and that the plaintiff firm was not carrying on any business in India and its non-registration under the Indian Partnership Act was of no consequence and that notice served by the plaintiff under Section 80 of the Code was valid and that the suit was filed by a duly authorised person. Consequently, the learned trial court decreed the suit filed by the plaintiff with costs. The appeal filed by the defendant-respondent was heard by the learned Additional Dist. Judge, Bharatpur, who, vide the impugned judgment, has held that the notice served on the defendant-respondent under Section 80 of the Code was not valid inasmuch as it had been served by a firm having the same name as of the plaintiff but which carried on business at Dharbhanga, whereas, according to the allegation in the plaint, the plaintiff appellant carried on business only in Nepal and it has been specifically denied by the plaintiffs only witness and attorney PW-1 Ved Prakash that the plaintiff firm had no connection with the firm of the same name in Dharbhanga in the State of Bihar. The learned first Appellate Court further held that the damage/loss to the goods occurred because of its defective packing and not because of any negligence or fault on the part of the defendant-respondent. Consequently, the appeal filed by the defendant-respondent was accepted and the suit filed by the plaintiff-appellant was dismissed, leaving the parties to bear their own costs. Feeling aggrieved, the plaintiff-appellant has approached this Court by filing this second appeal.
3. I have heard the learned Counsel for the parties and have also perused the record of the case.
4. The first point raised by the learned Counsel for the plaintiff-appellant is that on the basis of the pleadings of the parties, the learned trial court had placed the onus of the issue regarding negligence/mismanagement on the defendant-respondent and inspite of the fact that no evidence had been produced by the defendant-respondent to discharge that onus, the learned first Appellate Court has come to the conclusion that the damage/loss occurred because of the defective packing and that the plaintiff had failed to prove any negligence/mismanagement on the part of the defendant-respondent.
5. From the record, I find that the onus of proving that the loss/damage did not occur due to the negligence/mismanagement on the part of the defendant-respondent had been placed by the learned trial court on the defendant-respondent, who did not produce any evidence. Even otherwise, how in goods were handled after their receipt by the defendant and during transit was a fact within the specific knowledge of the defendant who was required to prove that fact (see Section 106 of the Indian Evidence Act). As noted above, the defendant-respondent had failed to produce any evidence, whatsoever, and the learned first Appellate Court without considering this aspect of the matter and without there being any evidence came to the conclusion that the goods got damaged not due to the negligence or misconduct on the part of the employees of the defendant due to the defective packing. The finding of the learned first Appellate Court on this point, therefore, cannot be upheld.
6. It has next been contended that the notice under Section 80 of the Code has to be construed liberally and not with a view to find fault there with. It is, however, not disputed that according to the case set up in the plaint as also in the statement of the plaintiffs only witness and attorney Ved Prakash (PW-1) the plaintiff firm carried on business only in Nepal and had no connection with any firm having the same name as that of the plaintiff firm but which carried on business in the State of Bihar, whereas, according to the notice, the firm on behalf of which it had been sent was the one having same name that of the plaintiff but which was carrying on business in the State of Bihar. It may be that the plaintiff firm also carried on business in the State of Bihar but PW-1 deposed that it had no connection with the Bihar firm with a view to get out of the position that the plaintiff firm was not registered and suit was barred under Section 69 of the Indian Partnership Act. In view of the position mentioned above, it has to be taken that the firm which sent the notice to the defendant was not the same which has filed the present suit. The notice thus, even though most liberally construed cannot be read to have been sent by the plaintiff firm on the defendant before filing of the suit and, as such it cannot be said that the provisions of Section 80 of the Code had been substantially complied with. The argument of the learned Counsel for the appellant on this point has, therefore, to be rejected.
7. In view of my finding that the notice was rightly held to be invalid by the learned first Appellate Court, this appeal fails and is dismissed. Since none has appeared on behalf of the defendant-respondent, there will be no orders as to costs.
