JUDGMENT
Nagendra Prasad Singh, J.
1. This revision application has been filed on behalf of the plaintiff under Section 25 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as ‘the Act’) for setting aside a judgment and decree passed by the Small Cause Court Judge dismissing the suit of the plaintiff. It was heard by a learned single Judge of this Court who referred this case to a Division Bench.
2. It appears that the plaintiff-petitioner filed a suit for realisation of Rs. 281.62 Paise, being the price of D.A. phosphate which had been consigned on 14-4-70 from Kanta Pukur to Narkatia-gan.i by the North Eastern Railway. The consignor was the Food Corporation of India which had consigned 440 bags of D.A. phosphate, each bag containing 50 Kgs., in favour of the plaintiff under Railway Receipt dated 14-4-70 (Ext. A). According to the case of the plaintiff when that consignment reached at. Nar-katiaganj railway station it was in a damaged and pilfered condition and a shortage of 251 kgs. was discovered. A shortage certificate was also granted by the railway at the time of delivery. After serving the notice the aforesaid suit was filed for a decree of the amount mentioned above along with Interest. On behalf of the railways a written statement was filed disputing the claim made on behalf of the plaintiff. The defence, inter alia, was that the consignment was
loaded in the wagons supplied by the defendant to the consignor. It was also asserted that the bags which had been used for containing the phosphate in question were of inferior quality and had not been properly sewn. In such a situation the railways cannot be held responsible for shortage, if any, found at the destination. The plaintiff examined two witnesses. No witness was, however, examined on behalf of the railways. On behalf of the defendant railways two documents were exhibited and marked, namely the railway receipt (Ext. A) and a letter from the Chief Commercial Superintendent, Gorakhpur. The court below, however, upholding the claim of the plaintiff that there was shortage of 251 kgs, dismissed the suit on the finding that the shortage had occurred due to the negligence and carelessness of the consignor.
3. The learned counsel appearing for the petitioner has submitted that the court ‘below, on the facts and in the circumstances of the case, has wrongly placed the onus on the plaintiffs. He has submitted that in absence of any evidence adduced on behalf of the defendants that there was negligence or carelessness on the part of the consignor, the court below could not have absolved the railways of their responsibility under the statute. The learned counsel also pointed out that the court below has committed a serious error of record while making reference to paragraph 3 of the plaint. In paragraph 6 of the judgment the learned Judge has observed that it was quite clear from paragraph 3 of the plaint that the consignment was not properly handled by the consignor and was loaded in a bad, damaged and pilfered condition. We have looked into that paragraph of the plaint. The plaintiff has never made such statement in the plaint. On the other hand, it has stated that the consignment reached Narkatiaganj railway station in a damaged and pilfered condition.
4. Now the question is whether this court can interfere in exercise of the power under Section 25 of the Act. In the instant case, the forwarding note which could have shown whether the package was defective or not, has not been produced by the railways and no explanation has been given for its non-production. I have already pointed out that no witness has been examined on be-
half of the railways to prove that the shortage was due to the negligence and carelessness of the consignor.
5. Learned counsel appearing on behalf of the railways submitted that on the facts and in the circumstances of the present case, there was no such onus on the railways to prove that the shortage was due to the negligence of the consignor. In support of this contention reliance has been placed on a Bench decision of this court in the case of Union of India v. Chhatelal Shewnath Rai (AIR 1973 Pat 244). In that case it was held that where it was not shown by the consignor that a defective or leaky wagon for carriage of goods was supplied to him at the despatching station and it was merely asserted by him that when the goods reached destination the wagon was leaking badly, thus resulting in short delivery, it would be presumed that the wagon supplied was in good condition. It was also pointed out that from a mere mention of a particular weight of the consignment on railway receipt and forwarding note which carried such endorsement only for calculating the freight charge, no admission on behalf of the railway as to correctness of the weight loaded could be made out to fix the liability. But in my opinion, the aforesaid judgment is of no help to the defendants opposite party. In that case, the loading had been done at the station of despatch by the consignor himself under L/U condition, which means the wagon was loaded by the consignor himself and was to be unloaded by the consignee at the destination point. In that background it was observed that the consignor has to lead evidence and to prove to the satisfaction of the court that the railway was responsible for the shortage. Ratio of that case will not apply to cases where the consignor has handed aver the goods to the railway and it has been loaded by the railway. In the instant case, it will appear from the railway receipt (Ext, A) Itself that the goods had been loaded by the labourers of the railway and loading charges had been realised. The consignee was, however, to unload. Therefore, the despatch was not under L/U condition. In such a situation the responsibility was of the railways to check up as to in which condition the goods had been entrusted to it for consignment. In my view, In such cases the principles laid down by a Bench decision of this
court, in the case of Sheonand Rai Gajanand v. Union of India (1968 BLJR 22) is applicable, In that case four bales of cotton yarn were booked under railway risk. The consignment reached Darbhanga in damaged condition and open delivery was given. Thereafter a suit was filed against the railway. It was however, dismissed by the Small Cause Court Judge. On revision being filed this Court decreed the suit for the loss caused to the plaintiff and it was observed that in such cases the railways would not be relieved of its liability unless it also proves that it had no notice of such defective packing at the time the consignment was booked. The court noted that on that point no evidence was adduced on behalf of the railway. Even the forwarding note which could have shown whether the packing was defective or not, had not been produced by the railway and no explanation was given for its non-production. In my view, the aforesaid judgment is fully applicable to the facts and circumstances of the present case. In the instant case also, the railways had, apart from proving defective packing, to prove further the fact that at the time the consignment was booked the railway administration had no notice of the defective packing. On all these points no evidence has been adduced. In such a situation I am left with no option but to set aside the judgment and decree passed by the Small Cause Court Judge and to decree the suit of the plaintiff with costs throughout and interest pendente lite at 6 per cent per annum with future interest at 6 per cent per annum till realisation of the amount.
P.S. Sahay, J.
6. I agree.