JUDGMENT
Blackwell, J.
1. This is an appeal by the 3rd defendant company from a decision of the Assistant Judge of Ahmedabad dismissing an appeal from the Subordinate Judge at Ahmedabad. The facts in the case may be stated very shortly and are not really in dispute. They are as follows :-On June 30, 1921, the plaintiffs delivered 87 bales of piece goods at Ahmedabad to the 1st defendants, the B.B. & C.I. Railway Company, for carriage to Sealdah. The goods were consigned under what is known as risk-note B to which I will presently refer. They were loaded in a waggon No. 32700 belonging to the 3rd defendants, the East Indian Railway Company, who are the present appellants. The goods were carried from Ahmedabad to Agra by the let defendant Company, and thence over the 3rd defendant Company’s line via Asansol to Sealdah. They arrived at Sealdah on August 9, 1921, and upon examination it was found that there were 85 bales intact, that one bale was entirely missing, and that there was the outer covering of another with one bundle in it.
2. Under these circumstances, the plaintiffs sued the 1st defendant Company, the 2nd defendant Company who were subsequently struck off, and the 3rd defendant Company for damages for the loss of 2 bales, alleging in their plaint that they had not been delivered by reason of carelessness, indifference, and want of proper care on the part of the defendant companies. The only written statement to which it is now necessary to refer is that of the 3rd defendant Company in which, in substance, they deny negligence, rely upon the terms of the special contract contained in the risk-note, and put the plaintiffs to the proof of any exceptional circumstances which would entitle them to recover having regard to the terms of that risk-note.
3. Several issues were raised in the case, but Mr. Coyajee, who appeared for the appellants, informed the Court that the only issues material for the purposes of the present appeal were issues 2, 5 and 7. Those issues are in the following terms:-(2) “Are the defendant companies absolved from all liability whatsoever for the suit consignment because it was booked under risk-note Form B?” The answer to that issue given by the learned Subordinate Judge was “No.” The 5th issue was: “Is it proved by the defendant companies that they took as much care of the suit consignment as persons of ordinary prudence would do ?” The answer to that issue was “No.” And the 7th issue was : “Was the loss due to the wilful neglect of the Railway servants? The answer to that issue was “Yes”.
4. The material terms of the risk-note are in substance that the consignors agree and undertake to hold the defendants harmless and free from all responsibility for any loss from any cause whatever “except for the loss of a complete consignment or of one or more complete packages forming part of a consignment due either to the wilful neglect of the Railway Administration, or to theft by, or to the wilful neglect of, its servants, transport agents, or carriers employed by them.”
5. The law governing a case of this character is now to be found in a decision of G.I.P. Railway v. Himatlal (1923) 25 Bom. L.R. 350. In that case the learned Chief Justice Sir Norman Macleod referred to a decision of the House of Lords in H.G. Smith Limited v. Great Western Railway Company [1922] 1 A.C. 178. In that case the defendants at the trial called no evidence, but contended that the plaintiffs had failed to establish any case of wilful misconduct against them, and it was held that the refusal of the defendants to account for the loss of the goods was not evidence which justified the Court in inferring that the loss arose from the wilful misconduct of the defendants’ servants. In the case of O.I.P. Railway v. Himatlal, the learned Chief Justice said at p. 353:-“It appears, therefore, that although it may be said that in equity the railway company ought to give such information to their customers as is in their possession with regard to the loss of goods delivered to them, it is not incumbent under the law upon them to do, and they are not obliged to go out of their way to assist a plaintiff in proving wilful neglect.” In my opinion, it is plain from this decision that, apart from suits in a Small Cause Court to which I will presently refer, whatever may be the moral obligation upon a Railway Company to render facilities in discovering how goods entrusted to them under a special contract, and not as bailees, may have disappeared, there is no legal obligation upon them to call any evidence to show by examination-in-chief how a loss occurred, or to enable a plaintiff by cross-examination to prove this if he can. It may, of course, be possible for a plaintiff by administering interrogatories to compel admissions from the Railway Company as to how the goods have been lost. It is also, of course, incumbent upon the Railway Company to disclose in its affidavit of document all material documents in its possession, and if any of those documents enable a plaintiff to show how the goods have disappeared, he may in that way be able to discharge the burden which is in the first instance upon him. But except in a Small Causa Court I am satisfied that there is in such cases as the present no legal obligation upon a defendant to call evidence unless he chooses to do so. The position is different in a Small Cause Court having regard to what the learned Chief Justice said in the case to which I have referred (G.I.P. Railway v. Himatlal Jagjivandas), namely, that “as there are no rules of procedure enabling a party to administer interrogatories in a Small Cause Court suit we still think that in this country a railway company should produce before the Court for examination those of their servants who were in a position to be acquainted with the facts relating to the disappearance of their customer’s goods.” In view of what the learned Chief Justice had said earlier in the case, namely, that it is not incumbent under the law upon a Railway Company to give such information to their customers as is in their possession with regard to the loss of goods delivered to them, and that they are not obliged to go out of their way to assist the plaintiff in proving wilful neglect, it seems to me plain that his remarks as to a Railway Company producing for examination before the Court such of their servants as are acquainted with the facts apply only to a suit in a Small Cause Court. Accordingly in my judgment the head-note in the case, paragraph 2 following upon the word “Held,” does not correctly represent the actual decision.
6. This being in my view the law applicable to a case of this kind, what are the proved facts in this case ? The plaintiffs called only one witness, their Manager. He said this: “The fact that we got 2 bales short is the neglect of the Railway. I cannot show any other neglect of the Railway Administration. I have no evidence for negligence, carelessness, indifference except the fact of short delivery by two bales.” That was the only evidence adduced by the plaintiffs. Under the terms of the risk-note, to enable them to succeed, it was incumbent upon them to adduce some evidence to show that the loss was due either to the wilful neglect of the Railway Administration, or to theft by, or to the wilful neglect oil, its servants. It is plain that on the evidence adduced by the plaintiffs themselves, they had not discharged the burden, and in my opinion, if the defendants had submitted at the close of the plaintiffs’ case that the plaintiffs had failed to make out any case against them, they would have been entitled to succeed. But in this case the 3rd defendants took upon themselves to call evidence. [His Lordship next dealt with questions of facts arising in the case and continued.]
7. In the result, for the reason I have given, I am of opinion that the plaintiffs by cross-examination of a witness tendered by the defendants discharged the prima facie burden which was upon them, and afforded evidence from which the inference drawn by the learned Assistant Judge was amply justified. That evidence was not rebutted by the 3rd defendant Company.
8. In the circumstances, I am of opinion that the appeal must be dismissed with costs.
Jhaveri, J.
9. I agree in the order of dismissal of this second appeal with costs. The facts and the law of the case have been exhaustively dealt with by my learned senior brother.
10. Where I differ from him is in the interpretation of the decision in G.I.P. Railway v. Himatlal (1923) 25 Bom. L.R. 350. No doubt, the House of Lords’ ease is to the effect as has been set out by my learned brother. The judgment of the learned Chief Justice Sir Norman Macleod, however, so far as our Courts are concerned, seems to me to have slightly modified the view taken in England, and for this observation, I rely on this passage of the judgment of the learned Chief Justice at page 354:-“But as there are no rules of procedure enabling a party to administer interrogatories in a Small Cause Court suit we still think that in this country a railway company should produce before the Court for examination those of their servants who were in a position to be acquainted with the facts relating to the disappearance of their customer’s goods.” This passage does not indicate that the duty lay upon the Railway Company of producing the evidence of their servants etc., only in ease of suits being fought out in the Court of Small Causes. In my opinion the observation is general. It applies to all the Courts in this country.
11. But an express decision on the point or a finding on that particular question is not necessary in this case, because the defendants have chosen to lead evidence, whether under the authority of this case or otherwise, and if once they chose to lead such evidence, they should have completed the chain; that they have not done. Therefore, as far as this case is concerned, I am in complete agreement with the exhaustive judgment of my learned senior brother, and I would also dismiss this appeal with costs.
