{"id":256308,"date":"1965-02-23T00:00:00","date_gmt":"1965-02-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-vs-mahadeolal-prabhudayal-on-23-february-1965"},"modified":"2015-06-20T07:14:00","modified_gmt":"2015-06-20T01:44:00","slug":"union-of-india-vs-mahadeolal-prabhudayal-on-23-february-1965","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-vs-mahadeolal-prabhudayal-on-23-february-1965","title":{"rendered":"Union Of India vs Mahadeolal Prabhudayal on 23 February, 1965"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Of India vs Mahadeolal Prabhudayal on 23 February, 1965<\/div>\n
Equivalent citations: 1965 AIR 1755, 1965 SCR (3) 145<\/div>\n
Author: K Wanchoo<\/div>\n
Bench: Wanchoo, K.N.<\/div>\n
           PETITIONER:\nUNION OF INDIA\n\n\tVs.\n\nRESPONDENT:\nMAHADEOLAL PRABHUDAYAL\n\nDATE OF JUDGMENT:\n23\/02\/1965\n\nBENCH:\nWANCHOO, K.N.\nBENCH:\nWANCHOO, K.N.\nMUDHOLKAR, J.R.\nSIKRI, S.M.\n\nCITATION:\n 1965 AIR 1755\t\t  1965 SCR  (3) 145\n CITATOR INFO :\n RF\t    1969 SC 817\t (4)\n\n\nACT:\nIndian\t Railways   Act<\/a>\t  (9   of   1890),   ss.   72<\/a>\t and\n77-<\/a>-Risk-note\tin  Form Z--Mode of proof of  liability\t  of\nrailway\t administration--Notice under s. 77-<\/a>-When necessary.\n\n\n\nHEADNOTE:\n    Out\t of  a\tconsignment  of\t 60  bales  of\tpiece  goods\ndespatched  by the Railway, under risk-note Form Z, only  29\nbales\twere  delivered\t to  the  respondent  who  was\t the\nconsignee.  By sending the consignment thus,  the  consignor\ngot  a\tspecially  reduced rate but the burden was thrown on\nhim,  of proving misconduct on the  part of the\t railway  or\nits  servants,\tif there was a loss of goods.  The  risknote\nalso  imposed an obligation on the Railway, to disclose\t how\nthe  consignment was dealt with by it, during the  time\t the\nconsignment was in its possession or control. The respondent\nwrote  a  letter  to the Chief\tCommercial  Manager  of\t the\nRailway stating\t that 60 bales were booked but only 29 bales\nhad  been  delivered, and that a suit for damages  would  be\nfiled. The letter was  sent  within  6 months of the booking\nof the consignment ,and contained the details\t  as to\t how\nthe amount of damage was arrived at. Later on, a notice\t was\ngiven under s. 80 of the Civil Procedure Code, 1908, and   a\nsuit  was filed for damages. But, before the filing  of\t the\nsuit, there was no demand by the consignor for a  disclosure\nas  to\thow the consignment was dealt with  by\tthe  Railway\nthroughout the period it was  in its possession or  control.\nThe  Railway  however,\tmade a\tdisclosure  in\tits  written\nstatement  as.\tto how\tthe  consignment  was,\tdealt\twith\nthroughout  that period. Its defence was that, there  was  a\ntheft  in  the running train and that was how  part  of\t the\nconsignment  was lost and not due to any misconduct  on\t the\npart of the Railway or its servants. Even after the suit was\nfiled and evidence let in at the trial, by the railway there\nwas  no\t statement by the respondent at any stage  that\t the\ndisclosure  made by the Railway in the written statement  or\nin the evidence, was in any way inadequate. The\t resplendent\nnever  told the court after the\t evidence  of  the   Railway\nw.as over, that he was net satisfied with the disclosure and\nthat  the  Railway  should  be\tasked  to  make\t a   further\ndisclosure.  The suit was dismissed by the trial  court\t but\ndecreed on appeal, by  the  High Court.\n    In\tthe  appeal to the Supreme Court  it  was  contended\nthat,  (i)  the,  suit was barred by s.\t 77<\/a>  of\t the  Indian\nRailways Act, 1890, inasmuch as notice required therein\t was\nnot given by the respondent, and (ii) under the terms of the\nrisk-note  the Railway was absolved from all  responsibility\nfor  the  less of the goods consigned thereunder,  from\t any\ncause  whatsoever.  except upon proof of misconduct  of\t the\nRailway\t or  its servants, that the burden of  proving\tsuch\nmisconduct  was on the respondent and that  the\t  respondent\nhad failed to discharge the burden.\n    HELD:  (i) A notice under s. 77<\/a> of the Act is  necessary\nin  the case of non-delivery which arises from the  loss  of\ngoods.\tThough the letter, written by the respondent to\t the\nChief Commercial Manager, was not specifically stated to  be\na  notice  under the section it gave all  'the\t'particulars\nnecessary  for\tsuch a notice and it was also  given  within\ntime prescribed.  Therefore,  the  letter  was\t  sufficient\nnotice for the purpose of the Act, [149 D-F]\n146\n   Governor General in Council v. Musaddilal [1961]3  S.C.R.\n647  and  Jatmull  Bhojraj  v.\tThe   Darjeeling   Himalayan\nRailway\t Co.Ltd<\/a>. [1963] 2 S.C.R. 832, followed.\n (ii)  The view of the High Court, that there was  a  breach\nof  the condition relating to complete disclosure, and\tthat\non such breach the risk-note could be completely ignored and\nthe responsibility of the Railway judged purely on the basis\nof  s. 72(1)<\/a> of the Act, as if the goods were  consigned  at\nthe ordinary rates on  the  Railway'srisk, was not  correct.\n[154 H]\n   The\tresponsibility\tof  the\t railway  administration  to\ndisclose  to  the consignor as to how  the  consignment\t was\ndealt  with throughout the time it was in its possession  or\ncontrol\t arises at once, under the risk-note, in  either  of\nthe  cases referred to therein, and is not confined  to\t the\nstage  of litigation. But such disclosure is necessary\tonly\nwhere a consignor specifically asks the railway to make\t the\ndisclosure.  If\t no  such  disclosure  is  asked  for,\t the\nadministration\tneed  not  make it  before  the\t litigation.\nTherefore,  if\tthe  Railway did not  make  the\t disclosure,\nbefore\tthe  suit was filed, it could not be  said  to\thave\ncommitted a breach of the term of  the\tcontract [153 A-D]\n   The\tdisclosure envisages a precise statement of how\t the\nconsignment  was dealt with by the railway or its  servants.\nIf  the disclosure is asked for before litigation  commences\nand  is not given, or the disclosure is given but it is\t not\nconsidered  to be sufficient by the consignor,\tthe  dispute\nhas to be judicially decided and it is for the court to say,\nif a suit is filed, whether there .has been a breach ,of the\nterm.At that stage, evidence has to be led by the railway in\nthe  first  instance to substantiate  the  disclosure  which\nmight  have  been  made\t before\t the  litigation,  to,\t the\nconsignor,  or\twhich might have been made  in\tthe  written\nstatement. When the administration has given its evidence in\nproof  of the disclosure, if the plaintiff is not  satisfied\nwith the disclosure made in  evidence, he is entitled to ask\nthe court to call upon the railway to fulfill its obligation\nunder  the  contract, and the railway should then  have\t the\nopportunity  of meeting the demands of the plaintiff. It  is\nthen for the court to decide whether the further  disclosure\ndesired\t by. the plaintiff should be made  by  the  railway,\nand if the court decides that it should be made, the railway\nhas to make such further disclosure as the court orders.  If\nthe  railway fails to take that opportunity to\tsatisfy\t the\ndemands\t  of   the  plaintiff endorsed\tby  the\t court,\t the\nrailway,   at  that  stage,  would  be\tin  breach  of\t its\ncontractual obligation of disclosure.  [153 E-154 B]\nThe  effect  of\t the  breach however is\t not  to  bring\t the\ncontract  to  an  end and throw the  responsibility  on\t the\nrailway,   as\tif   the   case\t was  a\t  simple   case\t  of\nresponsibility\tunder s.72(1). The risk-note would  continue\nto  apply  and the court would have to\tdecide\twhether\t the\nmisconduct  can be fairly inferred from the evidence of\t the\nrailway,  with\tthe difference that, where the\trailway\t has\nbeen  in breach of its obligation to make  full\t disclosure,\nmisconduct  may be  more readily inferred and s. 114<\/a> of\t the\nEvidence Act more readily applied. But the conditions of the\nrisk-note cannot be completely ignored, simply because there\nhas   been   a\t breach\t of  the   condition   of   complete\ndisclosure.[154 D-G]\nSurat Cotton Spinning & Weaving Mills v. Secretary of State<\/a>\nfor India in Council [1937] 64 I.A. 176, applied.\n\n\n\nJUDGMENT:\n<\/pre>\n
   CIVIL APPELLATE JURISDICTION:  Civil\t Appeal No. 536\t of
\n1962.\n<\/p>\n
   Appeal from the judgment and decree dated March 26. 1958,
\nof the High Court at Patna in First Appeal No. 340 of .1951.\n<\/p>\n
147<\/span><\/p>\n
     Niren    De,   Additional\t  Solicitor-General,\tN.D.
\nKarkhanis and B.R.G.K. Achar, for the appellant.
\n Bishan\t Narain, P. D. Himmatsinghka s. Murthy\tand\tB.P.
\nMaheshwari, for the respondent.\n<\/p>\n
   The judgment of the Court was delivered by
\n    Wanchoo,  J. This is an appeal on a certificate  granted
\nby  the Patna High Court. The respondent sued the  Union  of
\nIndia\tas  representing G.I.P. Railway, Bombay\t and  E.I.R.
\nCalcutta   for\trecovery of damages for non-delivery  of  31
\nbales  of  piece  goods,  out of 60  bales  which  had\tbeen
\nconsigned   to\t Baidyanathdham\t  from\t Wadibundar.\tThis
\nconsignment  was  loaded in wagon No. 9643  on\tDecember  1.
\n1947.  It  is not in dispute that  the\tconsignment  reached
\nMughalsarai  on\t the morning of December 9, 1947 by  192  On
\ngoods train. After reaching Mughalsarai, the wagon was\tkept
\nin  the marshaling yard till December 12, 1947. It wag\tsent
\nto Baidyanadham by 214 On goods train from Mughalsarai at 6-
\n40  p.m.  on  December\t12,  1947  and\teventually   reached
\nBaidyanathdham on December 21, 1947. The respondent who\t was
\nthe consignee presented the railway receipt on the same\t day
\nfor  delivery  of  the consignment.  Thereupon\tthe  railway
\ndelivered 29 bales only to the respondent and the  remaining
\n31  bales were said to be missing and were never  delivered.
\nConsequently  on August 31. 1948, notice was g:yen under  s.
\n80 of the Civil Procedure Code and this was followed by\t the
\nsuit out of which the present appeal has arisen on  November
\n20,  1948. The consignment had been booked under  risk\tnote
\nform Z which for all practical purposes is in the same terms
\nas risk note form B. The respondent claimed damages for non-
\ndelivery on the ground that the non-delivery was due to\t the
\nmisconduct of the servants of the railway, and the claim was
\nfor a sum of Rs. 36,461\/12\/-.\n<\/p>\n
    The\t suit was resisted by the appellant and a number  of
\ndefences  were\ttaken.\tIn the present appeal  we  are\tonly
\nconcerned with two defences. It was first contended that the
\nsuit was barred by s. 77<\/a> of the Indian Railways Act, No.  IX
\nof 1890, (hereinafter  referred to as the Act), inasmuch  as
\nnotice\trequired  therein was not given by  the\t respondent.
\nSecondly  it  was contended that the  consignment  was\tsent
\nunder risk note form Z and under the terms of that risk note
\nthe  railway was absolved from all responsibility for  loss,
\ndestruction  or deterioration of goods consigned  thereunder
\nfrom any cause whatsoever except upon proof of misconduct of
\nthe railway of its servants. and that the burden of  proving
\nsuch  misconduct  subject to certain exceptions was  on\t the
\nrespondent  and that the respondent had failed to  discharge
\nthat  burden.  Further in compliance with the terms  of\t the
\nrisk  note,  the  railway made a disclosure in\tthe  written
\nstatement   as\tto  how\t the  consignment  was\tdealt\twith
\nthroughout  the period it was in its possession or  control.
\nThe  case of the railway in this connection was\t that  there
\nwas a theft in the running train between Mughalsarai and
\n148<\/span>
\nBuxar on December 12, 1947 and that was how part of the con-
\nsignment was lost. As the loss was not due to any misconduct
\non  the\t part  of the railway or its  servants\tand  as\t the
\nrespondent  had not discharged the burden which lay  on\t him
\nafter the railway had given evidence of how the\t consignment
\nhad been dealt with, there was no liability on the railway.
\n   On the first-point, the trial court held On the basis  of
\ncertain\t decisions  of the Patna High Court that  no  notice
\nunder  s. 77<\/a> was necessary in a case of\t non-delivery  which
\nwas  held  to be different from loss. On  the  second  point
\nrelating to the responsibility of the railway on the’  basis
\nof  risk note form Z, the trial court held that it  had\t not
\nbeen  proved  that  the loss was due to\t misconduct  of\t the
\nrailway or its servants. It therefore dismissed the suit.
\n    Then  followed an appeal by the respondent to  the\tHigh
\nCourt.\tThe High Court apparently upheld the finding of\t the
\ntrial court on the question of notice under s.77. But on the
\nsecond point the High Court was of opinion that there was  a
\nbreach of the condition of disclosure provided in risk\tnote
\nZ under which the consignment had been booked, and therefore
\nthe  appellant could not take advantage of the risk note  at
\nall and the liability of the railway must be assessed on the
\nfooting of a simple bailee. It therefore went on to consider
\nthe liability of the railway as a simple bailee and held  on
\nthe’  evidence that the railway did not take proper care  of
\nthe  wagon  at Mughalsarai and that in all  probability\t the
\nseals  and rivets of the wagon had been allowed to be broken
\nthere and all arrangements had been completed as to how\t the
\ngoods  would be removed from the wagon when the train  would
\nleave that station and this could only be done either by  or
\nin   collusion\t with  the  servants  of  the\trailway\t  at
\nMughalsarai.  In  this\tview of the matter  the\t High  Court
\nallowed\t the appeal and decreed the suit with costs  As\t the
\njudgment  was  one of reversal and the amount  involved\t was
\nover  rupees  twenty  thousand, the  High  Court  granted  a
\ncertificate.  and that is how the matter has come up  before
\nus.\n<\/p>\n
    We .shall first deal with the-question of the notice. We
\nare  in this case concerned with the Act as it -was in\t1947
\nbefore\tits amendment by Central Act<\/a> 56 of 1949\t and-Central
\nAct<\/a> No. 39 of 1961 and all references in this judgment\tmust
\nbe  read as  applying to the Act as it was. in 1947. Now  s.
\n77<\/a>  inter alia provides that a person shall not be  entitled
\nto  compensation for the loss, destruction or  deterioration
\nof  animals or goods delivered to be  carried’\tby  railway,
\nunless\this  claim  to compensation has\t been  preferred  in
\nwriting\t  by  him  or  on  his\tbehalf\tto    the    railway
\nadministration\twithin\tsix  months from  the  date  of\t the
\ndelivery  of the animals or goods for carriage\tby  railway.
\nThere was a conflict between the High Courts on the question
\nwhether\t  non-delivery\t of   goods   carried\tby   railway
\namounted  .to  less within the meaning of s. 77<\/a>.  Some\tHigh
\nCourts (including the. Patna High Court) held that a case of
\nnon-delivery was distinct from a case of loss and no  notice
\nunder
\ns. 77 was necessary .in-the case of non-delivery. Other High
\nCourts however took a contrary view and held that a case  of
\nnon-delivery also was a case of loss. This conflict has\t now
\nbeen  resolved\tby the decision of-this Court  in  Governor-
\nGeneral\t in Council v. Musaddilal (1) and the view taken  by
\nthe Patna High Court has been overruled. This Court has held
\nthat failure to deliver goods is the consequence of loss  or
\ndestruction  and the cause of action for it is not  distinct
\nfrom  the  cause of action for loss  or\t  destruction,\t and
\ntherefore  notice  under s. 77<\/a> is necessary in the  case  of
\nnon-delivery which arises from the loss of goods.  Therefore
\nnotice\tunder s.  77<\/a>  was necessary in the present case.  It
\nis  true  that\tthe  respondent\t stated\t in  the  plaint  in
\nconformity with ‘the view of the Patna High Court  prevalent
\nin Bihar that no notice under s.77 was necessary as it was a
\ncase  of  non-delivery. But we find in actual  fact  that  a
\nnotice\twas given by the respondent to the railway on  April
\n10, 1948 to the Chief Commercial Manager, E.I.R. in which it
\nwas  stated  that  60 bales of-cloth  were  booked  for\t the
\nrespondent   but  only 29 bales had been delivered  and\t the
\nbalance\t of 31 bales had not been delivered.  Therefore\t the
\nrespondent gave notice that if the bales were not  delivered
\nto  him\t within a fortnight, he would file a  suit  for\t the
\nrecovery  of Rs. 36,461\/12\/-, and the details as to how\t the
\namount was arrived at were given in this notice. It is\ttrue
\nthat  the notice was not specifically stated to be a  notice
\nunder  s.  77<\/a> of the Act but it gave.  all  the\t particulars
\nnecessary  in  a notice under that section. This  notice  or
\nletter\twas  sent within six months  of the booking  of\t the
\nconsignment.  A similar case came up  before this. Court  in
\nJetmull\t Bhojraj  v. The Darjeeling  Himalayan\tRailway\t Co.
\nLtd<\/a>.(2) and this Court held that .the letter to the  railway
\nin that case was sufficient notice for the .purpose of s. 77<\/a>
\nof the Act. ‘Following that decision we hold that the letter
\nin  the\t present  case\twhich  is  even\t more  explicit\t  is
\nsufficient  notice for the purpose of S: 77 .of the Act.  We
\nmay  add that the learned Additional Solicitor\tGeneral\t did
\nnot  challenge\tthis  in view of  the  decision\t in  Jetmull
\nBhojraj’s case(2).\n<\/p>\n
  This\tbrings\tus  to the second  question  raised  in\t the
\nappeal.\t We have already indicated that the High Court\theld
\nthat  as the burden of disclosure which was on\tthe  railway
\nhad  not  been discharged there vas a breach of one  of\t the
\nterms of the risk note Z and therefore the risk note did not
\napply at all and the responsibility of the railway had to be
\nassessed  under’ s. 72<\/a> (1) of the Act. This view of the\t law
\nhas-been  contested  on behalf of the appellant and.  it  is
\nurged that after the risk note is executed either in form  Z
\nor  in\tform B, the responsibility of the railway  must.  be
\njudged\tin  accordance with the risk note even if  there  is
\nsome  breach  of the condition as to disclosure. It  may  be
\nmentioned  that\t risk note form Z and risk note form  B\t are
\nexactly similar in their terms insolar as the responsibility
\nof the. railway is .concerned for. risk note
\n150<\/span>
\nform  B\t applies to individual consignment while form  Z  is
\nexecuted by a party who has usually to send goods by railway
\nin large numbers. Risk note form Z is general in its  nature
\nand applies to all consignments that a party may send  after
\nits  execution.\t It is proved that the consignment  in\tthis
\ncase  was  covered by risk note form Z. The  main  advantage
\nthat a consignor gets by sending a consignment under from  Z
\nor  form  B is a specially reduced rate as compared  t3\t the
\nordinary rate at which goods are carried by the railway\t and
\nit  is\tbecause\t of this specially reduced  rate  that\t the
\nburden\tis thrown on the consignor in a suit for damages  to
\nprove misconduct on the part of the railway or its  servants
\nin  the\t case  of loss etc. of the  goods,  subject  to\t one
\nexception.\n<\/p>\n
    On\tthe  other  hand  the  argument\t on  behalf  of\t the
\nrespondent is that the view taken by the Patna High Court is
\nright and it is the duty of the railway administration under
\nthe risk note, as soon as there is non-delivery and a  claim
\nis made on the railway for compensation, to disclose how the
\nconsignment  was dealt with throughout while it was  in\t its
\npossession or control and that its failure to do so  results
\nimmediately  in breach of the contract with the result\tthat
\nthe responsibility of the railway has to be judged solely on
\nthe  basis  of s. 72<\/a> (1) of the Act ignoring the  risk\tnote
\naltogether.\n<\/p>\n
    Section 72<\/a> (1) defines the responsibility of the railway
\nadministration for the loss, destruction or deterioration of
\nanimals\t  or  goods delivered to the  administration  to  be
\ncarried by railway to be the same as that of a bailee  under
\nss. 152 and 161 of the Indian Contract Act<\/a>, 1872, subject to
\nother  provisions  of  the Act. Sub-section  (2)  of  s.  72<\/a>
\nprovides   that\t an  agreement\tpurporting  to\t limit\t the
\nresponsibility\tunder s. 72<\/a> (1) can be made subject  to\t two
\nconditions,  namely, (i) that it is in writing signed by  or
\non behalf of the person sending or delivering to the railway
\nadministration the animals or goods, and (ii) that it is  in
\na form approved by the Governor-General. Sub-section (3)  of
\ns. 72 provides that nothing in the common law of England  or
\nin  the Carriers Act 1865  regarding the  responsibility  of
\ncommon carriers with respect to carriage of animals or goods
\nshall affect the responsibility as in  this section  defined
\nof the railway administration. So the responsibility of\t the
\nrailway for loss etc. is the same as that of a bailee  under
\nthe  Indian  Cantract Act. But this  responsibility  can  be
\nlimited\t as  provided  in  s. 72<\/a> (2).  For  the\t purpose  of
\nlimiting  this responsibility risk notes form B and  form  Z
\nhave  been approved by the Governor-General and where  goods
\nare  booked under these risk notes the liability is  limited
\nin   the  manner  provided  thereunder.\t  It  is   therefore
\nnecessary  to set out the relevant terms of the\t risk  note,
\nfor  the decision of this case will turn on  the  provisions
\nof the risk note itself.\n<\/p>\n
    The risk note whether it is in form B or form Z provides
\nthat  where goods are carried at owner’s risk  on  specially
\nreduced\t rates, the owner agrees or undertakes to  hold\t the
\nrailway administration
\n151<\/span>
\n“harmless  and\tfree from all responsibility for  any  loss,
\ndeterioration  or destruction of or damage to all or any  of
\nsuch consignment from any cause whatever, except upon  proof
\nthat  such loss, destruction, deterioration or damage  arose
\nfrom   the   misconduct\t  on  the  part\t  of   the   railway
\nadministration\tor its servants”. “thus risk notes B  and  Z
\nprovide\t for  complete immunity of the railway\texcept\tupon
\nproof of misconduct. But to this immunity there is a proviso
\nand it is the construction of the proviso that arises in the
\npresent appeal.\n<\/p>\n
The proviso is in these terms:–\n<\/p>\n
\t\t     “Provided\t that\tin   the   following
\n\t      cases:–\n<\/p><\/blockquote>\n
\t\t    (a)\t Non-delivery  of  the\twhole  of  a
\n\t      consignment  packed  in  accordance  with\t the
\n\t      instruction laid .down in the tariff or  where
\n\t      there   are   no\t instructions,\t   protected
\n\t      otherwise\t than  by  paper  or  other  packing
\n\t      readily removable by hand and fully addressed,
\n\t      where such non-delivery is not due
\n\t      to   accidents   to   train   or\t to    fire;\n<\/p><\/blockquote>\n
\t      (b)  ……………\n<\/p><\/blockquote>\n
\t\t    “The  railway  administration  shall  be
\n\t      bound  to\t disclose to the consignor  how\t the
\n\t      consignment  was\t dealt with  throughout\t the
\n\t      time it was in its possession or control,\t and
\n\t      if necessary, to give evidence thereof  before
\n\t      the   consignor  is  called  upon\t  to   prove
\n\t      misconduct, but, if misconduct on the part  of
\n\t      the  railway  administration or  its  servants
\n\t      cannot be fairly inferred from such  evidence,
\n\t      the  burden of proving such  misconduct  shall
\n\t      lie  upon the consignor”.<\/p><\/blockquote>\n
    It\tis not in dispute that the present case comes  under
\ncl.  (a) of the risk note. An exactly similar  provision  in
\nrisk note form B came up for consideration before the  Privy
\nCouncil\t in  Surat  Cotton  Spinning  &\t Weaving  Mills\t  v.
\nSecretary Of State<\/a> for India in Council, (‘) and the law  on
\nthe subject was laid down thus at   pp.181-182:\n<\/p>\n
\t\t“The  first portion of the proviso  provides
\n\t      that  the Rail-\tway Administration shall  be
\n\t      bound  to\t disclose  to  the   consignor\t‘how
\n\t      the  consignment was dealt with through-\t out
\n\t      the time it was in its possession or  control,
\n\t      and, if\tnecessary to give evidence  thereof,
\n\t      before the consignor   is called upon to prove
\n\t      misconduct’.  In their  Lordships’    opinion,
\n\t      this  obligation\tarises\tat  once  upon\t the
\n\t      occurrence of either of cases (a) or (b),\t and
\n\t      is not confined to the   stage of\t litigation.
\n\t      Clearly  one object of the provision  is\t  to
\n\t      obviate,\t if  possible,\tthe  necessity\t for
\n\t      litigation.  On\tthe other hand, the  closing
\n\t      words  of the obligation clearly apply to\t the
\n\t      litigious\t stage.\t As  to the  extent  of\t the
\n\t      disclosure,  it  is  confined  to\t the  period
\n\t      during  which the
\n\t      (1) [1927] L.P-  LXIV:\n<\/p><\/blockquote>\n
\t      152<\/span><\/p>\n
\t      consignment  was\twithin\tthe  possession\t  or
\n\t      control of the Railway Administration; it does
\n\t      not relate, for instance,\t      to the  period
\n\t      after  the  goods\t have  been  the   fatuously
\n\t      removed from the premises. On the other  hand,
\n\t      it  does envisage a precise statement  of\t how
\n\t      the   consignment\t was  dealt  with   by\t the
\n\t      Administration   or   its\t   servants.\t The
\n\t      character\t of  what  is  requisite  may\tvary
\n\t      according\t to the circumstances  of  different
\n\t      cases, but, if the consignor is not  satisfied
\n\t      that  the\t disclosure has been  adequate,\t the
\n\t      dispute must be judicially, decided. As to the
\n\t      accuracy or truth of the information given, if
\n\t      the  consignor is doubtful or unsatisfied, and
\n\t      considers that these should be established  by
\n\t      evidence, their Lordships are of opinion\tthat
\n\t      evidence\t before\t  a   Court   of   law\t  is
\n\t      contemplated,  and that. as was properly\tdone
\n\t      in    the\t   present   suit,    the    Railway
\n\t      Administration  should submit their   evidence
\n\t      first at the trial.\n<\/p><\/blockquote>\n
\t\t      “At the close of the evidence for\t the
\n\t      Administration\ttwo questions may be said.to
\n\t      arise, which it is important to keep distinct.
\n\t      The  first  question is not  a  mere  question
\n\t      of.procedure,   but  iS  whether\t they\thave
\n\t      discharged  their obligation  of\tdisclosure,’
\n\t      and, in regard  to  this, their Lordships\t are
\n\t      of  opinion  that the terms of the  Risk\tNote
\n\t      require a step in procedure, which may be said
\n\t      to  :be  Unfamiliar  in the  practice  of\t the
\n\t      Court; if the consignor is not satisfied\twith
\n\t      the’  disclosure\tmade  their   Lordships\t are
\n\t      clearly of opinion that is for him tO say\t so,
\n\t      and  to call on the Administration to  fulfill
\n\t      their  obligation\t  .Under the  contract,\t and
\n\t      that  the Administration should then have\t the
\n\t      opportunity   to\tmeet  the  demands  of\t the
\n\t      consignor\t before\t their case is\tclosed;\t any
\n\t      question as to whether the consignor’s demands
\n\t      go  beyond  the  obligation  should  be\tthen
\n\t      determined by the Court. If the Administration
\n\t      fails  to take the opportunity to satisfy\t the
\n\t      demands of the consignor so far as endorsed by
\n\t      the  Court, they will  be\t in breach of  their
\n\t      contractual obligation of disclosure.
\n\t       “The  other  question which may\tbe  said  to
\n\t      arise at this  stage is whether misconduct may
\n\t      be  fairly inferred from the evidence  of\t the
\n\t      Administration;\tif  so,\t the  consignor\t  is
\n\t      absolved\tfrom his original burden  of  proof.
\n\t      But,  in this case, the decision of the  Court
\n\t      may  be given when the evidence of both  sides
\n\t      has  been completed. It  is .clearly  for\t the
\n\t      Administration   to  decide   for\t  themselves
\n\t      whether  they  have adduced all  the  evidence
\n\t      which they consider desirable in avoidance  of
\n\t      such  fair “inference of\tmisconduct”..\tThey
\n\t      will doubtless keep in mind the provisions  of
\n\t      s.114 of the Indian Evidence Act<\/a>“.-<\/p><\/blockquote>\n
    With  respect we are of opinion that this exposition  of
\nthe law relating to risk note B applies also to risk note  Z
\nand we accept it
\n153<\/span>
\nas   correct.  Thus  the  responsibility  of  the   railway.
\nadministration\t to  disclose  to  the\tconsignor  how\t the
\nconsignment  was  dealt with thrOughOut-the time it  Was  in
\nits possession or control arises at once under the agreement
\nin either of the cases (a) or (b) and is not confined to the
\nstage  of litigation. But we are not prepared to accept\t the
\ncontention   on\t  behalf  of  the   respondent\t that\tthis
\nresponsibility\tto make full disclosure\t arises\t immediately
\nthe  claim  is\tmade by the consignor  and  if\tthe  railway
\nimmediately on such claim being made does. not disclose\t all
\nthe facts to the consignor, there is immediately a breach of
\nthis term of the contract contained in the risk note. It  is
\ntrue  that  the\t railway  is  bound  to\t disclose  to\t the
\nconsignor how the Consignment was dealt with throughout\t the
\ntime  it  was in its possession even before  any  litigation
\nstarts;\t but  we  are of  opinion-that\tsuch  disclosure  is
\nnecessary  only\t where the consignor specifically  asks\t the
\nrailway\t to make :the disclosure. If no\t such disclosure  is
\nasked for, the administration need not make it\tbefore\tthe’
\nlitigation. In the present case there is’ no proof that\t any
\ndisclosure was asked for in this behalf by the consignor  at
\nany  time  before  the, suit was  filed.  Therefore  if\t the
\nrailway did not disclose how the consignment was dealt\twith
\nthroughout  before the suit was filed, it cannot be said  to
\nhave  committed\t breach of this term of\t the  contract.\t The
\ndisclosure   envisages\ta  precise  statement  of  how\t the
\nconsignment  was dealt with by the railway or its  servants.
\nif  the\t disclosure  is\t asked\tfor  before  the  litigation
\ncommences and is not given or the disclosure is given but it
\nis  not\t considered to be sufficient by the  consignor,\t the
\ndispute has to be judicially decided and it is for the court
\nthen  to say if a suit is brought whether there has been  Ia
\nbreach of this term’ of the contract.\n<\/p>\n
     After this, comes the stage where the consignor or\t the
\nconsignee’   being   dissatisfied   brings   a\t suit\t for
\ncompensation.  At that stage evidence has to be led  by\t the
\nrailway in the first instance to substantiate the disclosure
\nwhich  might  have been made before the\t litigation  to\t the
\nConsignor  or  which  might have been made  in\tthe  written
\nstatement   in\t reply\tto  the\t suit.\tWhen   the   railway
\nadministration.\t has  given  its evidence in  proof  of\t the
\ndisclosure  and\t the  plaintiff is not\tsatisfied  with\t the
\ndisclosure made in  the evidence, the plaintiff is  entitled
\nto  ask\t the court to call upon the railway  to\t fulfil\t its
\nobligation  under  the\tcontract  and  the  railway   should
\nthen  .have  the opportunity of meeting the demands  of\t the
\nplaintiff before its case is closed. Thus in addition to the
\nevidence that the railway may adduce on its own and in doing
\nso  the\t railway  has  necessarily  to\tkeep  in  mind\t the
\nprovisions  of\ts.  114\t of the\t Indian\t Evidence  Act<\/a>,\t the
\nplaintiff can and should draw .the attention of the court if
\nhe  feels that full disclosure has not been made., In  .that
\ncase  he  can ask the court to require the railway  to\tmake
\nfurther disclosure and should. tell the court  what  further
\ndisclosure  he\twants. It is then for the  court  to  decide
\nwhether\t the  further disclosure .desired by  the  plaintiff
\nshould\tbe  made by the\t railway, and if the  court  decides
\nthat  such  further  disclosure
\n154<\/span>
\nshould\tbe  made  the  railway\thas  to\t make  such  further
\ndisclosure as the court orders it to make on the request  of
\nthe plaintiff. If the railway fails to take the\t opportunity
\nso  given to satisfy the demands of the plaintiff,  endorsed
\nby  the\t court,\t the  railway would  be\t in  breach  of\t its
\ncontractual  obligation of disclosure. It is at\t this  stage
\ntherefore that the railway can be truly said to be in breach
\nof its contractual obligation of disclosure, and that breach
\narises because the railway failed to disclose matters  which
\nthe  court  on\tthe  request of the  plaintiff\tasks  it  to
\ndisclose.  The question then is what is the effect  of\tthis
\nbreach.\n<\/p>\n
    It is remarkable that the Privy Council did not lay down
\nthat  as soon as the breach is made as above the  risk\tnote
\ncomes  to  an end and the responsibility of the\t railway  is
\nthat  of  a  bailee  under s. 72<\/a> (l)  of  the  Act.  In\t the
\nobservations  already quoted, the Privy Council has gone  on
\nto say that after this stage is over, the question may arise
\nwhether misconduct may be fairly  inferred from the evidence
\nof the railway. It seems to us therefore that even if  there
\nis  a breach of the term as to full disclosure it  does\t not
\nbring the contract to an end and throw the responsibility on
\nthe   railway  as  if  the  case  was  a  simple   case\t  of
\nresponsibility\tunder s. 72(1)<\/a> of the Act; the case is\tthus
\nnot assimilated to a case where the goods are carried at the
\nordinary rates at railway risk. The reason for this seems to
\nbe  that the goods have already been carried at the  reduced
\nrates and the consignor has taken advantage of that term  in
\nthe  contract. Therefore, even though there may be a  breach
\nof  the\t term as to complete disclosure by the\trailway\t the
\nconsignor  cannot fall back on the  ordinary  responsibility
\nof  the\t railway under s. 72<\/a> (1) of the Act as if the  goods
\nhad been carried at railway’s risk at ordinary rates, for he
\nhas derived the\t advantage of the goods having been  carried
\nat  a  specially reduced rates. The risk note would  in\t our
\nopinion continue to apply and the  court would still have to
\ndecide\twhether misconduct can be fairly inferred  from\t the
\nevidence of the railway, with this difference that where the
\nrailway\t has been in breach of its obligation to  make\tfull
\ndisclosure  misconduct may be more readily inferred  and  s.
\n114<\/a> of the Indian Evidence Act more readily applied. But  we
\ndo  not\t think that the conditions in the risk note  can  be
\ncompletely  ignored simply  because there has been a  breach
\nof  the\t condition of complete disclosure. The view  of\t the
\nPatna  High  Court that as soon as  there is breach  of\t the
\ncondition  relating to complete\t disclosure  the  risk\tnote
\ncan  be\t completely ignored and the  responsibility  of\t the
\nrailway\t judged purely on the basis of s. 72<\/a> (1) as  if\t the
\ngoods  were carried at the ordinary rates on railway’s\trisk
\ncannot therefore be accepted as correct.\n<\/p>\n
    We\tmay  point  out that in Surat  Cotton  Spinning\t and
\nWeaving Mills Limited’s case, (I) the plaintiffs wanted\t the
\nguard  of the train to be examined and he was undoubtedly  a
\nmaterial witness. Even
\n155<\/span>
\nso  the\t witness was not examined by  the  railway.  Finally
\ntherefore  the Privy council allowed the appeal\t with  these
\nobservations at p. 189:-\n<\/p>\n
\t\t    “While their Lordships would be inclined
\n\t      to hold that the respondent, by his failure to
\n\t      submit  the evidence of Rohead, was in  breach
\n\t      of  his  contractual obligation  to  give\t the
\n\t      evidence\tnecessary for disclosure of how\t the
\n\t      consignment  was dealt with, they are  clearly
\n\t      of  opinion  that the failure  to\t submit\t the
\n\t      evidence\tof Rohead, in the  circumstances  of
\n\t      this  case, entitles the court to presume,  in
\n\t      terms of s. 114<\/a> (g) of the Evidence Act<\/a>,\tthat
\n\t      “Rohead’s\t evidence,  if\tproduced,  would  be
\n\t      unfavorable  to the respondent, and  that,  in
\n\t      consequence,  misconduct by complicity in\t the
\n\t      theft  of\t some servant, or  servants  of\t the
\n\t      respondent  may  be fairly inferred  from\t the
\n\t      respondent’s evidence”.<\/p><\/blockquote>\n
    These observations show that even though there may be  a
\nbreach\tof the obligation to give full disclosure that\tdoes
\nnot mean that the risk note form Z or form B can be  ignored
\nand the\t responsibility of the railway fixed on the basis of
\ns. 72 (1) as a simple bailee. If that was the effect of\t the
\nbreach,\t the  Privy  Council  would not\t have  come  to\t the
\nconclusion after applying s. 114<\/a> (g) of the Evidence Act<\/a>  in
\nthe  case  of Rohead that misconduct by\t complicity  in\t the
\ntheft  of  some servant or servants of the railway   may  be
\nfairly inferred from the railway’s evidence. The appeal\t was
\nallowed by the Privy Council after coming to the  conclusion
\nthat  misconduct by the servant or servants of\tthe  railway
\nmight  be  fairly inferred from the evidence  including\t the
\npresumption   under  s.\t   114(g)<\/a> of the  Evidence  Act.  It
\nseems  to us clear therefore that even if there is a  breach
\nof the obligation to make full disclosure in the sense\tthat
\nthe  railway  does not produce the evidence desired  by\t the
\nplaintiff  in  the  suit  even though  the  request  of\t the
\nplaintiff  is  endorsed\t by the court, the  effect  of\tsuch
\nbreach\tis not that the risk note is completely out  of\t the
\nway, the ‘reason for this as we have already indicated being
\nthat  the  consignor  has already  taken  advantage  of\t the
\nreduced rates and therefore cannot be allowed to ignore\t the
\nrisk  note  altogether. But where there is a breach  by\t the
\nrailway of the obligation to make full disclosure the  court
\nmay more readily infer misconduct on the part of the railway
\nor its servants or more readily presume under s. 114<\/a> (g)  of
\nthe Evidence Act<\/a> against the railway. This in our opinion is
\nthe  effect  of the decision of the Privy Council  in  Surat
\nCotton Spinning and Weaving ‘Mills Limited’s case(1). As  we
\nhave  already said we are in respectful agreement  with\t the
\nlaw as laid down there.\n<\/p>\n
So far as the present appeal is concerned, there was no\t de-
\nby the consignor for disclosure before the suit. Even  after
\nthe suit was filed  there was no statement by the respondent
\nat any
\n(1) [1937] L.R. 64 I.A. 176.\n<\/p>\n
156<\/span><\/p>\n
stage  that  the  disclosure made by the  appellant  in\t the
\nevidence  was  in any way inadequate. The  respondent  never
\ntold  the court after the evidence of the railway  was\tover
\nthat  he was not satisfied with the disclosure and that\t the
\nrailway\t be asked  to make further disclosure  by  producing
\nsuch  further  evidence as the respondent wanted.  In  these
\ncircumstances  it  cannot be said in the present  case\tthat
\nthere was any breach by the railway of its responsibility to
\nmake full disclosure. In the circumstances we are of opinion
\nthat  the  risk note would still apply and the\tcourt  would
\nhave to decide whether misconduct on the part of the railway
\ncan be fairly inferred from the evidence produced by it.  If
\nthe  court cannot fairly infer misconduct from the  evidence
\nadduced by the railway, the burden will be on the respondent
\nto prove misconduct. that burden, if it arises, has  clearly
\nnot  been discharged for the respondent led no\tevidence  on
\nhis behalf to discharge the burden. We therefore turn to the
\nevidence  to see whether from the evidence produced  by\t the
\nrailway a fair inference of misconduct of the railway or its
\nservants can be drawn on the facts of this case.
\n   It  is  not\tin  dispute in\tthis  case  that  the  wagon
\ncontaining the\tconsignment arrived intact at Mughalsarai on
\nDecember  9,  1947.  Besides there is  evidence\t of  Damodar
\nPrasad\tSharma,\t Assistant Trains Clerk,  Mughalsarai,\tP.W.
\n14, who had the duty to receive trains at the relevant\ttime
\nthat  192 Dn. goods train was received by him on line No.  4
\nand  that there were two watchmen on duty on that  line\t for
\nexamining  the goods train and they kept notes of the  same.
\nHe also produced the entry relating to the arrival  of\t the
\ntrain  and  there is nothing in the entry to  show  anything
\nuntoward   with.this  wagon  when  the\ttrain\tarrived\t  at
\nMughalsarai.   His  evidence also shows that the  train\t was
\nsent  to the marshaling yard on December 11,  1947.  Finally
\nthere  is the evidence of Chatterji (P.W. 8) who is also  an
\nAssistant  Trains Clerk. It was his duty to make notes\twith
\nrespect\t to goods trains which left  Mughalsarai. He  stated
\nthat  this wagon was sent by train No. 214 on  December\t 12,
\n1947  in the evening. He also stated that the wagon  was  in
\ngood  condition\t and  produced the entry  relating  to\tthis
\nwagon. It appears however from his evidence that rivets\t and
\nseals are examined by the watch and ward staff and they keep
\nrecord\tof  it.\t Apparently therefore he  did  not  actually
\ninspect the wagon before it left though he says that it\t was
\nin good condition. The relevance of his evidence however  is
\nonly  this  that in his register showing  the\tdispatch  of
\ntrains\tthere is no entry to the effect that there  was\t any
\nthing wrong with this wagon when it was dispatched.
\n   The\tmost important evidence however is of the  guard  of
\nthe  train, Ram Prasad Ram (P.W. 2). He stated\tthat  before
\nthe  train started from Mughalsarai he patrolled both  sides
\nof it  and  the place from where the train started was\twell
\nlighted and watch and ward staff also patrolled the area. He
\nalso  stated that the rivets and seals of all the wagons  in
\nthe  train  were  checked  at Mughal  sarai  and  there\t was
\napparently nothing wrong with them. Now if
\n157<\/span>
\nthe evidence of the guard is believed it would show that the
\nwagon  containing the consignment was intact at\t Mughalsarai
\nupto  the  time 214 goods train including  this\t wagon\tleft
\nMughalsarai.  If  so there would be no reason to  hold\tthat
\nanything  was  done  to\t the wagon  before  the\t train\tleft
\nMughalsarai.  It  may  be mentioned  that  the\ttrial  court
\naccepted the evidence of the guard while the High Court\t was
\nnot  prepared to believe it. On a careful  consideration  of
\nthe evidence of the guard we see no reason why his  evidence
\nshould\tnot  be believed. It is obviously the  duty  of\t the
\nguard  to  see that the train was all right,  when  he\ttook
\ncharge\tof it. It appears that in discharge of his duty\t the
\nguard patrolled the train on both sides and looked at rivets
\nand  seals  to see that they were intact.  It  is,  however,
\nurged that the guard’s evidence does not show that the seals
\nwhich he found intact were the original seals of  Wadibundar
\nand  the  possibility  is not ruled out\t that  the  original
\nseals  might  have been tampered with and new seals  put  in
\nwhile  the train was in the marshaling yard  at\t Mughalsarai
\nfor  two days, as  the evidence of the watch and ward  staff
\nhad not been  produced. It would perhaps have been better if
\nthe  evidence of the watch and ward staff had been  produced
\nby the railway; but if the evidence of the guard is believed
\nthat  the seals and rivets were intact when the\t train\tleft
\nMughalsarai,  the evidence of the watch and ward  staff\t is’
\nnot  necessary. It is true that the guard does not say\tthat
\nthe  seals  were  the original seals of\t Wadibundar  but  it
\nappears\t from the evidence of Jagannath Prasad (P.W. 9)\t who
\nwas  the  Assistant Station Master at  Dildarnagar  that  he
\nfound  when  the  train\t arrived  there\t that  the  northern
\nflapdoors  of the wagon were open while\t southern  flapdoors
\nwere intact with the original seals. This evidence  suggests
\nthat  the original seals could not have been  tampered\twith
\nwhen  the  train  left\tMughalsarai  and  that\tthe  guard’s
\nevidence  that\tseals  and rivets  were\t intact\t shows\tthat
\nnothing\t  had  happened\t to  the  wagon\t while\tit  was\t  at
\nMughalsarai. Further it is also in  evidence  that there  is
\nample light in the marshalling yard at Mughalsarai and\tthat
\nwatch and ward staff is posted there as well. So the chances
\nof  tampering with the seals and rivets in  the\t marshalling
\nyard  in the circumstances are remote. As such the  evidence
\nof  the guard that the seals and rivets were intact when  he
\nleft  with  the train on the evening of December  12,  would
\napparently  exclude  the  possibility  that  there  was\t any
\ntampering  with the wagon before it left Mughalsarai. It  is
\ntrue that on the last day when the evidence for the  railway
\nwas  recorded  and the guard had been recalled\tfor  further
\ncross-examination  it was suggested to him that the  railway
\nservants  at  Mughalsarai  had removed the  bales  and\twere
\nresponsible for the theft. He however denied that. But it is
\nremarkable that if the respondent was dissatisfied with\t the
\nevidence of the guard which was to the effect that the wagon
\nwas  all  right when he left Mughalsarai with the  train  on
\nDecember  12, it did not ask the court to order the  railway
\nto  produce  the evidence of the watch and ward\t staff\twith
\nrespect\t to this wagon while it was in the marshalling\tyard
\nat   Mughalsarai.   The\t respondent  could  ask\t  for\tsuch
\ndisclosure. If the court
\nL\/B(D)2SCI–12
\n158<\/span>
\nhad  accepted  the  request and the railway  had  failed  to
\nproduce the evidence of the watch and ward staff it may have
\nbeen  possible\tto use s. 114<\/a> of the Evidence Act  and\thold
\nthat the watch and ward staff having not been produced their
\nevidence, if produced, would have gone against the  railway.
\nBut  in the absence of any demand by the respondent for\t the
\nproduction  of the watch and ward staff which he  could\t ask
\nfor, we see no reason why the  statement of the guard to the
\neffect\tthat seals and rivets of the wagon were intact\twhen
\nhe  left Mughalsarai with the train should not be  accepted.
\nIn  the\t absence  of any demand by the\trespondent  for\t the
\nproduction of watch and ward staff his mere suggestion\tthat
\nthe railway servants at Mughalsarai might have committed the
\ntheft cannot be accepted.\n<\/p>\n
    There  is the further evidence of the guard as  to\twhat
\nhappened  between Mughalsarai and Buxar. It appears  between
\nthese two stations the train stops only at Dildarnagar.\t The
\nevidence  of  the guard however is that the  train  suddenly
\nstopped\t between  the  warner and  home\t signals  before  it
\nreached Dildarnagar. He therefore got down to find out\twhat
\nthe  trouble  was. He found that the  hosepipe\tbetween\t two
\nwagons\thad  got  disconnected and  this   resulted  in\t the
\nstoppage  of  the train. The evidence further  is  that\t the
\nhosepipe was intact when the train started from Mughalsarai.
\nHe  made  a note of this in his rough memo  book  which\t was
\nproduced. It is noted by him that the northern flap door  of
\nthis wagon was open. He reconnected the hosepipe and went up
\nto Dildarnagar. There he reported the matter to the  station
\nstaff. His further evidence is that there were three escorts
\nwith  the train and that they were guarding the\t train\twhen
\nthe  train  was\t standing between the warner  and  the\thome
\nsignals before it reached Dildarnagar. Nothing untoward\t was
\nreported  to  him  by these escorts. It\t was  at  this\tstop
\nbetween\t the  two signals that the guard  noticed  that\t the
\nrivets and seals of this wagon on one side had been  broken.
\nThe  case  of  the railway is that there was  theft  in\t the
\nrunning\t train between Mughalsarai and Buxar and that is how
\npart of the consignment was lost. The evidence of the  guard
\ndoes suggest that something happened between Mughalsarai and
\nDildarnagar  and  then\tbetween Dildarnagar  and  Buxar.  In
\naddition  to  this  the evidence of  the  station  staff  at
\nDildarnagar  is that the flapdoors of this wagon were  found
\nopen  when  the train arrived at Dildarnagar.  The  contents
\nwere not checked at Dildarnagar as there was no\t arrangement
\nfor  checking  at that station. The wagon  was\tresealed  at
\nDildarnagar, and the fact was noted in the station  master’s
\ndiary. It may be mentioned that the evidence of the  station
\nstaff  was   that  the wagon was resealed though  the  guard
\nsays  that it was riveted also at Dildarnagar. The entry  in
\nthe  guard’s rough memo. however is only that the wagon\t was
\nresealed. The guard certainly says that it was rivetted also
\nat  Dildarnagar\t but that is not supported  by\tthe  station
\nstaff  and the entry in the guard’s rough memo.\t  It   seems
\nthat the statement of the guard may be due to some error  on
\nhis
\n159<\/span>
\npart.  That may also explain why, when the train arrived  at
\nBuxar,\tthe  flapdoor again was found open, for it  had\t not
\nbeen rivitted at Dildarnagar. Then the evidence of the Buxar
\nstation\t staff is that the northern flapdoors of this  wagon
\nwere  open  when  the train arrived at Buxar.  It  was\tthen
\nresealed  and  rivetted and was detached for  checking.\t The
\nchecking  took place on December 14th at Buxar.It  was\tthen
\nfound  that one side had the original seals of\tWadibun\t dar
\nwhile the other side had the seals of Buxar. On checking the
\nwagon, 27 bales were found intact, covering of one bale\t was
\ntorn  and one bale was found loose and slack. This  evidence
\nasto what happened between Mughalsarai and Buxar thus  makes
\nit  probable  that  there was theft  in\t the  running  train
\nbetween\t Mughalsarai and Buxar and that may account for\t the
\nloss of part of the  consignment.\n<\/p>\n
   It is however contended on behalf of the respondent\tthat
\nno   evidence  was  produced  from  Mughalsarai\t asto\twhat
\nhappened  while\t the wagon was in the marshalling  yard\t and
\nthat  the  seal book which is kept at every railway  station
\ncontaining entries of resealing when a wagon is resealed was
\nnot  produced  from  Mughalsarai and  an  adverse  inference
\nshould be drawn from this non- production. We are however of
\nopinion\t that the evidence of the guard to the\teffect\tthat
\nthe  seals  were intact when he left  Mughalsarai  with\t the
\ntrain is sufficient to show that the wagon was in-tact\twith
\nthe  original seals when it left Mughalsarai and  there-fore
\nit  is not possible to draw any adverse inference  from\t the
\nnon-production of the watch and ward staff or the seal\tbook
\nof  Mughalsarai in the circumstances of this case. It  would
\nhave been a different matter if the respondent had asked for
\nthe  production of the seal book as well as the evidence  of
\nthe  watch   and ward staff. But  the  respondent  contented
\nitself\tmerely with the suggestion that a theft\t might\thave
\ntaken place at Mughalsarai which was denied by the guard and
\ndid  not ask the court to order the railway to produce\tthis
\nevidence. In these circumstances in the face of the evidence
\nof the guard and the fact that one seal on the\tsouthernside
\nof  the\t door was of the original station. we do  not  think
\nthat it is possible to draw an adverse inference against the
\nrailway\t on  the ground that the evidence of the  watch\t and
\nward  staff  and  the  seal book  at  Mughalsarai  were\t not
\nproduced. The seal book would have been of value only if the
\nwagon  had been resealed at Mughalsarai but there is in\t our
\nopinion no reason to think that the wagon had been  resealed
\nat Mughalsarai after the evidence of the guard that he found
\nthe  seals and rivets intact when he left  Mughalsarai\twith
\nthe  train.  On\t a careful  consideration  of  the  evidence
\ntherefore we are of opinion that a fair inference cannot  be
\ndrawn  from  the  evidence of the  railway  that  there\t was
\nmisconduct  by\tthe railway or its servants  at\t Mughalsarai
\nduring the time when the wagon was there. If the evidence of
\nthe guard is accepted, and we do accept it, there can be  no
\ndoubt that the loss of the goods took place be-case of theft
\nin the running train  between\tMughalsarai  and
\n160<\/span>
\nBuxar.\tThere is no evidence on behalf of the respondent  to
\nprove\tmisconduct  and\t as  misconduct\t cannot\t fairly\t  be
\ninferred  from\tthe  evidence  produced\t on  behalf  of\t the
\nrailway, the suit must fail.\n<\/p>\n
    We\ttherefore allow the appeal, set aside  the  judgment
\nand  decree  of\t the  High Court and  restore  that  of\t the
\nAdditional  Subordinate Judge. In the circumstances of\tthis
\ncase we order parties to bear their own costs throughout.
\nAppeal allowed.\n<\/p>\n
161<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Union Of India vs Mahadeolal Prabhudayal on 23 February, 1965 Equivalent citations: 1965 AIR 1755, 1965 SCR (3) 145 Author: K Wanchoo Bench: Wanchoo, K.N. PETITIONER: UNION OF INDIA Vs. RESPONDENT: MAHADEOLAL PRABHUDAYAL DATE OF JUDGMENT: 23\/02\/1965 BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. MUDHOLKAR, J.R. SIKRI, S.M. CITATION: 1965 AIR 1755 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-256308","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnion Of India vs Mahadeolal Prabhudayal on 23 February, 1965 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/union-of-india-vs-mahadeolal-prabhudayal-on-23-february-1965\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Union Of India vs Mahadeolal Prabhudayal on 23 February, 1965 - 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