TUGUN RAM Vs. DOMINION OF INDIA

JUDGEMENT

(1.) THIS appeal by the plaintiff is directed against the judgment and decree of the learned Additional Civil Judge, Allahabad, dismissing his suit.

(2.) THE facts involved in this appeal lie within a narrow compass and for the most part are not in dispute. It appears that on the 4th of September 1948 Tugun Ram, proprietor of Tugun Rarn Shriniwas purchased 79 bags of betel nuts from a place known as Bhola in East Pakistan and booked the same with the River Steam Navigation Company Ltd., and the India General Navigation and Railway Company Ltd,, defendants 2 and 3, at Bhola for carriage to, and delivery to him, at Allahabad. When the consignment was delivered to the plaintiff at Allahabad, it was found that 37 bags of betel nuts, weighing 74 maunds were missing, and of the remaining bags one had been cut and restitched and on weighing was found to be short by 1 maund and 4 seers for which the necessary short certificate was issued to the plaintiff. Thus the plaintiff received 75 maunds 4 seers less of betel nuts which he alleged caused him a loss of Rs. 9169/3/- at the prevailing market rate of Rs. 122/- per maund. As the consignment passed over routes operated upon by the River Steam Navigation Company Ltd., and the India General Navigation and Railway Company Ltd., i. e. defendants 2 and 3, and the E. I. R. administration, i.e. defendant No. 1 in addition to the East Bengal Railway, Pakistan, the plaintiff after giving the requisite statutory notices to defendants 1 to 3 brought the suit giving rise to this appeal for the recovery of Rupees 9169/3/- from them.

(3.) THE appeal first came up for hearing before Gyaneridra Kumar, J., and it was contended before him that the trial Judge's view regarding the liability of defendants 2 and 3 for the loss caused to the consignment whilst in the custody of the East Bengal Railway was erroneous. THE contention found favour with the learned Judge -- as is apparent from his Referring Order -- but finding himself faced with the decision of Dwivedl, J. in First Appeal No. 166 of 1955 (All), in which on similar facts a contrary view was taken, he had So option but to refer the appeal to a larger Bench and it is in these circumstances that this appeal has come up before us for hearing.