DOMINION OF INDIA Vs. JOKHIRAM AGARWALLA

JUDGEMENT

(1.) This is an appeal against the appellate judgment of the Subordinate Judge of Darjeeling affirming that of the Munsif of Kurseong. The facts, as far as at present ascertained, may be clearly stated as follows:

(2.) Messrs. E. Spinner and Co. of Bombay despatched a bale of clothes containing various kinds of textile materials from Wadi Bandar, Bombay, on the G.I.P. Railway, to the Plaintiff at Kurseong, on the Darjeeling-Himalayan Railway, on July 16, 1942. The consignment never reached Kurseong and was never delivered to the Plaintiff. The Plaintiff, therefore, sued for recovery of compensation for non-delivery of the goods booked to him.

(3.) The defence was that the consignment arrived at Mokameh Ghat on August 1, 1942, and was unloaded on the following day, the reason given being that restrictions had been imposed on traffic of goods to Kurseong by the Darjeeling-Himalayan Railway, as there was a breach at Loop 2 due to landship and, therefore, all inward booking through that line had been stopped. As a result of this, the B. and N.W. Rly., now the Oudh and Tirhut Railway, could not further despatch the goods beyond Mukameli Ghat and the goods were detained there. This part of the story has not been accepted by both the courts and must now be taken as final. Both the courts have found that the railway company failed to prove any such written message from the Darjeeling-Himalayan Railway restricting transit of goods. Oral evidence was given on behalf of the Defendant, the Dominion of India representing the East Indian Railway administration to prove this. That oral evidence, for reasons discussed in both the judgments, was disbelieved. We must, therefore, proceed upon the finding that, through negligence, the Bengal and North-Western Railway detained the goods at Mokameh Ghat from August 1, 1942. It appears that a serious civil commotion, almost putting an end to British rule, broke out in that part of Bihar about August 13, 1942. This is called the 1942 rioting. As a result of mob violence, the goods were looted and, therefore, they were not sent on and were not delivered to the consignee the Plaintiff, Jokhiram Agarwalla.