SHIV SHANKAR PRASAD Vs. UNION OF INDIA

JUDGEMENT

(1.) The plaintiff has preferred this Second Appeal against a judgment of reversal The suit was for realisation of a sum of Rs. 6897.96 Paise, which the plaintiff is said to have sustained loss because of the negligence of the carrier, namely, the railways.

(2.) For the purpose of disposal of this appeal there is no need of setting out the facts of the case. Suffice it to say that the plaintiffs suit was decreed against which the defendant railway preferred the appeal, and the judgment of the lower court was set aside on merit. The appellate court, however, held under issue No. 4 that the written statement filed by the railways was not properly verified and, therefore, the defence taken in the written statement, could not be looked into.

(3.) The substantial question of law framed at the time of admission of the appeal is whether after having found that the written statement filed in the case was not proper and the defence taken in the written statement could not be taken notice of, the lower appellate court has committed an error of law in accepting the evidence of the defendant to rebut the averment made in the plaint regarding the validity of the notice under Section 78-B of the Railways Act or Section 80 of the Civil P. C. and in so doing whether the lower appellate court was correct in disbelieving the case of the plaintiff, that notices were not served.