DOMINION OF INDIA REPRESENTING THE EAST INDIAN RAILWAY ADMINISTRATION AT NEW DELHI Vs. JAMUNADAS AGARWALLA

JUDGEMENT

(1.) THIS appeal has been strenuously argued by Mr. Ghose on behalf of the defendant. But having heard his argument I am satisfied that it is not possible for me to interfere in second appeal with the finding that "the holes in the 20 tins could have been made only with the connivance or active participation of the Railway servants". It is argued that there is no evidence whatsoever in support of this finding. I then turned to the grounds of appeal and found that there was no ground taken to that effect, and there is no certificate as required by Rule 9, Ch. VII, page 33 of the High Court Rule, that the advocate who prepared the grounds had examined the record, and, in his opinion, there is, in fact, no evidence whatsoever to support the finding. For these reasons I decline to consider as to whether there is not evidence in the case in support of that finding. It must be assumed that there was evidence and although it might be circumstantial evidence the Courts below have concurrently come to that conclusion. Indeed, the rule of res ipsa loquitur fully applies to the facts found, namely, that 20 tins were found with holes bored into them. It cannot be assumed that the consigner would hand over the tins in this condition, otherwise all the oil would flow out through the holes. It is, therefore, obvious that the holes in the tins were made after the goods came in the railway custody e. g., in the godown itself. Unless I go through the whole record it is not possible to find oat on what evidence the finding is based. (The rest of the judgment is not material for the purposes of reporting.)