UNION OF INDIA Vs. GIRRAJ PRASAD

JUDGEMENT

(1.) THIS is an appeal by the defendant against the judgment and decree of the District Judge, Bharatpur dated the 24th November, 1949.

(2.) THE plaintiffs' claim in the trial court was that on the 30th November, 1946, a consignment of seventeen iron pipes belonging to them was despatched from New Delhi Railway Station to Bharatpur under Invoice No. 97 R. R. No. 7857/63, that the goods should have reached Bharatpur ordinarily on the third day but instead of the goods being sent to Bharatpur they were misdirected to Gwalior, that when the plaintiff went to Gwalior he was told by the Station Master that the goods will be despatched when open wagons would be available, that the goods could not be delivered till the date of the suit on account of negligence or carelessness of the Railway and that a decree for Rs. 1329/8/- should be given against the defendant to compensate the plaintiffs, for their loss. THE defendant traversed the suit and raised several objections, whereupon the following issues were framed - 1. Whether the cost of the pipes is Rs. 1329/8/- and the plaintiffs are entitled to recover them? 2. Whether notice under sec. 80 C. P. C. was issued? 3. Whether notice under sec. 77 Indian Railway Act was given? Was it necessary? What is its effect? 4. Has this court no jurisdiction to try this case? 5. Whether Sadhu Ram is a partner in the firm of Girraj Prasad Babu Lal? 6. Is the suit within time? 7. Has the plaintiff right to sue? 8. To what relief the plaintiffs are entitled? THE trial court decreed the entire suit. This case was once heard in appeal by another Bench of this Court in January, 1951. It was argued at that time by the defendant-appellant that the trial court had given no finding on issue No. 7 regarding the plaintiffs' right to sue and thereupon the case was remanded to the trial court after clarifying the issue in the following language: - "whether the railway receipt was endorsed by Nigam Brothers in favour of the plaintiffs and they had a right to sue?

(3.) IN the case of Gopi Ram Gouri Shankar vs. G. I. P. Railway Co. (8) (A I. R. 1927 Pat. p. 335.), four bales out of six bales consigned by the plaintiff were deli-vered on a certain date while the others could not be delivered and therefore, he had brought a suit for compensation. Under these circumstances, it was held that - "in a suit for non-delivery, where no portion of the consignment has been delivered, it is sometimes necessary to take evidence on the question of when the consignment ought to have been delivered, which must in any case be regarded as a question of fact, but where a great part of a consignment has been delivered on a certain day, there is ordinarily no necessity to enter into evidence on the question of when the balance of the consignment ought to have been delivered, because the time when the consignment as a whole ought to have been delivered is manifestly the time when the greater part of the consignment arrived at its destination. "