FAZAL ILAHI Vs. EAST INDIAN RAILWAY COMPANY

JUDGEMENT

(1.) The following facts are established on the evidence. Fazal Ilahi is a dealer carrying on business in Allahabad. He deals in fire-works as well as in other articles. Previous to the Shabbarat fastival of the 5 June, 1917, he proceeded to various centres of trade, to purchase fire-works. He went to Calcutta, Bombay, Benares and Cawnpore. He finally purchased four boxes of Chinese crackers in Cawnpore, each of which contained 1,600 packets. He consigned these four boxes at the Collectorganj Parcels Office of the East Indian Railway Company, Cawnpore, to himself at Allahabad, by a parcels forwarding note, dated the 30 of May, 1917, in which the consignment is described as "four boxes said to contain patakha fire-works" i.e., Chinese crackers He signed the forwarding note giving as his address Chauk, Cawnpore. This was apparently the address at which he was staying while he was in Cawnpore. His permanent address is in Allahabad.

(2.) He booked the consignment at the parcels office and paid Rs. 3-8 in advance at parcels rates. The weight was two maunds and 29 seers. The consignment was booked on the 30 of May, 1917. A receipt was given to Fazal Ilahi, No. 3808, dated the 30 of May, 1917, Exhibit 2. Fazal Ilahi's intention was to sell the crackers in Allahabad before and at the shabbarat. Having consigsned the packages he went to Allahabad. The consignment not arriving, he sent two telegrams on the 2nd of June, 1917, one to the Divisional Traffic Manager, Cawnpore, and the other to the General Traffic Manager of the East Indian Rail way, Calcutta. On the 8 of June, 1917, the Station Master, Allahabad, wrote in Exhibit 3 to Fazal Ilahi that the packages were still lying at Cawnpore, as they could not be sent by passenger train under the Railway regulations. The packages had been booked to be sent by passenger train as they were booked at the parcels office at parcels rates. The Station Master directed Fazal Ilahi either to remove the packages or authorize their despatch by goods train. On the 13 of June, 1917, the Divisional Traffic Manager, Cawnpore, wrote to the appellant in Exhibit 4, that the consignment had been incorrectly booked by passenger train under a misapprehension induced by his representations at the time of booking. This letter repeated the directions to remove the consignment, or authorize its despatch by goods train. On the 14 of June, 1917, the Station Master, Cawnpore, sent Fazal Ilahi a reminder in continuation of Exhibit 3. On the 19 of June, 1917, the General Traffic Manager, Calcutta, replied in Exhibit 6 to Fazal Ilahi's telegram. In this letter he stated that the rules for the carriage of explosives were framed by the Government and that the Company had no authority to depart from them, and that the appellant had been advised on the day on which he tendered his consignment that the goods could not be despatched by passenger train. He further informed him that the goods were still at Cawnpore and concluded by adding these words "instructions have been issued to send them by goods train and you will be advised as to their despatch by the Divisional Traffic Manager, Cawnpore." Fazal Ilahi taking no action, the goods were despatched by goods train to Allahabad on the 23 of June, 1917, and arrived on the 28 of June, 1917. Fazal Ilahi was called on to pay Rs. 19-9-0 freight charge as a condition precedent to receiving the goods. He refused to pay the amount or to take delivery. A notice, dated the 25 of August, 1917, was issued to Fazal Ilahi by the Company, that if he did not take delivery after paying the charge, before the 20 of September, the goods would be sold by auction. He did not take delivery or pay the charge and the goods were sold by auction on the 20 of September, 1917, for Rs. 31.

(3.) Fazal Ilahi institute a suit on the 20 of November, 1917, in the court of the Munsif, Allahabad, claiming Rs. 400 for price of goods, Rs. 500 damages, Rs. 3-8 paid for railway freight. Rs. 1-12-6 expenses for despatch of telegrams and Rs. 3- 6 notice charges, in all Rs. 905-8-0. The East Indian Railway Company replied that Fazal Ilahi knew that the consignment could not be despatched by passenger train and fraudulently induced their employes to accept the consignment for despatch by passenger train, that, their servants having acted outside the scope of their authority, no contract had come into being, that the damages were excessive, that the articles were not worth more than Rs. 75 and that the Company were obliged under the rules to take no action and were not responsible. The Company offered to pay to the appellant without prejudice RS. 31, the sale proceeds of the fire- works, and Rs. 3-8-0 the freight charges already paid, less Rs. 19-9-0 the freight charges incurred. In the course of the evidence it came out tint there was no justification for the allegation of fraud made against Fazal Ilahi. A clerk of the Halsey Road agency, Cawnpore, was called, who deposed that on the 30 of May, 1917, a man unknown had come to that agency and endeavoured to book a consignment of four packages of Chinese crackers by passenger train, and that he informed this man that such a consignment could not be sent by passenger train. As this witness was unable to identity the man in question as Fazal Ilahi or to connect the man with Fazal Ilahi, the Company failed to prove by calling this witness any knowledge on the part of Fazal Ilahi that the consignment could not be sent by passenger train, or any fraud on his part. There was no other evidence to prove fraud. The evidence of the railway officials showed that the parcels office at Collectorganj was in charge of a senior clerk called Nand Lal. Munni Lal, a beginner, was working under Nand Lal. Robertson, a Goods Inspector, and Fitzgerald, an Assistant Traffic Inspector, were on duty in the precincts of the office. On the evidence, Fazal Ilahi came to Nand Lal and asked him to book the packages at parcels rates by passenger train. Nand Lal refused to do this. Fazal Ilahi went to Fitzgerald. Fitzgerald ordered the parcels clerk to book the packages, On Fitzgerald's orders, Munni Lal booked the packages and gave Fazal Ilahi the receipt Exhibit 2, receiving Rs. 3-8. Fazal Ilahi left the packages and went away. Robertson then refused to despatch the goods. There is some conflict between Nand Lal and Munni Lal, In spite of that conflict, this is the finding at which I arrive on the facts, the point not having been determined by the courts below. I determine it under Section 103 of the Civil P. C.. Fitzgerald, who gave evidence, has deposed that he was ignorant at that time of the fait that such a consignment could not be despatched by passenger train. Robertson was in the right in not despatching the consignment by passenger train, for under the rules for the conveyance of explosives by rail, which are binding under the law, Chinese crankers cannot be sent by passenger train. The Munsif did not decide whether there was or was not a valid contract. He found that Fazal Ilahi had incurred no damage and had committed no fraud. He gave Fazal Ilahi a decree for Rs. 14-15- 0. Fazal Ilahi appealed. The learned Subordinate Judge heard the appeal. He decided that there was no valid contract, that the parcels clerk had acted beyond the scope of his authority, that the Company was under no obligation to despatch the consignment to Allahabad or to claim freight charges for having done so. Finding that the Company was guilty of no negligence and that the sale was justified, he raised the relief to Rs. 34-8-0 only. Fazal Ilahi comes here in second appeal.