MOOLJI SICKA AND CO Vs. BNRY CO LTD

JUDGEMENT

(1.) In this case a Rule was issued calling on the B. N. Ry. Co. to show cause why the order of the learned Judge of the Small Cause Court, Sealdah, dismissing the petitioner's suit for dam- ages on account of the destruction by fire of goods made over to the company at Pendrai for dispatch to Gondia on 3 May 1929 should not be set aside. The Rule was granted on the ground that the finding of the Court below was without reference to material evidence, namely, the documentary evidence in the case, the evidence on the defendant's side and the admissions made in the written statement and in the correspondence. I have looked through the evidence referred to and have found that the only important point arising out of the documentary evidence in favour of the plaintiff is the fact that the plaintiff had ascertained that waggons were available and was allowed to stack 81 bags of biri leaves for dispatch to Gondia outside the goods shed on 3 May and a further 69 bags on 4 May. The learned Judge states that nobody corroborates any of the allegations of plaintiff's witness 1 and does not refer to the correspondence. It seems likely therefore that in fact he did not consider whether there was any corroboration in the correspondence. The learned Judge was, of course, not obliged to refer to the [evidence under Order 20, Rule 4, but if he does so and his reference indicates that he did not consider a material portion of the evidence I think this Court is entitled to interfere. In the present case it seems that the learned Judge in the Court below ought to have considered whether apart from the making over of the consignment note the conduct of the Station Master or the station staff indicates that these bags were received by the company for dispatch. This case has been pending for a long time otherwise I might have felt inclined to send it back for a rehearing from this point of view. But all the evidence offered on this point is on the record and the petitioner having been given an opportunity of putting the evidence before me, I think that I should dispose of the matter here. Issue 1 was: Did the plaintiff's man deliver to the Station Master at Pondrai 150 bags of biri loaves and were they accepted by the said Station Master on 3 May 1929.

(2.) Issue 2 was can the plaintiff got damages for nondelivery of those bags." Issue 1 was decided against the plaintiff and it was therefore not necessary to decide issue 2.

(3.) As to the conduct of the Station Master the learned Judge in the Court below says: I get from the Station Master that Pandwe Rang did not give him any consignment note nor the bags on 3 May 1929, nor were they accepted by him nor did he get....the bags carried to the godown.