GOVERNOR GENERAL IN COUNCIL Vs. AMILAL

JUDGEMENT

(1.) This is a petition in revision by the defendants against a decision of the Subordinate Judge, Dhanbad exercising Small Cause Court powers decreeing a suit for damages on account of shortage in a consignment of ghee consigned by the plaintiffs-opposite party.

(2.) The circumstances leading to the suit are as follows: 11 tins of ghee weighing 5 maunds and 10 seers were consigned under invoice No. 5 on 14-10-43 at Teghra on O. & T. Railway for conveyance to Kumardubi station on the E.I. Railway for delivery to the plaintiffs, who were the owners and the endorsee consignees. The consignment was delivered at Kumardubi on 2-11. 43. According to the plaintiffs case 5 or the 11 tins were received open and there was a shortage of 1 maund 34 seers of ghee. The claim for damages was based on an allegation of wilful negligence, default, misconduct and lack of care on the part of the railway administration. The consignment was sent under risk notes A and B. Separate written statements were filed on behalf of the two railway administrations concerned but a common defence was taken. Liability was denied on the allegation that there was no negligence, wilful or otherwise, on the part of the railways concerned and no misconduct. At the hearing, for the first time, it was contended that the provisions of Section 80, Civil P.C. had not been complied with and so the suit was incompetent. On the facts the Subordinate Judge held that the shortage was due to misconduct on the part of the railway servants. On the point of law, he held that, although the notice under Section 80 was not good and valid, the defendants could not be allowed to take the objection at a time when it was no longer open to the plaintiffs to serve notice in due compliance with the section and institute a fresh suit.

(3.) Three points have been argued before me. The first is that, Section 80, Civil P.C. not having been complied with this suit was not maintainable. The second is that the finding of misconduct is speculative and not based on evidence and the third is that the Subordinate Judge erred in law in granting interest prior to the institution of the suit.