SHEO NARAIN Vs. EAST INDIAN RAILWAY

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiff-appellant, Sheo Narain, against the E.I. Ry. Co. for damages on account of the failure of the defendant to deliver a consignment of ghee in its entirety, The consignment consisted of some bags of rice and 185 tins of ghee, each containing 20 seers, despatched at Maihar for delivery to the plaintiff at Allahabad. It is common ground that the consignment was in a wagon that arrived safely at Allahabad with the seals intact on 22 April, 1923. The evidence shows that the wagon was in the goods-shed on 27 April 1923. It is not clear whether it was kept outside up to that date. On that date the chaukidar reported that its seals were broken. The goods were checked on the 2 May, 1923, and found short. They were delivered to the plaintiff on 2 May, 1923. The shortage was as follows: 13 tins were missing and in three other tins the amount of ghee was only eight seers instead of 20 seers. The value claimed was Rs. 561-5-0. The defence was that the consignment was despatched under a risk-note form B which protected the railway company from any loss occasioned otherwise than by wilful neglect and that there had been no wilful neglect on the part of the railway company or on the part of its servants. The trial Court held that in the circumstances of the case it was for the defendant to prove that the railway company had taken such care of the goods in dispute as a man of ordinary prudence would have taken. It found that the theft of the ghee occurred after arrival at Allahabad station and came to the conclusion that it was due to theft by the railway servants. It gave a decree for the loss of the contents of the 13 tins of ghee, but dismissed the claim as to the shortage in the three tins, holding that the railway company was protected by the risk-note from responsibility for this shortage.

(2.) In appeal, the Additional Subordinate Judge of Allahabad set aside the decree of the trial Court and dismissed the suit on the ground that the burden of proving wilful neglect or theft by the railway administration or its servants was on the plaintiff and he had failed to sustain this burden.

(3.) In this second appeal the six grounds taken in the memorandum of appeal have not been argued. The only ground taken is that the lower appellate Court came to a wrong conclusion by incorrectly placing the burden of proof of wilful neglect on the plaintiff. There is, however, one ground, namely, the fifth, in the memorandum of appeal which takes up the broad plea that the defendant was not protected by the risk-note. The counsel for the defendant-respondent raised no objection to the appeal being argued on the lines stated. Accordingly we think it permissible to decide this appeal on the question whether the lower appellate Court's dismissal of the suit was vitiated by incorrect placing of the burden of proof. At the same time we would point out the extreme risk run by an appellant in formulating the grounds of appeal absolutely at random and then asking the Court to interfere with the decree of the lower appellate Court on a different ground.