PHULCHAND KHANDELWAL Vs. GOVERNOR GENERAL FOR INDIA COUNCIL

JUDGEMENT

(1.) This second appeal is by the plaintiffs against a judgment of reversal.

(2.) The plaintiffs filed money suit No. 172 of 1914 in the Court of the Subordinate Judge at Dhanbad claiming Rs. 2679-4-0 for non-delivery of two consignments of goods despatched by them, one from Manpur and another from Gaya, the destination in both the cases being; the same, namely, Dhanbad. The defendant in the suit was the Governor-General for India in Council representing the East Indian Railway Administration. The claim with regard to one of the consignments was Rs. 1945, while with regard to the other it was Rs. 734-40, the two making up a total of Rs. 2679-4-0 as already mentioned. So far as the claim for Rs. 734-4-0 was concerned, it was not pressed. The learned Subordinate Judge decreed the suit of the plaintiffs appellants so far as the claim for RS. 1945 was concerned. It was admitted by the defendant that the goods were made over to the Railway Company and that they reached their destination and were kept in the goods-shed at Dhanbad. Non-delivery was also admitted. In appeal before the learned District Judge of Manbhum two points were pressed on behalf of the defendant. The first point pressed before him was that the provisions of Section 80, Civil P.C. were not complied with. The other point urged before the first appellate Court was that there was nothing on the record to show that there was negligence on the part of the Railway Company. In this connection the risk-note (Form A) under which the goods were booked was relied on. The learned District Judge while dealing with the first point urged before him observed that the provisions of Section 80, Civil P.C. were not complied with. He also held that the evidence did not conclusively establish that there was negligence on the part of the defendant. In the result the learned District Judge allowed the appeal and dismissed the suit. Hence this second appeal.

(3.) On behalf of the appellants it has been contended that the learned first appellate Court decided the appeal without paying due regard to the pleadings of the parties. One of the important features of the plaint is that in para. 6 it is clearly stated that the non-delivery of the goods was due to the negligence and misconduct on the part of the Railway Administration and its employees. In para. 8 of the plaint there is mention of notices under Section 80, Civil P.C. having been duly sent to the defendant claiming compensation for the loss of the goods. It is also stated therein that these notices were duly served. In the written statement filed on behalf of the defendant it is admitted that the goods in question were booked, that they arrived at their destination and that they could not be delivered. Notices under Section 80, Civil P.C. relating to the first consignment was admitted to have been served. As regards the other consignment, the claim in respect of which was not pressed, it was stated in para. 7 of the written statement that no such notice was received. Paragraph 9 of the written statement is important. In this paragraph the defendant expressed his readiness and willingness to pay reasonable compensation for the loss of the consignment. The only thing that was challenged was that the weight of the consigment being only 2 maunds and 20 seers as recorded in the relevant railway receipt, it is not probable that the consignment contained 100 pairs of dhotis "and 22 sheets of long-cloth as alleged by the plaintiffs. The price claimed for the dhotis and long-cloth was also said to be "high and exorbitant."