Decided on September 21,1954



- (1.) THESE two appeals arise out of a suit instituted by the appellant firm Gordhan dass-Baldeo Dass of Delhi as long ago as 1944 claiming Rs. 3,500/- as damages from the Governor-General-in-Council, though five other firms of Delhi were also impleaded as defendants. The plaintiff was granted a decree by the trial Court for rs. 2,681/1/- subject to certain conditions regarding the goods which were lying with the plaintiff. Two appeals were preferred in the Court of the District Judge, one by the Government against the above decree and one by the plaintiff for the balance of Rs. 818/15/- which had been dis-allowed by the trial Court out of the plaintiff's claim. The learned District Judge dismissed the plaintiff's appeal and accepted that of the Government with the result that the plaintiff's suit was dismissed in toto. The plaintiff filed two separate appeals in the High Court at lahore. Apparently these appeals were filed on different dates and one of them, namely No, 1204 of 1947, which challenged the dismissal of the plaintiff's appeal for the disallowed portion of his claim, was clearly barred by time, and is liable to be dismissed on that ground alone.
(2.) BRIEFLY the facts o the case are that on the 22nd of February 1943 the Arvind mills of Ahmedabad despatched by rail two consignments of cloth each consisting of two bales to two different firms at Delhi. One of the consignments was covered by Railway Receipt No. 21296 and the Railway Mark given to the consignment was 7238/2 while the other consignment was covered by Railway Receipt No. 21295 and the Railway Mark 7236/2. By mistake on the part of the Assistant Goods Clerk at Ahmedabad the Railway Mark 7238 was entered in both the Railway Receipts. The plaintiff firm purchased the consignment covered by Railway Receipt No. 21296 of which the Railway Mark was really 7238/2 from the consignee before delivery was taken. However, before representative of the plaintiff firm went to the Goods Office to take delivery of the consignment thus purchased the consignment marked 7238/2 had already been delivered to the consignee of the consignment really marked 7236/2 but wrongly entered in the relevant receipt under the former number. There was some difficulty about removing the consignment by the plaintiff's representative, but according to the evidence he insisted that the consignment which had remained undelivered was the proper one, and the difficulty was surmounted by altering the number in the Railway Receipt to 7236/2.
(3.) THE suit was instituted in January 1944 by the plaintiff against the Government as representing the B. B. and C. I. Railway and against the firm which had wrongly taken delivery of the consignment actually purchased by the plaintiff, and also the firms through whom the plaintiff had purchased the consignment. The plaintiff claimed the full value of the consignment purchased by him and wrongly delivered to the firm Messrs. A. R. Sethna. According to the terms of the risk note under which the consignment purchased by the plaintiff was carried by the railway, the plaintiff was only entitled to claim damages against the railway on proof of misconduct by any servant of the railway. The trial Court held that the mistake of the Goods Clerk in wrongly entering the Railway Mark of one of the consignments in the Railway Receipt amounted to misconduct, and granted the plaintiff firm a decree for the price of the goods consigned to him as shown in the invoice, subject to certain adjustment as regards the goods lying with the plaintiff which were really consigned to the firm Messrs. A. R. Sethna. The learned District Judge held that the clerk's mistake did not amount to misconduct and therefore held that the plaintiff's suit was liable to be dismissed altogether.;

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