Suhrawardy, J - (1.)This is an appeal by the Secretary of State representing the E.I. Ry. Co., arising out of a suit for the price of goods lost in transit by the railway company. The plaintiff's case is that he sent two consignments of Benares cloths" from Moghal sarai to Howrah under two prepaid railway receipts, one consignment consisting of one parcel and the other containing two parcels, for street delivery in the city of Calcutta. The first consignment consisting of one parcel was entirely lost and one of the parcels of the second consignment was also lost. Only one parcel of the second consignment was delivered to the consignee. On these facts the plaintiff claimed damages as the value of the goods lost while in the custody of the railway company. The defendant raised various objection's on which two main issues arose and were tried by the Court below: (1) whether the missing packages did not contain silk of the value of more than Rs. 100 in each of the consignments.; and (2) whether the defendant did not fail to do his duties under Section 151, Contract Act. The learned Subordinate Judge in the trial Court found on issue 2 that the loss was due to the negligence and carelessness on the part of the railway company. On issue 1 "he held that the evidence and circumstances of the case did not satisfy him that the lost parcels did not contain silk.
(2.)In this view he dismissed the suit. On appeal the learned Additional District Judge of Howrah agreed with the trial Court on the finding relating to the negligence of the railway company. On issue 1 he was however of opinion that the onus lay entirely on the defendant to prove that the lost parcels contained silk cloths and as he failed to discharge it, the plaintiff's suit must be decreed. The defendant has appealed, and we will have to sea whether the view of the law taken by the lower appellate Court is correct. It is not disputed that the parcels were sent at the ordinary railway parcels. rate.
(3.)The learned Judge in the Court of appeal below did not consider the plaintiff's evidence on issue 1 and the criticizm of it by the learned Subordinate Judge. In his opinion the defendant can escape only by proving that the lost package contained silk cloth of the value of more than Rs. 100 and as the defendant has failed to prove it, ha is liable for the amount claimed, the onus lying entirely upon him. After giving my anxious thought to the question raised, I have come to the conclusion that the position is by no means so clear as the learned Judge seems to think.