P.N.Bakshi, J. - (1.) A clear question of law is involved in this Second Appeal.
(2.) IT appears that a consignment was booked through the North Eastern Railway on 30th April, 1955 by M/s. Gobardhan Sahu Bijli Sahu of 7 bales and eight bags of chewing tobacco leaves under Railway-Receipt No. 494724, from Bhagwanpur Railway Station for carriage and delivery to the consignee Sheikh Faquirullah. The consignment reached the destination station in a pilfered and damaged condition which the plaintiff attributed to the negligence and misconduct of the Railway Administration. The plaintiff claimed open delivery which was at first refused but was subsequently agreed to be given by the Commercial Inspector. The goods were inspected and re-weighed. IT appears that after the reweighment the plaintiff desired to endorse the condition of the consignment in the despath register. He was allowed to do so by the Inspector, but when he desired to endorse an objection that the bag had been cut, the Inspector objected and withdrew the despatch register from his possession. He was not allowed to make this endorsement, the plaintiff, therefore, refused to take delivery and brought the instant suit for the recovery of Rs. 6494. 10 P. In defence the Union of India through the North-Eastern Rly. pleaded that the goods had reached in sound condition, that the shortage, if any, was due to defective packing condition and dryage of the Tobacoo leaves, and the plaintiff was not entitled to any relief. The trial court dismissed the suit of the plaintiff and the lower appellate court has endorsed that decree. It appears that before the lower appellate court an argument was raised by learned counsel appearing on behalf of the plaintiff that the consignee had a legal right to make whatever endorsement he desired on the delivery book and that the refusal of the Railway-Administration viz. the Commercial Inspector to allow such an endorsement to be made thereon, was an illegal act on his part, as a result of which the plaintiff was in law entitled to refuse to take delivery of the goods. On this question, the lower appellate court was of the view that the plaintiff had no right to insist upon taking delivery of the goods only when he was allowed to make an entry about the condition of the consignment on the delivery book. In other words, the Civil Judge came to the conclusion that the plaintiff had unjustifiably refused to take delivery of the consignment in question. With regard to the quantum of damages, the Civil Judge has, on a consideration of the evidence, assessed them at a sum of Rs. 2564/22P. This perhaps, he did, as a matter of abundant caution to avoid a remand of the case to him if the questions of law involved in the appeal were decided contrary to his conclusion.
(3.) I have heard learned counsel for the parties at length and have also perused the Impugned orders and the evidence on record. As I have mentioned above the clear question of law is whether a consignee is entitled to make an endorsement with regard to the condition of the consignment on the delivery register of the Railway Administration on reweighment of the consignment at destination station before effecting delivery of the goods. Counsel for the appellant has cited a number of cases before me. He has referred to two decisions of our Court which I shall deal hereinafter. The earlier decision cited by him is The Rohilkhand and Kumaon Railway v. Ismile Khan, 13 ALJ 417 decided by Piggott, J. In that case a consignment of tins of Ghee had been sent to the plaintiff at Bareilly. When he went to take delivery he found that one of the tins had been cut open and other were leaking. He refused to take delivery unless the Co. weighed the goods in his presence and made a note of the shortage of weight on the back of the Railway Receipt. The Co. servants did not allow him to do so. The goods deteriorated and were put to auction. The plaintiff brought a suit for damages. It was held by the court that the Company servants were bound to offer to the consignee reasonable facilities for weighing the goods on the spot. Reliance in this judgment was also placed upon an earlier case of this Court reported in 11 ALJ 772 and it was observed that the consignee was entitled to have the goods weighed there and then before he surrendered the Railway Receipt. After the weighment had been done the consignee was also entitled to endorse on the back of the Railway Receipt the actual shortage of weight in the goods of which he had taken delivery.;