- (1.) S. K. Phaujdar, J. The appellant had initiated Original Suit No, 203 of 1967 in the Court of Munsif Saidpur at Ghazipur for recovery of damages amounting to Rs. 280. 33. It was stated that for his medical profession the plaintiff had purchased 26 cases of medicines weighing 4 quintals from defendant No. 2 and the same were consigned on 11-6-66 by defendant No. 2 to the Northern Railway at Hardwar Railway Station for carriage to Ghazipur City in safe and sound conditions. When the consignment reached the destination it was found pilfered and short delivery was effected on 9. 5. 66 under protest. It was stated that 5 cases of medicines were found pilfered and medicines were removed therefrom. Open delivery was taken for these cases and respective weights were taken. It was alleged that this short delivery was caused due to negligence and misconduct of the servants of the Northern Railways and North Eastern Railways and the plaintiff suffered a loss of Rs. 256. 95 due notices were given under the Civil Procedure Code and the Northern Railways Act and thereafter the suit was filed.
(2.) THE suit was contested by the Union of India but defendant No. 2 did not contest the suit and it was heard ex-pane against him. THE notices served on the Union of India was described as invalid and time barred. It was stated that the plaintiff had no cause of action and there was no negligence or misconduct on the part of the servants of the railway administration and the defendants were not liable for any loss, if caused to the plaintiff. THE consignor had not followed the Railway Rules for packing the materials and it was the consignor who would be liable further loss and not the Railways. Issues were framed touching the question of validity of the notices, limitation and on the point of entitlement of the plaintiff to the relief and liability of the defendant No. 1 for the same. The issues were decided in favour of the plaintiff by the trial Court and the suit was decreed by the judgment and decree dated 1. 1. 1972. The Union of India preferred a First Appeal C. A. No. 92 of 1972 impleading the plaintiff as also defendant No. 2 as respondents. Two points were canvassed by the Union of India in the first appeal. It was urged that the notice under Section 78 of the Indian Railways Act was not served at all and if at all the same was served, it was not within the statutory period of 6 months from the date of booking of the consignment. It was also urged the Railways had delivered 26 packets to the plaintiff in their original condition of packing in which they were delivered to the Railway Authorities. The appellant was not liable for the loss of weight of the consignment when the contents of individual packets were not supervised by the railway authorities at the time of the packing of consignments and when plaintiff did not allow the consignment to be weighed in order to work out the shortage if any as against the total weight of these packets. The first point was decided against the Union of India. As regards the other points agitated before the first Appellate Court, it was held that the consignment booked on 1. 11. 66 had reached the destination station on 2. 2. 66. The plaintiff applied for open delivery although 21 packets of consignment were accepted by him on 9. 8. 66 without weight. He claimed weighment for the rest five packets only. Open delivery was taken on 10. 4. 66 of these five packets. The total weight was shown for all 26 packets together and not of the individual packets. The first appellate Court held that the plaintiff failed to say what were the individual weights at the point of booking for these 6 packets and so claim of the short delivery was not maintainable. He allowed the appeal and dismissed the suit of the plaintiff by his judgment and decree dated 7. 8. 75.
(3.) THE plaintiff accordingly preferred this second appeal on the ground that the Railways had accepted the fact of short delivery through Ext. A-8 and no further inquiry was permissible under the law and the first Appellate Court had acted with all materials irregularity in going against the admission of the Railway authorities. This admission, according to the appellant was fully confirmed by Ext. 6 which was a copy of the remark at the open delivery and loss was admitted in the written statement. Accordingly, the responsibility of the loss was clearly with the Railways and the first appeal should not have been allowed. The appeal having been preferred in 1975, no substantial question of law was framed at the time of admission as required after the amendment of Civil Procedure Code in 1976. The respondent Union of India raised a question that the second appeal was barred under Section 102 Civil Procedure Code as the nature of the claim was cognizable by the Court of Small Causes. This point was opposed by the appellant stating that the suit was not cognizable by the Small Causes Court and Section 102 Civil Procedure Code would not stand in the way or in this second appeal. It was alternatively urged by the appellant that if under any interpretation of the law the second appeal is thought to be barred, a revision would always lie against the impugned order and this Court would suo motu interfere to correct an illegality. It was urged, on the merits of the case, by the appellant that there was no discussion in the first appellate judgment of the admission of the Railways as made in Exts. A6, A8 and the written statement. The respondent urged in reply that the Section 115 Civil Procedure Code spoke of descretionary power and the claim was barred as loss was not proved at all.;