P.Chatterjee, J. - (1.) This is a petition under Section 115 of the Code of Civil Procedure against the judgment and decree passed by the Court of appeal below in suits for money. The plaintiff is a dealer in mangoes. The plaintiff consigned certain baskets of mangoes from Eklakshi to Tinsukia and certain other baskels from Katihar to Tinsukia. The normal time for delivery of a parcel consignment is about three to four days; but the plaintiff urged that due to wilful negligence and gross misconduct of the defendant or of his servants the parcels were carried by goods train and reached Tinsukia four days later than the normal time of delivery. The plaintiff filed the suit after serving usual notices. The defendant however challenged the statement regarding delay. The defendant also challenged the statement that the mangoes in the baskets were green and the defendant's case was that there was no negligence or misconduct of his servants and the mangoes were damaged because thev were tendered for despatch in a quite ripe condi lion. The defendant claimed protection under Section 73 (g) and Section 74 of the Indian Railways Act. In the trial Court the defendant did not challenge that the consignments were not carried by goods train The trial Court found that consignments were booked at owner's risk rate and the plaintiff was bound to prove negligence or misconduct of the defendant and the plaintiff could not prove that the defendants were negligent in carrying consignment by goods train. The trial Court further held that in view of exhibits 1 to 1 (B) the plaintiff was estopped from challenging the damage certificates. The trial Court further found that the claim of the plaintiff was inflated and that the notices were good; hut the suit was dismissed as there was no negligence on the part of the Railway Administration. Against that decision, an appeal was filed.
(2.) The appeal Court found that there was no estoppel and further held that the parcel being earned by 901. Up train which is an Express Parcel Train between Katihar and Tinsukia the question of sending the parcel by goods train does not arise. The appeal Court further found that documents were called for from the defendants and those documents were not produced and therefore there was with holding of the documents The appeal Court relied on Section 76 of the Indian Railways Act, and so it was the duty of the Railway administra tion to prove hat the delay and detention was caused not due to the negligence and mis conduct of the Railway Administration; but it found that the Railways not having produced the necessary documents presumption should he made as against the Railways. It further held that the Railway Administralion was not abso lved from the liability and the appeal court granted relief. The substantial point in this case is whether the delay caused in delivery was due to negligence or misconduct of the Railway authorities The trial court referred to Section 74 of the Indian Raiways Act and found it was for the plaintiff to prove positively that there was delay due to misconduct or negligence of the Railway Administration. Whereas the appellate court found that Sec- tion 76 would govern the case and therefore it was for the Railway Administration to prove that the delay or detention arose without negligence or misconduct of the Railway Admi nistration. The first question, therefore, would be whether the case would be governed under Section 74 or under Section 76 of the Indian Railways Act.
(3.) It is urged by Mr. Bose on behalf of the petitioner Railway Administration that Sec-tion 74 would govern the case because the goods were carried at owner's risk rate. There is no dispute that the goods were carried at owner's risk rate. Section 74 (3) provides as follows: "When any goods are carried at the owner's risk rate, then, notwithstanding anything contained in Section 73, the Railway administration shall not be responsible for any loss, destruction, damage, deterioration or nondelivery in transit of such goods from whatever cause arising, except upon proof that such loss, destruction, damage, deterioration or nondelivery was due to negligence or misconduct on the part of the railway administration or of any of its servants" In this case the goods were delivered for carriage at the owner's risk rate. There was damage to the goods or there was at least deterioration of the quality of the goods in transit and therefore the railways was not responsible whatever may be the cause for such deterioration unless there was proof that such deterioration was due to negligence or misconduct on the part of the railway administration. The findings are that there was delay and on that finding of fact the question is whether deterioration took effect because of the delay. Tf the finding on that point is that the deterioration took place because of delay even then the plaintiff has to prove that such delay was caused due to negligence or misconduct on the part of the railway administration. Therefore, under section 74 (3) it was the responsibility of the plaintiff to prove positively to a court of fact that this deterioration was due to negligence or misconduct on the part of the railway administration or any of its servants. In order to prove that there was negligence or misconduct the plaintiff may call upon the railway administration to produce such evidence as he thinks fit and he court may at the instance of the plaintiff direct the defendants to produce such evidence. If the defendant does produce the evidence the court will admit that as evidence adduced on behalf of the plaintiff and then come to a finding of fact as to whether there was such negligence or not. If the defendant however does not produce that evidence, the court will consider as to whether the evidence called for was evidence relevant for the purpose of proving negligence or misconduct. If the court finds that evidence called for would be relevant for the purpose of proving a case of negligence or misconduct, the court will hold that if evidence was produced it would have gone against the defendant and the defendant not having produced the evidence must be considered to have withheld that evidence. If further the evidence called for was not relevant for the purpose of proving a case of negligence or misconduct, non-production of such evidence would not be witholding of evidence relating to negligence or misconduct. It may be withholding evidence with regard to some other matter. What I mean to say is whenever any relevant document is called for and whenever that document is not produced the court may presume that the railways withheld evidence. The evidence called for must be relevant for the purpose of proving negligence and misconduct if the relevant evidence is called for and such relevant evidence is withheld then the court may presume that if such evidence had been produced by the defendant, it would have gone against the defendant. The appeal court in this case has not even considered what documents were called for and whether those documents would be relevant for the purpose of proving a case of negligence or misconduct. But the primary question is whether Section 74 of the Indian Railways Act applies or Section 76 of the Indian Railways Act applies.;