JAGAT NARAYAN, J. - (1.) THIS is a revision application by the plaintiff against an appellate decree of the Civil Judge, Beawar, dismissing her suit for recovery of money by way of damages for short delivery of coal which was decreed by the trial court.
(2.) A consignment of coal weighing 22 tons and 7 cwt. was despatched from Dhuri railway siding on the Eastern Railway by the Zuria Colliery to the plaintiff at Bijay Nagar Railway Station on the Western Railway in an open broad gauge wagon No. 9828. The consignment was transhipped into two metre gauge wagons at Sawai Madhopur Railway Station. One metre gauge wagon No. 4817 reached Bijai Nagar on 31. 10. 56. It contained 11 tons of coal. The other metre gauge wagon No. 5275 reached Bijay Nagar on 1. 2. 57. It contained 1 ton 16 cwt. There was thus short delivery of 9 tons 11 cwt. of coal. The present suit was brought by the plaintiff for the recovery of the balance of the coal, or its price. The suit was contested by the Railway on various grounds. All these grounds were over-ruled by the trial court and the suit was decreed for the price of the coal at a lower rate than that claimed. Against this decree the Railway preferred an appeal. The learned Civil Judge held that under sec. 74-G (3) the burden lay on the plaintiff to prove that the loss was due to the negligence or misconduct on the part of the railway administration or of any of its servants and as this had not been proved the plaintiff was not entitled to recover any amount. Against this decree the present revision application has been filed. It is contended on the authority of Jhabarmal vs. the Union of India (1) and numerous other cases that the Railway having failed to plead that there was any loss, destruction or deterioration of the goods there was no burden on the plaintiff to prove any negligence or misconduct on the part of the railway administration or of any of its servants. In my opinion the view taken in the above decision can no longer be considered to be good law as their Lordships of the Supreme Court held in Governor-General in Council vs. Musaddi Lal (2) that failure to deliver is the consequence of loss or destruction of goods; it does not furnish a cause of action on which a suit may lie against the railway administration, distinct from a cause of action for loss or destruction. In view of the above decision it was for the plaintiff to prove negligence or misconduct on the part of the railway administration or its servants. Next it was argued that even though it is assumed that the burden of proving misconduct or negligence is on the plaintiff under section 106 of the Evidence Act the railway administration should call all the material witnesses to prove the facts which may be within its special knowledge. Reliance was placed on Ramkrishna Ramnath vs. Union of India (3 ). That case is distinguishable on facts. There 'zarda' was consigned in a closed wagon. It was found on the basis of the evidence produced in the case that the railway failed to provide a water tight wagon and the deterioration of the goods was attributable to that. Under the rules relating to conveyance of goods in monsoon it was the duty of the railway servants to provide water-tight wagons. It will thus be seen that in that case the plaintiff had prima facie proved that there was negligence on the part of the railway administration. Here there is no prima facie proof of negligence his conduct. I accordingly hold that the decision of the court below is correct and dismiss the revision application. But having regard to the circumstances of the case, I direct that parties shall bear their own costs of the suit, the appeal and the revision application. ;