GUPTA, J. - (1.) THIS appeal has been filed by the defendant, against the impugned judgment and decree of the learned District Judge, Bikaner, dt. 22. 4. 1987, decreeding the plaintiffs' suit for Rs. 19,229. 49, along with interest from the date of suit, being 19. 1. 1982, till recovery, along with cost.
(2.) FACTS of the case are that the plaintiffs, being a partnership firm, and the partners of the firm, filed a suit against the defendants, alleging inter alia, that the plaintiff No. 1 is a registered partnership firm, while the plaintiffs No. 2 to 5 are its partners. According to the plaintiff, the defendant No. 3 supplied certain goods to the plaintiff, pursuant to the order of the plaintiff, and the said goods were sent to the plaintiff by being booked with the Railway Administration vide Railway Receipt No. 14833 Invoice No. 15 dt. 24/16. 1. 1981, from Mithapur to Bikaner, freight amounting to Rs. 2627/- was to be paid by the consignee. The goods were to be delivered by the Railway Administration being defendant No. 1 and 2. The defendant No. 3 sent the documents, and the railway receipt to the plaintiff through State Bank of India, whereupon the plaintiff paid Rs. 30,462. 16 paisa, being price of 200 bags of Soda Ash, and Rs. 2099. 13 paisa, being the price of packing material, and the railway receipt was got released. then, on production of the railway receipt with the railway, it was informed that the goods have not been received. When a longer time elapsed, the plaintiff wrote a letter to Divisional Commercial Superintendent (Claims), and lodged his claim, that to to no good, whereupon on 26. 5. 1981 the plaintiff got served a notice under Section 80 C. P. C. read with Section 78 of the Indian Railway Act, 1890, hereinafter referred to as `the Act'. It is thereafter only,that on 12. 6. 1981, the railway authorities of the Goods Shed bikaner delivered only 84 bags of Soda Ash to the plaintiff, thereupon the plaintiff vide letter dt. 4. 7. 1981 laid a claim for the price of shortage of the goods amounting to Rs. 20,674. 82 paisa, mentioning therein that 16 bags had torn away, therefore, delivery thereof was not taken, though on being told by plaintiff, the defendant provided new bags, but then it lost its efficacy, and loss of quality of the goods was assessed at 30%. Thus, deducting the price of the goods in damaged condition, the amount of Rs. 18,381. 56 were said to be payable to the plaintiff. However, the plaintiff, adding the cost of 30% of the goods having been damaged, and the cst o bags, laid the claim for Rs. 19,229. 49 paise. Then claiming interest of different amounts, for different period, a total claim of Rs. 23,899. 49 paise was lodged, which was denied, and thereupon the suit was filed, claiming the decree for Rs. 23,899. 49 paise along with interest at the rate of 20. 5%. The defendant No. 1 and 2 filed a joint written statement, denying the firm to be registered, and other plaintiffs to be the partners, for want of knowledge. The allegation of the defendant No. 3 having received the price of the goods was denied. Then, sending the goods by defendant No. 3, vide receipt No. 148331 on 24/26. 1. 1981, from Mithapur to Bikaner, through railway, and the fare amounting to Rs. 2627/- to be paid by the consignee, was not disputed. The price of the total goods being Rs. 32561. 29/- was denied. Then the allegation about the plaintiff's writing the letters to the Divisional commercial Supdt. was denied being vague. However, receipt of notice of the Advocate was admitted. It was admitted that 84 bags were delivered. However, the loss of efficacy, or quality of 16 bags, was denied, assessment of loss at the rate of 30% by supervisor was admitted, however, the claim was denied. In additional pleas, it was inter alia pleaded, that the plaintiff has claimed some of the amounts twice over, that the other Railway, on whose account the goods were damaged, had not been impleaded, in whose absence the suit cannot be maintained, the train, wherein the goods were loaded, met with an accident in between Okha Mandi and Kuranga Station by getting detailed, and some carriages were run over by other carriages, which accident was an act of nature, and is not attributable to any negligence of the railway authority, therefore, the plaintiffs are not entitled to claim any damages. It was also pleaded, that out of 200 bags, only 100 bags were received, rest were damaged in the accident, therefore, the plaintiffs are not entitled to cost of those bags. Inter alia with these pleadings, it was contended that the suit be dismissed. The learned trial Court framed as many as six issues. First issue was as to whether the plaintiff No. 1 is a registered partnership firm, and the other plaintiffs are its partners. Issue No. 2 related to the question as to whether the plaintiff paid a sum of Rs. 32,561. 29 to State Bank of India, Bikaner to be paid to the defendant No. 3, and thereby the plaintiff became owner of the goods consigned. Then, issue No. 3 related about the question as to whether the plaintiff is entitled to Rs. 23,899. 48 paise along with interest. Issue No. 4 was as to whether no cause of action accrues to the plaintiffs against the defendants No. 1 & 2. Then, issue No. 5 was about maintainability of the suit in view of the pleadings taken in para-21, 22, 23, and 26 of the written statement. Then, issue No. 6 related to relief only. These paras 21, 22, 23 and 26 of the written statement comprehended the objections about effect of non-impleadment of other officers of the railway administration, the plaintiffs being not entitled to any compensation, as the damage caused was on account of derailment of railway carriage, being an act of God, and unforeseen risk, and about the plaintiff being not entitled to maintain the suit, as the plaintiffs were neither consignor, nor consignee, and the person making endorsement was not a person authorised by the consignor. The plaintiff produced four witnesses in its evidence while the defendants examined 11 witnesses. The plaintiff along with the plaint produced duplicate copy of the certificate from the office of the Registrar of Firms, Rajasthan, being Ex. 1, about the plaintiff firm being registered under the Partnership Act. however, since the plaintiff did not produce the list of partners, to show, that the names of other plaintiffs were entered in the register of Firms, as partners of the firm, during trial the plaintiff filed an application under Order 13 Rule 2 C. P. C. , on 23. 8. 1986 along with affidavit, seeking to produce the copy of the relevant entry of the register. This application was replied by the defendant. However, on 9. 1. 1987, the plaintiff chose to get the application dismissed, as not pressed. Accordingly the documents were not taken on record. Then on 10. 4. 1987, the defendants No. 1 and 2 filed an application, to the effect, that the documents filed by the plaintiff be not returned to the plaintiff. As this application was filed before the date of hearing, already fixed, it was ordered to be put up on 15. 4. 1987. On 15. 4. 1987 the lawyers did not appear on account of strike, and even on the next date, being 22. 4. 1987 also, none of the lawyer appeared, and therefore, that application for not returning the documents to the plaintiff was dismissed.
(3.) AFTER completing the trial, the learned trial Court decreed the suit as above. Deciding issue No. 1, it was inter alia held, that the defendants have not specifically denied the averments of the plaintiff, about the plaintiff No. 1 being a registered partnership firm, and the other plaintiffs being the partners of the firm, and since the plaintiffs have produced the registration certificate, and have deposed about th either plaintiffs being partners of the firm, in view of the judgment of Hon'ble the Supreme Court in Jahuri Sah vs. Dwarika Prasad Jhunjhunwala, reported in AIR 1967 SC 109, and from the evidence led on the side of the plaintiff, it was found, that it is established, that the firm is registered and the other plaintiffs were the partners, and therefore, the bar of Section 69 (2) no more comes in the plaintiffs' way. Reliance was also placed on the judgment of Andhra Pradesh High Court, in M. J. Velu Mudaliar vs. Sri Venkateshwara Finance Corpn. , reported in AIR 1971 A. P. 63. Then, the judgment of Madras High Court, in N. A. Munavar Hussain Sahib vs. E. R. Narayanan, reported in AIR 1984 Mad. 47, was relied upon to hold, that the plea based on the provisions of Section 69 having not been raised in the written statement, cannot be allowed to be raised at a later stage. Then, apart from finding the plaintiffs to have proved the firm to be registered, and other plaintiffs to be partners, it was also considered, that since the defendant Railways are common carrier, they are under obligation under the Indian Carriers Act to reach the goods to destination safely, and within a reasonable time, and if the goods get damaged, or get destroyed, is required to compensate as a tortuous liability, for enforcement of which, the bar of Section 69 (2) is not attracted, as the claim is not a claim arising from the contract, between the firm and the defendants. In this regard reliance was placed on the judgment in, Smt. Umarani Sen vs. Sudhir Kumar Datta, reported in AIR 1984 Calcutta 330. Thus, issue No. 1 was decided in favour of the plaintiff. Regarding issue No. 2, after appreciating the evidence, comprising of the plaintiff's own statement, and of the various authorities of the Bank, and the various documents of the Bank, as were produced, and proved, it was found, that the consignor had sent the papers through the Bank, which documents were presented to the State Bank of India through Bank of Baroda, where the payment was made, and thus the plaintiffs became the owners of the goods. Thus, issue No. 2 was also decided in favour of the plaintiff. Deciding issue No. 3, relating to quantum of compensation, it was found, that the plaintiffs have been able to establish the loss caused to them, to be to the extent of 19,229. 49. However, in view of the judgment of Hon'ble the Supreme Court, in Mahabir Prasad Rungta vs. Durga Datta, reported in AIR 1961 SC 990, it was found, that the plaintiffs are not entitled to interest prior to the date of the suit. Then, deciding issue No. 4 it was found, that all the Railway belong to he Union of India, and when the goods are entrusted to common carrier, the suit can be filed at the destination place also, and since the defendants did not settle the claim of the plaintiff, the plaintiff is entitled to maintain the suit. Thus, issue No. 4 was decided in favour of the plaintiffs. Deciding issue No. 5, being a crucial issue, after appreciating the evidence led on the side of the defendant, about the cause of happening of accident, including the report of enquiry, and the findings recorded therein, it was considered, that Ultra Sonic Testing was not undertaken, and it is not established, that the railway track was examined, as no certificate about checking of the track, said to have been done on 15 and 16. 1. 1981, and 29. 1. 1981, have been produced on record, and that since replacement of the rails was going on, it required greater care and attention. It was also found, that the rails were having cracks, which increased by and by, resulting into breakage of rail, resulting into accident, which was no account of want of proper maintenance of the railway track. Thus, the railway was found liable to pay compensation for the damages suffered by the plaintiff. It was also found, that the goods were booked on 24/26. 1. 1981, the accident occurred on 30. 1. 1981, while the goods were not removed from the site of the accident till 31. 5. 1981, and thus the goods, being Soda Ash, got damaged by moisture, and the railway authorities did not take requisite care and caution, even in minimising the loss. Then, also considering the provisions of Section 76 of the Indian Railways Act, it was held, that the defendants have failed to show any satisfactory reason, as to why goods were not rescued from the place of accident for about 3 months and 21 days. Likewise, even after collecting the goods from the accident site, the delivery was not given to the plaintiff till after three weeks, while the delivery was to be effected within a period of seven days from the date of booking. Then, it was found, that the loss occurred to the plaintiff was, on account of negligence of the railway authorities. Thus, this issue was also decided against the railway authorities. In view of the above findings the plaintiff's suit was decreed. Arguing the appeal it was contended, firstly, that the learned trial Court was in error in deciding issue no. 1, as it is not established on record that the plaintiff firm is registered partnership firm, and unless it is so registered, the suit is not maintainable. The other submission made is, that the accident was an act of God, as it happened on account of some fault in the railway track, and therefore, in view of the provisions of Section 74 (3) of the act, the Railway are not liable. It was also contended, that the learned trial Court has applied double standards, inasmuch as, on the one hand adverse inference has been drawn against the defendants for non- production of certificate, as against which, no interference was drawn against the plaintiff for non-production of relevant entry of the register of the Firms. The next argument made was, that in absence of the railway administration, with whom the goods were booked, being arrayed as party defendant, the suit cannot be maintained, against the destination railway authorities only, and the same is, therefore, not maintainable, and the suit has been wrongly decreed. ;