BIHAR STATE CO OPERATIVE MARKETING UNION Vs. UNION OF INDIA

JUDGEMENT

(1.) This revision application has been filed on behalf of the plaintiff under Section 25 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as 'the Act') for setting aside a judgment and decree passed by the Small Cause Court Judge dismissing the suit of the plaintiff. It was heard by a learned single Judge of this Court who referred this case to a Division Bench.

(2.) It appears that the plaintiff-petitioner filed a suit for realisation of Rs. 281.62 Paise, being the price of D.A. phosphate which had been consigned on 14-4-70 from Kanta Pukur to Narkatia-gan.i by the North Eastern Railway. The consignor was the Food Corporation of India which had consigned 440 bags of D.A. phosphate, each bag containing 50 Kgs., in favour of the plaintiff under Railway Receipt dated 14-4-70 (Ext. A). According to the case of the plaintiff when that consignment reached at. Nar-katiaganj railway station it was in a damaged and pilfered condition and a shortage of 251 kgs. was discovered. A shortage certificate was also granted by the railway at the time of delivery. After serving the notice the aforesaid suit was filed for a decree of the amount mentioned above along with Interest. On behalf of the railways a written statement was filed disputing the claim made on behalf of the plaintiff. The defence, inter alia, was that the consignment was loaded in the wagons supplied by the defendant to the consignor. It was also asserted that the bags which had been used for containing the phosphate in question were of inferior quality and had not been properly sewn. In such a situation the railways cannot be held responsible for shortage, if any, found at the destination. The plaintiff examined two witnesses. No witness was, however, examined on behalf of the railways. On behalf of the defendant railways two documents were exhibited and marked, namely the railway receipt (Ext. A) and a letter from the Chief Commercial Superintendent, Gorakhpur. The court below, however, upholding the claim of the plaintiff that there was shortage of 251 kgs, dismissed the suit on the finding that the shortage had occurred due to the negligence and carelessness of the consignor.

(3.) The learned counsel appearing for the petitioner has submitted that the court 'below, on the facts and in the circumstances of the case, has wrongly placed the onus on the plaintiffs. He has submitted that in absence of any evidence adduced on behalf of the defendants that there was negligence or carelessness on the part of the consignor, the court below could not have absolved the railways of their responsibility under the statute. The learned counsel also pointed out that the court below has committed a serious error of record while making reference to paragraph 3 of the plaint. In paragraph 6 of the judgment the learned Judge has observed that it was quite clear from paragraph 3 of the plaint that the consignment was not properly handled by the consignor and was loaded in a bad, damaged and pilfered condition. We have looked into that paragraph of the plaint. The plaintiff has never made such statement in the plaint. On the other hand, it has stated that the consignment reached Narkatiaganj railway station in a damaged and pilfered condition.