Ram Labhaya, J.
1. This order shall dispose of First Appeals Nos. 12 and 13 of 1952. Messrs. Radhakishen Bhagawati Prasad are the appellants in Doth these appeals. These appeals arise from two suits, Nos. 35 and 36 of 1949, instituted by Messrs. Radhakishen Bhagawati Prasad, appellants. Both the suits were dismissed. Suit No. 36 of 1949 has given rise to appeal No. 12 of 1952, and suit No. 35 of 1949 has led to appeal No. 13 of 1952.
In suit No. 38, the plaintiffs claimed a sum of Rs. 7,401/- from the Union of India. The plaintiffs asserted that they were endorsees for value of invoice No. 10 B009391, dated 27-9-1948. By this receipt, a consignment of 'Jogree' was booked from Shamli Railway Station on S. S. Light Railway to Tinsukia. The consignment consisted of 216 bags weighing 426 maunds. It was further stated that the consignment should have been delivered on 27th October in the ordinary course. It was not delivered.
Notices under Section 80, C. P. C. and Section 77 of the Indian Railways Act were served, and as no redress could be obtained, the suit was instituted for recovery of the amount due. The amount claimed includes compensation for the loss caused to the plaintiffs for non-delivery of the consignment at the due date. The defendant denied responsibility, stating specifically in paragraph 5 of the written statement, that there was nothing to show that the consignment was lost on any of the railways owned by the defendant.
In suit No. 35 also the plaintiffs claimed to be the endorsees for value of railway receipt No. 4 R/R 009757, dated 16-9-1948. The consignment in this case was also booked from Shamii to Tinsukia. It contained 191 bags. 47 bags were received by the plaintiffs before the suit was instituted. During the pendency of the suit, some more bags were received.
The claim originally made was for Rs. 7,208/-, but it was reduced during the pendency of the case to Rs. 4,179/- by reason of the receipt of a certain number of bags on two occasions after the institution of the suit. The plea raised by the Union of India in this case also was the same. In fact, it was almost in the same terms, with this difference that it was stated that the Assam Railway delivered parts of the consignment in the condition in which they were received by it.
Since there were deliveries of bags on three occasions and these formed part of the consignment in question, the case set up was that the Assam Railway delivered all that it received and also in the condition in which these portions of the consignment were received. In both the cases, the learned Additional Subordinate Judge, Upper Assam Districts, has come to the conclusion that plaintiffs have failed to set up and to make out a case under Section 80 of the Indian Railways Act.
His finding is that there is no evidence for holding that the loss, in whole or part of the two consignments, occurred on any of the administrations vesting in and managed by the Union of India. Without evidence to that effect, plaintiffs could not succeed. The decrees in both the cases have been assailed. The learned counsel for the appellants has made a three-pronged attack on the correctness of the decrees. He has urged that:
(1) There was direct and also circumstantial evidence showing that the consignments were handed over by the S. S. Light Railway, with which they were originally booked, to the East India Railway at Delhi.
(2) That, in the circumstances of the case, the Court below should have presumed that the consignments travelled as they were meant to do under the Railway receipts under which they were booked. In his view, the presumption should have been made not only that the goods were handed over to the East India Railway, a Union Railway, but that the presumption should have continued further. It should also have been presumed that the goods were handed by the E. I. R. over to the East Bengal (Pakistan owned) Railway, and that they were again handed over intact to the Assam Railway, (a Union Railway). This presumption, he urged, should have been made under Section 114 of the Indian Evidence Act.
He fortifies this part of the contention by urging that the onus under Section 106 of the Evidence Act of proving that the consignments were not received by any administration of the Union at Delhi or Saharanpur, was on the Union as the fact was especially within its knowledge, and, therefore, the fact of non-receipt was to be proved by the defendant. Failure or omission on the part of the defendant to lead evidence to that effect would entitle the plaintiffs to decrees in both the cases as though the consignments had been received and then they were not delivered wholly or in part.
(3) He has also urged that if evidence on the record is not sufficient to support plaintiffs claim, further evidence may be taken under Order 41, Rule 27, Civil Procedure Code. He has pointed out that the plaintiffs were misled by the conduct of the defendant On several occasions, representatives of the defendant asked for time for producing relevant documents.
Adjournments were allowed and ultimately the defendant was allowed to produce documents at the last hearing. The plaintiffs, therefore, did not, on their own account, press for production of any particular document. The result thus may be a miscarriage of justice if the case is disposed of without relevant documentary evidence, which must be in the possession of the defendant and which has been withheld.
2. I shall now proceed to deal with these contentions seriatim.
3. The principal witness in both the cases from plaintiffs' side is Parasmal Saraugi. In suit No. 36, he stated that he was an employee of the plaintiffs. He was present at Shamli Station on the S. S. Light Railway when the consignment was booked and loaded. He then went to Delhi and there he got the consignment transhipped over the E. I. Railway. He was present when the consignment in question was loaded over the E. I. Railway at Delhi Station. Then he came to Assam.
The statement in the other case is different. He has not claimed that he was present when the consignment of suit No. 35 was transhipped. He stated in this case that the plaintiffs were the endorsees of the consignment covered by the railway receipt, Ext. 1, and added that he had gone to Shamli, purchased the goods and got the consignment booked.
4. The witness is admittedly an employee of the plaintiffs' firm. His statement that he went to Shamli for the purchase of goods and had these consignments booked from there, seems to be demonstrably and even recklessly false. If true, it could easily have been supported by the books of account of the plaintiffs' firm. If he went as an employee of the firm and spent firm's money on the journey to Shamli and back, the books would show the expenditure thus incurred along with other expenditure or details about purchases made.
No accounts from the books have been produced, and there is absolutely no explanation why these accounts have been withheld. The best evidence in the possession of the plaintiffs about visits to Shamli thus has been deliberately kept back by the plaintiffs. This is not all. There is evidence on the record showing that the witness has perjured himself. The two railway receipts which are on the record, show that the plaintiffs are the second endorsees of the goods. Decpcliand Prakash Chand were the consignors.
They were also the consignees. These receipts were sent to the Imperial Bank at Dibrugarh and the Imperial Bank endorsed the receipts in favour of one Chogalall Richpal. The endorsements are signed by the-Agent of the Imperial Bank, Dibrugarh. They bear no date. Chogalall Richpal then endorsed them in favour of the plaintiffs. These endorsements also are not dated. But it is clear from the receipts that these endorsements were made at Dibrugarh.
The railway receipts were thus purchased by the plaintiff firm from Chogalall Richpal at Dibrugarh. This documentary evidence apparently conflicts with the version of Parasmal Seraogi and gives a direct lie to it. The receipts having been purchased at Dibrugarh long after booking, there was no occasion or need for him to visit Shamli, and if he did not go there, he could not be present at the alleged transshipment at Delhi.
5. The best evidence of transfer of consignments from the S. S. Light Railway to E. I. Railway (the Union Railway) which could receive it at Delhi or at Shaharanpur, would be the documentary evidence in possession of the S. S. Light Railway. They would be handing over, and when handing over, they would take receipts from the Union Railway. These receipts would be in the possession of the S. S. Light Railway, and that evidence the Union could not withhold.
It was open to the plaintiffs to obtain that evidence by examining an officer of the S. S. Railway or by requesting the Court to send for documents showing that the S. S. Light Railway handed over the two consignments intact to E. I. Railway at any station, Delhi or Shaharanpur. That evidence also has not been produced.
6. There is certainly the circumstance in the second case (F. A. 13 of 1952) that parts of the consignment were delivered on three different dates at Tinsukia to the plaintiffs. Some quantities of goods did come, and in three instalments. That certainly would show that some part of the consignment did travel all the way to Tinsukia but that surely is no evidence of the fact that something more was received which has been lost or destroyed, while the consignment was on the terminal Railway. All that these deliveries show is that at least some parts of the consignment reached the destination.
In the circumstances, it cannot be said that plaintiffs have been able to establish by any evidence that the whole of the consignments in both the cases were passed on to the E. I. Railway and then to the Assam Railway. They have signally failed to make out this part' of their case. The plaintiffs have not even taken the responsibility for the assertion that the consignments were handed over to the E. I. Railway or the Assam Railway. It was at the evidence stage that Parasmal was produced to state that the transhipment of one consignment took place at Delhi. His statement has been shown to be worthless.
7. Section 80 of the Indian Railways Act deals with suits for compensation for injury to through booked trafiic. In cases where goods have to travel on more than one Railway, the consignor has the right to institute a suit for compensation for loss, destruction or deterioration of goods against the railway administration to which he delivered the goods or against the railway administration on whose railway the loss, injury, destruction or deterioration occurs.
Wherever, therefore, there is loss, destruction or deterioration of goods, the administration to which the goods were consigned, becomes liable to be sued. It may recover the loss suffered by it from any other administration to which the goods were delivered. The only other administration that may be made liable under Section 80 of the Railways Act in case of through booking, is the administration on which loss, destrution, or deterioration occurs.
The plaintiffs in this case have left out the S. S. Light Railway with which the two consignments were booked, as also a foreign railway (East Bengal) which should receive the consignments before they reach their destination. Compensation from any other administration is recoverable only on proof of loss, injury, destruction or deterioration of goods on the railway of that administration.
The plaintiffs having sued the Union, can succeed only by alleging and proving that the total loss of one and the partial loss of the other consignment occurred when the goods were on any of the railways of the Union. They did not allege in the plaint that the loss occurred on any of these Railways. At the evidence stage, plaintiffs' witnesses admitted that they had no knowledge where the loss occurred. Compensation, therefore, is not recoverable from the Union.
8. The next question is whether any presumption can be raised in favour of the plaintiffs to the effect that the two consignments were handed over to the E. I. Railway, and then to the Assam Railway, under Section 114 of the Evidence Act. Under this section, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to fact of the particular case.
It is for the Court to decide, in the circumstances of these cases, whether to presume the transhipment of consignments to the E. I. Railway and the Assam Railway. For doing, so, it must have recourse to the common course of natural events, human conduct and other circumstances specified in Section 114. The relevant circumstances in this case are that the Union has got several railways. The railways form the biggest undertaking of the Union. The transport system is huge and one of the few largest systems of the world.
The traffic that is handled by Indian Railways reaches astronomical figures. Consignments delivered to a railway, may have to travel on railways of two or three different administrations. There are numerous cases in which goods are lost or damaged. There are cases also in which goods go astray. They may deviate from the course and may not be traced for years.
The question is whether in these circumstances, it is safe to presume that a particular consignment was received intact, first by the E. I. Railway, then it was handed over intact by the E. I. Railway to the East Bengal Railway, and then brought by the East Bengal Railway to the Assam Railway. This presumption seems to be extremely difficult to make in view of the circumstances referred to above. Besides, the presumption that the consignments reached the Assam Railway intact conflicts with the requirements of Section 80 of the Indian Railways Act.
The cause of action against the Union would arise only if the loss occurred on one of its railways. The plaintiffs have to prove this, and may not shift onus by a presumption. The effect of making the presumption would be to shift the onus for accounting for the loss on the terminal administration, which Section 80 does not warrant. If, therefore, the case set up is that a particular administration or administrations of the Union are responsible, it has got to be shown by the plaintiff that the loss occurred on the railway or railways of the Union administrations.
If we presume, as Mr. Lahiri has argued, that the E. I. Railway got the consignment and then handed over these consignments to the East Bengal Railways, there does not appear to be any justification for presuming that this foreign railway handed over these goods to the Assam Railway. The consignments were booked in the year 1948. The Railway administrations on both sides were rehabilitating themselves after the chaos caused by the Partition upheaval. Further, when considering whether this presumption asked for, should be made or not, the two facts mentioned above, also cannot be ignored.
The first is that the plaintiffs did not assert in their plaint or in their notices that the goods were received by any Union railway, and the second is that they have intentionally omitted to implead the S. S. Light Railway and also the E. B. Railway, which could have easily thrown a flood light, on whether the consignments were handed over to the E. I. Railway and then to the Assam Railway.
Even without impleading them, they could send for their records showing delivery of consignment to the Union Railways. On the occasion of transhipment, the administration handing over, takes a receipt. The plaintiff having failed to produce evidence which must exist if the Union Railways got the consignments, he may not be permitted to rely on a presumption under Section 114 in place of the evidence that he could produce.
9. Section 106, Evidence Act, has no application. It would not be correct to say that the Union was in the special know of facts. Special knowledge of transhipments and documentary evidence on this fact ought to be with the S. S. Light Railway and E. B. Railway. The S. S. Light Railway was plaintiffs' agent. Onus thus may not be shifted on to the Union under this section. Besides, these cases are covered by the specific provisions contained in the Railways Act. A railway administration, under Section 72, has the responsibility of a bailee if that responsibility is not reduced by any valid contract.
If the liability of a bailee is sought to be enforced under the Railways Act, the plaintiffs have to show first that the administration was the bailee. The onus to prove that fact would be on them. It will be for the bailee to prove that he took as much care of the goods as any prudent man would do in case of similar goods. But the onus of proving bailment would necessarily be on the plaintiff under Section 72. Therefore, reliance cannot be placed on the provisions of Section 106, Evidence Act, which is of general application.
10. It appears from the statement of the Inspector in suit No. 35, that the consignment in that case was booked at owner's risk. He has not made a similar statement in the other case. But the Railway Receipts in both the cases are in the same terms and they point to the execution of risk notes AZC. These risk notes have not been relied on by the defendant. It is not necessary, therefore, to examine the terms or conditions of these risk notes.
But it is clear that it is the contract between the parties that has to govern the decision of the question relating to the responsibility of the administrations concerned, and the most that the plaintiffs may claim is that the &. Section Light Railway became the bailee, but before they can enforce the liability against the Union, a definite case of bailment has to be set up and made out.
11. The third contention is that evidence bearing on the point of bailment is in the possession of the Union or its administrations. The conduct of the representatives of the defendant in the trial Court misled the plaintiffs and lured them into a false sense of security. It is urged that the evidence be taken now in the interests of justice. Powers of the Court under Order 41, Rule 27, Civil Procedure Code, have also been invoked.
Under this rule, additional evidence may be taken if the Court from whose decree an appeal is preferred, has refused to admit evidence which ought to have been admitted, or the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause.
The trial Court did not refuse to admit any evidence which the plaintiffs sought. We have not felt the need of taking any further evidence to pronounce judgment. The plaintiffs had the fullest opportunity to produce whatever evidence they had in their possession or power. They could also summon documents or witnesses from the railway administrations concerned to show that the goods were received by the Union Railway at Delhi or Saharanpur and then again at Naihati.
It was possible also for them to produce evidence showing where the goods were found missing. They have made no attempt to produce any evidence which could point to the Union having incurred the liability sought to be enforced against it. As stated above, the best evidence of transhipment at the two stages (at Delhi and Naihati), which was not in the possession of the Union, also has not been produced. No serious attempt was made to produce this evidence.
It is true that defendant was taking time for producing documents. But it? representatives were asking for time to produce documents which they wanted to produce in support of their defence. They had not indicated what documents they would produce, and if they have not produced any document in their custody, they have taken some risk. But the plaintiffs had no justification for believing that the documents needed by them would be produced on behalf of the defendant.
There has been no misleading by the defendant. All that the plaintiffs did was to send a notice to the defendants for producing certain documents. This notice was under Order 12, Rule 8, of the Civil Procedure Code. This notice demanded from the defendants, at the first hearing of the suit, all books, papers, letters, copies of letters and other documents in their custody, possession or power containing any entry, memorandum or minute relating to the matters in question in the suit, and particularly, transhipment Register of Delhi Station of E. I. Railway from 16-9-1948, to up to date i.e., up to December, 1951.
The answer to the notice was that
'It is not practical to produce a large number of such Registers. Delhi is the Central Junction Station of B.B.C.I., E.P., E.I.R., G.I.P., Railways. Transhipment Registers are innumerable. Besides, their removal would impede day-to-day work of the Railway administration.'
The defendant thus pleaded inability to comply with the notice on the grounds stated in the answer. Plaintiffs did nothing after that. They did not seek the aid of the Court for procuring production of documents they needed. They did not mention any particular document which the defendant must produce.
Even on the last hearing when the defendant failed to produce any document, they did not press for the production of any particular document. In. the circumstances, the plaintiffs have not at all been diligent. Their conduct was, on the other hand, grossly negligent. The application of the provisions contained in Order 41, Rule 27, is thus not attracted.
They cannot be utilised for plugging boles or filling up gaps in the evidence of a party. Mr. Lahiri has drawn our attention to the fact that plaintiffs have been able to discover the number of wagon to which one consignment was transferred, at Delhi. This shows that evidence not produced could be made available by the exercise of due diligence. No case has been made out for taking any fresh evidence at this stage.
12. The result of the foregoing discussion is that all the three contentions raised are repelled. This case is fully covered by the unreported decision of this Court in 'The Union of India v. Jalim Chand Seraogi', F. A. No. 22 of 1950, The consignment in this case was also booked from S. S. Light Railway and the ratio adopted in that case was that if the plaintiff sued the administration with which the goods were not booked, he could succeed only on showing that the loss occurred on the railway of the administration which is sued. It was for him to prove that the consignment was received by the administration and the loss occurred whilst the consignment was in its possession. In view of this decision also, the plaintiffs must be non-suited in both the cases.
13. The appeals, therefore, must be dismissed with costs and it is ordered accordingly.
Sarjoo Prosad, C. J.
14. The only substantial point which arises for consideration in these appeals is about the scope and application of Section 80 of the Indian Railways Act. The plaintiffs in the suits to which these appeals relate, did not implead, as party to the suits, the Railway administration to which the goods had been originally consigned; nor did they allege in the plaint as to whether the goods were delivered to any particular railway administration or the goods were lost on any particular railway administration with which the defendant No. 1 was concerned.
In that view, the learned Subordinate Judge held that these suits were intrinsically defective under Section 80 of the Indian Railways Act, and accordingly dismissed the suits, and, in our opinion, rightly. As my learned brother has just observed, the point involved in these cases is completely covered by our decision in an earlier case : 'The Union of India v. Jalim Chand Seraogi', F.A. 22 of 1950, D/- 11-3-1953, I say so pointedly, if for nothing else, at least to uphold the healthy tradition that judicial precedents of this Court should not be lightly brushed aside or distinguished unless on very substantial grounds.
It may be that the judgment in a particular case may have been delivered by one or the other Judge of this Court, but the decisions are decisions of this Court and binding as precedents. In the case in question, the plaintiff had similarly sued for recovery of a certain sum of money on account of non-delivery or loss of several bags of gur or molasses which had been booked from the Shamli railway station on the S. S. Light Railway.
The Railway administration to which the goods were consigned, was not made a party to the suit, and it was not stated in the plaint that the goods had been delivered to any railway administration belonging to the defendant, or that the goods were lost while in charge of that railway administration. The learned Subordinate Judge who tried the suit in that case, decreed it. He was of opinion that it was not necessary to make the S. S. Light Railway a party to the suit, and that there was some evidence to show that the goods had been delivered by the S. S. Light Railway to Railways owned by the defendant No. 1, where the loss presumably occurred.
The said decision was challenged in appeal before us on behalf of the Union of India, and it was contended that the S. S. Light Railway, to which the goods were consigned, was a necessary party to the suit, and it had not been shown where the loss occurred or whether the goods were actually delivered to any of the railway administrations belonging to the Union of India. These contentious prevailed before us. The judgment was, of course, delivered by me, but my learned brother agreed with the decision. It was there held that it was not for the Railway administration to prove the case of the plaintiff.
If the plaintiff had alleged and made any endeavour to prove his case that the consignments had been actually received by any one of the Railways owned by defendant No. 1, then, of course, the onus might have shifted to the defendant to disprove those facts; but in the case in question, there was not even an allegation to that effect in the plaint, nor any assertion that the goods were lost in transit on any particular railway administration. The evidence which was given on the point by the plaintiff, was held to be utterly unreliable.
In those circumstances, this Court held that it was unable to sustain the speculative decision of the learned Subordinate Judge that the loss must have occurred on any of the railways owned by defendant No. 1, and, as such, that defendant was liable. The learned Subordinate Judge there bad thrown the onus to prove the negative on the defendant, which was clearly wrong, without even referring to the actual case of the plaintiff as disclosed in the plaint itself. These observations apply with equal force to the plaints in these cases. It is quite clear, therefore, that on the application of Section 80 of the Indian Railways Act, the suits were defective intrinsically and had been rightly dismissed by the learned Subordinate Judge.
15. It is important to observe that Mr. Lahiri who happened to defend that appeal before as in the earlier case, did not think it worthwhile to raise the question of presumption under Section 106 or Section 114 of the Indian Evidence Act, and perhaps rightly. These questions, if I may say so, merely confuse the issue. No question of presumption arises when the suits themselves are intrinsically defective as not having been framed according to the requirements of Section 80 of the Indian Railways Act. I am, therefore, not prepared to attach any importance to these arguments of the learned Advocate General bearing on the application of Sections 106 and 114 of the Indian Evidence Act.
How can these presumptions apply? It is only an accident that some of the railways through which the goods had to travel belonged to the defendant No. 1, but there can be no presumption that the loss must have occurred on the Railways belonging to the defendant No. 1, and not on any other Railway through which the goods had to travel. Even on the facts of these cases, it is obvious that there were other railways concerned, namely, the S. S. Light Railway to which the goods were consigned, and the East Bengal Railway through which the goods had to pass. If the presumption applies, it would apply with equal force to these Railways also, and who knows that the goods may not have been lost when they were in course of transit on these railways.
These considerations justify the underlying principle of Section 80 of the Indian Railways Act. It is for the plaintiffs to allege and prove, if the consignee railway has not been made a party to the suits, whether the goods were actually delivered to any particular railway administration, and whether the goods were lost while in course of transit on any particular railway administration. Nothing of the kind was done in these cases and, therefore, the decrees of the learned Subordinate Judge must be upheld, and the suits dismissed with costs.