1. These revision applications are being disposed of by a common judgment, for there is only one common question raised therein. In all these revisions Maharashtra State Electricity Board being consignee filed Civil Suits against the Union of India for the Central Railway for recovery of the claims on account of short deliveries of slack coal from various places to the Paras Railway Siding located in district Akola.
2. It is found out in each case by the learned trial Court that there had been in fact short deliveries which are from the period of July 1962 to February 1963 in all these cases. It is also not disputed that the goods were so carried at the owner's risk and no special payment was made to the Railways. The learned trial Judge, however, took the view that the plaintiff failed to establish, as required by Section 74 (3) of the Indian Railways Act, that this short delivery was due to the negligence of any the servants of the Railways. In view of this finding, the learned Judge dismissed all these suits.
3. In these revisions the only question that was canvassed by the learned advocate Shri Golwalkar related to the requirement of the proof under Section 74 (3). He pointed out to me that in these trials evidence was let in to establish that the Paras Railway Siding Yard was a place which was not properly guarded and further that there were reports of thefts from time and again. He referred to me to the evidence in the case leading to Civil Revision Application No. 347 of 1966. That evidence, briefly stated, is of a very general character and merely indicates that there had been thefts of coal and some complaints were made to the authorities. All this evidence, however, does not in any manner connect the present wagons nor reveal any story about the theft from the Railway Siding. Mr.Folwalkar states that there is no direct evidence whatsoever relating to the shortages and the cause of those shortages as far as these six cases are concerned. He argues, however, that the fact of shortages is proved. It is further proved that the Railway Siding which was in the charge and control of the common carrier, the Central Railway was vulnerable. He further says that the evidence of theft or the complaints relating to thefts are also on record. The Railways on the other hand, though being the person having special knowledge of all these circumstances, have not come out nor have produced any documents. According to Mr.Golwalkar, therefore these four factors are sufficient to discharge the burden cast upon a plaintiff by virtue of sub-section (3) of S.74. In that view, he says that it should be held that these are the short deliveries referable to the carelessness or negligence of the employees of the Central Railway.
4. The pleading in these cases is almost similar. The plaintiffs case relating to this part of the submission is stated thus :
'The plaintiff submits that the slack coal as stated above was delivered short due to carelessness, negligence and misconduct on the part of the employees of the railway Administration.'
Thus the plea that was raised in all these cases is of a negligence on the part of the employees of the railway administration. There is no general plea that the railway siding yard was vulnerable or that there used to be thefts and that the administration as such was negligent enough. Unless there is a plea, such type of evidence, in my view cannot be let in.
5. Upon the plea that there had been any negligence on the part of the employees of the railway administration which is the only case that is pleaded by the plaintiff, it is conceded that no definite evidence has been led. If that be the position, I fail to see how the plaintiff can contend that the requirements of sub-section (3) of S. 74 have been complied with. A look at that provision which was introduced by amendment in 1961 shows that there can be a case of negligence or misconduct on the part of the railway administration as such, as well of any of its servants. The party who seeks to stand by a particular allegation is, therefore, required to prove that allegation. In this case, the specific allegation as pleaded was that it was the negligence on the part of the employees of the railway administration and that called for proof. As the plaintiff has not adduced any evidence, he cannot say that the onus cast by sub-section (3) of Section 74 has been discharged.
6. Mr.Golwalkar's assumption that the circumstances placed by him on record raise on inference of negligence on the part of railway administration cannot be sustained. As indicated above the plea of the plaintiff is that the negligence was of the employees of the railway administration. The inference that has to be drawn from the facts put before me by Mr.Golwalkar would be against the railway administration as such and not against any particular employee. Furthermore, negligence as any other fact has to be established either by circumstances or by positive proof. Plaintiff cannot succeed by letting in a general type of evidence, which in my view, is not admissible at all. A party which seeks to have a decree in his favour upon certain facts is bound in law to establish those facts. That not being done in this case, I feel the suits were rightly dismissed.
7. That being the position, the claim of the plaintiff was rightly disallowed by the learned trial Judge. I, therefore see no reason to interfere with the orders made by the Court below. All these revisions shall, therefore, stand dismissed. However, there will be no order as to costs.
8. Revision dismissed.