Norman Kemp, Kt., Acting C.J.
1. The suit is for Rs. 1295 being the amount of 185 consolidated claims for shortage in respect of goods consigned from no less than forty-six stations on the East Indian Railway and the Great Indian Peninsula Railway to Bombay. The plaintiffs might have filed the suit in the Presidency Small Causes Court under its extended, jurisdiction but have preferred to bring it in the High Court. The plaintiffs base their claim for shortage on each consignment on the difference between the average weight per bag according to the system of measurement adopted by the railway company and the weight of that bag when taken delivery of from the company by the consignee in Bombay. To that I will refer later. The railway company contend that the weight inserted in the railway receipt when the bags are accepted by the company is only for the purpose of ascertaining what the railway company should charge for freight.
2. Out of the fourteen issues raised before the trial Judge issues Nos. 4 and 5 were regarded by him as preliminary issues and by consent issue No. 4 was struck out as it was included in issue No. 5. The plaintiffs contended that the weight inserted in the railway receipt amounted to (I) an estoppel and (2) an admission of the weight. The learned trial Judge held that there was no estoppel but that the weight in the railway receipt was binding on the company as 'an admission on their part of the weight as they have accepted it prima facie for the purpose of charging freight at the station of consignment.' The parties agree that this is such an admission as will throw the burden of proof on the railway company and it appears that if the railway company calls no evidence a decision will go against them on the admission found against them of the weight as inserted in the railway receipt. Relying, therefore, on this decision as a 'judgment' the defendants have appealed under clause 15 of the Letters Patent.
3. The respondents raise the preliminary objection that the decision on this point does not amount to a judgment. This Court has in construing the word 'judgment' in clause 15 of the Letters Patent always followed the decision in Miya Mahomed v. Zorabi (1909) 11 Bom. L.R. 341. It is also true that each case has to be determined on its own facts and that it is undesirable, as stated by Macleod C. J. in Goverdhanlalji v. Chandraprabhavati : (1925)27BOMLR1496 , that a suit should be tried piecemeal. The actual decision in the last named case that the finding that the suit for increased maintenance was maintainable where maintenance had been fixed by a consent decree is not a 'judgment' is under appeal to the Privy Council. I cannot do better than cite a passage from the Chief Justice's judgment, delivered on August 16, 1926, granting leave to appeal, which, I think, is particularly appropriate to the present case. He says :-
But bearing that in mind, what is the effect of the decision of the appellate Court It is this that it is at any rate premature to have this preliminary issue decided by the appellate Court, and that the rest of the case must be heard on its merits before the appellate Court is willing to entertain this preliminary issue. The result is that though the defendant may be perfectly right, yet the parties are to be exposed to the serious expense and delay which the trial of the case on its merits would involve. I say this because if the suit is proceeded with it will necessarily involve something in the nature of an account both of capital and income of the largo possessions of the defendant, which are scattered over different parts of India. The affidavit of Motiram Narbheram Vakil filed on August 9, 1926, on behalf of the plaintiff in answer to this present application shows in para. 9 what a large amount of property is involved.
If, therefore, there is a substantial preliminary issue to be decided, which may render this long and expensive trial quite unnecessary, then with all respect to the judgment of Sir Norman Macleod and Mr. Justice Coyajee, I think it ought to be determined before that expense is incurred. I wish to make it clear that if the defendant's objection succeeds, then the suit will fail entirely and will be dismissed. So that in the event of this preliminary issue being decided in one way, it will make a final ending of the suit, although I quite follow that if it is decided in the other way the suit will proceed.
Under these circumstances we have carefully considered to the best of our ability all the arguments that have been addressed to us by counsel on either side. But, in the result, in the exercise of our discretion, we think that this is one of those exceptional cases in which we ought under Clause 40 to grant permission to the defendant to appeal to the Privy Council from the order of the appellate Court.
4. It is true that there the Court was dealing with an application for leave to appeal under clause 40 of the Letters Patent but the same principles apply in this case. The real question is, whether the finding merely regulates the procedure in the suit or goes further so as to decide some right affecting the merits of the question between the parties. In the latter case it may be either final or preliminary. If preliminary it affects part of the suit (see per Batchelor J. in Sonabai v. Tribhowandasa I.L.R. (1908) 32 Bom. 602. In the present case* the finding practically amounts to a judgment in favour of the plaintiffs for it is obviously impossible for the railway company now to adduce evidence of what the bags actually weighed at the stations of consignment. I am, therefore, of opinion that under the circumstances of the case the finding on issue No. 5 amounts to a judgment from which an appeal will lie under clause 15 of Letters Patent, This case must be distinguished from a case where a Court may throw the 'onus' wrongly on a party but this may have no effect on the decision when reviewed by the appellate Court on the whole of the evidence. Incidentally, I may also point out that such evidence as may now be available as to the weight of the bags when consigned can probably only be adduced by the plaintiffs who may have evidence as to weighment when they took delivery from their sellers. Furthermore, the railway company are entitled to ask that they should not be compelled unnecessarily to collect evidence from forty-six stations upcountry nor are they bound to wait until all the evidence has been taken to see whether it has made any difference in the final result that the 'onus' has boon wrongly placed on them.
5. On the merits, after a consideration of the method of weighment adopted at the consignment stations where only ten per cent, of the bags are weighed, I have come to the conclusion that the weighment by the railway company is only for the purpose of ascertaining what they will charge and for no other purpose. On the back of the railway receipt there is a clause that the goods booked are subject to the railway company's goods tariff and rule 15 from the Goods Tariff, Part I, in force from June 1, 1923, which governs the consignments in the suit, states that the weight is merely for the purpose of estimating the railway charges and the railway company reserves the right of remeasurement and concludes : 'No admission is conveyed by a railway receipt that the weight as shown therein has been received or that the description of the goods as furnished by the consignor is correct.' Clause 6 of the railway receipt also reserves to the railway administration the right to remeasure and collect any undercharges at the place of destination. I think these show that the weight at the consignment station is merely for the purpose of ascertaining what the railway company shall charge. Rule 58 of the Tariff Instruction Book merely relates to the instructions given to the railway company's servants. In many cases of consignment of produce and cotton there is a small shortage due to climatic conditions, etc., when the goods arrive at their destination. As my brother Murphy pointed out the plaintiff's claim is based on the difference from, the average bag in the consignment which is not by any means necessarily the weight of the particular bag in respect of which the shortage is claimed. I would, therefore, allow the appeal and hold that the weight in the railway receipt is for the purpose of calculating freight only and answer issue No. 5 in the negative.
6. The suit now in question involves a consolidation of 185 claims for short delivery of different kinds of grain to the plaintiffs, a firm of grain merchants and commission agents, by the defendants, the G. I. P. Railway administration ; the grain having been consigned to Bombay from many different stations and at different times in 1924 and 1925. The plaint sets out the usual course of business in carrying grain. In order to avoid the great labour involved in weighing the large quantities handled, the bags of grain are roughly classified by size, and ten per cent, of them are weighed, the weight of the entire consignment being then obtained by calculation from the weight of the ten per cent, number of bags. The total weight, as so estimated, is entered in the railway receipt for the purpose of charging freight. At the delivery end, the consignees have all the bags which they consider show signs of leakage reweighed, and the claim in each case is based on the difference between the weight so found, and the average weight of each bag calculated from the railway receipt. The railway administration denied its liability, stating that the weight obtained as stated and shown in the railway receipt, was calculated for the purposes of charging freight only, and was not intended to show the actual weight: that in most of the claims made the loss was less than one per cent, and in the remainder less than two per cent., a loss fairly imputable to the natural incidents of transit, and that the statement that the weight at the delivery station was less in each case is not admitted.
7. Several more defences, based on the want of statutory notice and similar technical grounds, not now in question, were also made in paras 7 to 14 of the written statement. Fourteen different issues were raised, but of these No. 5 was treated as a preliminary one and was first decided. It has been formulated as follows:-
5. Whether the weight declared in the railway receipt is binding on the company, as being the actual weight of the goods as alleged in para, 2 of the plaint ?
8. The finding is:-
The weight declared in the railway receipt is binding on the company as being the actual weight of the goods, in the sense that it is an admission on their part of the weight as they have accepted it prima facie for the purpose of charging freight at the station of consignment.
9. The appeal is against this finding, the real point of it being that in the appellants' view it affects the administration's rights as to the burden of proof, which it has the effect of throwing on it, I have already recited the system of weighment adopted in the cases of these large consignments. It is enjoined by the rules, and is a common ground between the parties.
10. The weight so obtained is a mere approximation, or mean. The claims are, however, based on the actual shortage, that is, the absolute weight of the bags for which the claim is made and therefore, assumes that each of these bags was originally up to the mean weight per bag of the consignment. Logically, this assumption is Illegitimate, for the essence of a mean is that the several items are in some cases above it and in others below, and the plaintiffs' method is based on a selection of the items below the mean. The proper basis for such a claim is really, either the re-weighment of the whole consignment, or a second process of taking the mean on delivery, in the same way as was done on consignment, but I suppose this would be impracticable.
11. Properly speaking issue No. 5 should be ' Whether the total weight of a consignment, as shown in the railway receipt, is binding on the railway company as denoting by calculation the actual weight of each bag of the consignment, as alleged in para. 2 of the plaint ?' Were the issue so framed the answer would clearly have to be in the negative, in the absence of a further qualification to the effect that the system of weighing adopted involved the necessary admission that the bags are all uniform in size and weight. This point is raised in the plaint in paragraph 2, but is not involved in the issue; at least if it is, it is so only implicitly.
12. The points raised in the appeal are :
(1) Whether the finding on this issue can be appealed against, and
(2) whether the statement of weights in the several railway receipts is binding on the railway administration as found by the learned trial Judge.
13. The decision on the first point depends, under clause 15 of the Letters patent, on the question whether the finding amounts to a judgment, or not. The learned Advocate General, who appears for the railway administration, has pointed out that it is a judgment, because it determines the rights and liabilities of the parties, as, if it stands, it would have the effect of throwing the burden of proof on his clients, who would have to begin, and who, if they gave no evidence, would fail. The question really depends on the actual finding on issue No. 5, for if the statements of weight are not admissions, the burdern of proof would not be as stated, but, the finding being as it is, the learned Advocate General has agreed that it will not be open to him hereafter further to argue that the onus lies on the plaintiffs, and this being so, I think the defendants' rights are affected by the finding. He has relied on the case of Miya Mahomed v. Zorabi (1999) 11 Bom. L.R. 241 while Mr. Setalvad for the respondents has argued that all that is really involved is a matter of procedure and has cited the cases of Goverdhanlalji v. Chandraprabhavati (1925) 37 Bom. L.R. 1496 and Ibrahim v. Fuckhrunnissa Begum I.L.R. (1878) Cal. 531. Ordinarily, I should have been inclined to hold that a finding on a preliminary issue, which did not involve the practical determination of the suit, does not amount to a judgment and is not appealable, but, owing to the peculiar framing of this suit, it appears to me that the issue as raised does, or may, imply its final determination, and I therefore think that on those facts the finding amounts to a judgment, and that an appeal lies.
14. The learned trial Judge has found that the statements given in the railway receipts are not estoppels and are also not conclusive. His view, however, was that they are admissions to the extent shown in his finding, and his reasons were that, since the consignor's statement of weight as shown in his consignment note would ordinarily be an admission and in that sense binding on him unless and until he has shown that there were circumstances which had caused some inaccuracy, or which were not within his knowledge at the time he stated the weight in the consignment note, so also was the railway administration bound by the weights stated by its servants in the railway receipts, irrespective of the system they chose to adopt for weighing the consignments -for having an opportunity to weigh more accurately, they have by a rough method accepted this weight for the purpose of freight.
15. The difficulty seems to me, with respect, to lie in the statement that the method of weighing the goods is a matter for the company, and that if instead of actual weighment they choose to adopt an approximate method, they cannot complain if the consignors treat the results as those of an accurate one. The method of weighment by an average is common ground.
16. I suppose it is in the interests ot both the consignors and the 0F railway administration, as saving delays in despatch and costs of handling the goods, and it is admitted in the plaint. But, it is necessary to see what it amounts to in actual fact. A specimen, I think, is enough. I will take item No. 161 as a sample. This relates to a consignment of one-hundred bags of wheat from Pabai to Wari Bunder (Bombay). The consignor's estimate was 2 m. 20 Section per bag. Ten bags were weighed in lots of two, the result was multiplied by ten, and 250 maunds were charged for. On arrival one bag was found torn and slack and short by thirty seers worth Rs. 6. This is the claim. The percentage loss on the consignment is very small, as are nearly all the other instances here, for the average value of 185 claims is Es. 7, the number of bags carried being very large. Strictly speaking, I think the railway administration's admission, if it is one, only amounts to this: ' Having weighed ten bags of your consignment we find that on the average the weight of each of the ten bags is 2 m. 20 Section so we will charge you for the remaining bags as if they on the average weighed that amount.' I do not see how it follows, unless there is an express or implied agreement between the parties, that the actual weight of each bag is to be taken at two and a halt maunds; that is to say, bag No. 97 weighed two and a half maunds and has lost thirty seers of its contents. Since it was found torn and slack, it is probable that it has lost something in transit but the actual loss is not so determinable, for in the circumstances it may not originally have weighed 2 m. 20 Section but some thing less. The system is really parallel to that of selling by sample, but, in that case there is by custom an undertaking on the seller's part that the goods are strictly similar to samples.
17. This is really what the claim made by the plaintiffs amounts to. The plaint states that, ' the railway concerned thus admits and accepts that the bags are uniform in size and weight and that the said average weight is the actual weight.' If this is really so by agreement or by custom, the weights shown in the railway receipts would, I think, amount to admissions of the actual weight of each bag. But, no agreement to this effect is admitted and no custom is pleaded, while Rule 15, quoted in the learned trial Judge's judgment from the Goods Tariff, expressly stipulates that ' no admission is conveyed by a railway receipt that the weight as shown therein has been received or that the description of the goods as furnished by the consignor is correct.'
18. The learned trial Judge has noted in his judgment the difficulty in interpreting the expression ' is binding on the company ' used in issue No. 5. I feel a similar difficulty, but answer the question propounded by finding, that on the pleadings it is not an admission of the actual weight of any particular bag or bags of a consignment, but only a statement made for the purpose of calculating freight, of the probable weight of the whole consignment in each case.
19. Appeal allowed with costs. Finding on issue No. 5 set aside with costs of that issue to the defendants.