1. Civil Revision Petition Nos. 710 and 711 of 1982 by the plaintiffs are directed against the order dated3-11-1981 passed by the Principal Civil Judge, Mysore, in O.S. Nos. 163 of 1976 and 205 of 1976 dismissing the applications filed by the plaintiffs under Order 14 Rule 5 read with Section 151 C.P.C. and refusing to recast the issue. Civil Revision Petition No. 712 of 1982 by the plaintiff is directed against the order dated 3-11-1981 passed by the Principal Civil Judge, Mysore, in O.S. No. 159 of 1976 deleting the issue.
2. The common facts in all these three cases are thus :
The plaintiff in each case placed an order for delivery of some quantity of Methy with defendant-3. Defendant-3 consigned the goods in question to the out agency defendant-2 whose duty is to hand over the goods to defendant-1 for carriage and delivery to the consignee plaintiff in each case. According to the plaintiff, on production of the railway receipts, the goods were not delivered to him. Hence the plaintiff in each case filed the suit for recovering damages.
3. Defendant-1 Railway administration contended that the consignor defendant-3 and the out agencydefendant-2 had conspired together and the consignor defendant-3 had not actually delivered the goods to defendant-2 and that dafendant-2 in turn had not sent the goods to the railway administration for carrying them to the destination. Thus, in short, the railway administration-defendant-1 contended that it was a case of fraud perpetrated by defendants-2 and 3 in conspiracy with each other.
4. In O.S. Nos. 163 and 205 of 1976, an issue was framed to the effect whether the plaintiff proves that his consignorAgar Brothers delivered 50 bags of Methy to the defendant out agency contractor atSitamau out agency and obtained the railway receipt. The plaintiff in both these suits makes a grievance that the burden ought to have been thrown on defendant-1. In the third case O.S.No. 159/76 the issue read as to whether defendant-1 proves that the consignor had not delivered the bags of Methy to the out agency etc., The railway administration-defendant-1 filed an application in this suit O.S.No. 159/1976 to delete issue No.2 and place the burden on the plaintiff.
5. The plaintiff in each of these three cases being aggrieved by the said order, has come up with these revisions.
6. It is undisputed that the railway receipts or invoices had been issued by the out agency defendant-2 purporting to have received the Methy bags from the consignor defendant-3 and that those railway receipts or invoices have been endorsed in the name of the plaintiffs in each of the three cases. In Morvi Mercantile Bank Ltd., By Official Liquidator- v. - Union Of India, : 3SCR254 , it has been clearly held that the railway receipts or invoices are documents of title. That they are documents of title, cannot be disputed at all. It has been held in Union of India and Ors. - v. - Sugauli Sugar Works (P) Ltd., : 3SCR614 as:-
'The liability of the railway was that of a bailee. The consignments were booked at railway risk. The onus of proving that the railwayemployees took the necessary amount of care and that they were not guilty of negligence rested on the Railway Authorities.'
Perhaps this decision is in consonance with the principles laid down in Section 73 of the Indian Railways Act. It has been held in Union Of India - v. - Kuthari Trading Co., Ltd., AIR 1969 Assam 84, in para 11 on page 88 as:-
'It is proved and admitted in the instant case that the goods in question were booked in the railway to the consignee and the goods have not been delivered to the consignee. In a suit brought against a common carrier for the loss, damages or non-delivery of goods entrusted to him for carrying it is not necessary for the plaintiff to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his servants or agents. The burden of proof of absence of negligence is thrown upon the common carrier, on the theory that the loss or damage to the goods is prima facie due to negligence of the common carrier.'
It has been held in Radheshyam Agarwal - v. - Union of India and others, : AIR1980MP95 as :-
'The first question, therefore, is whether there was in fact delivery of the goods by the consignor at the forwarding station to the railway administration for carriage to Jabalpur. The railway receipts do raise a presumption of delivery of goods by the consignor to the railwayadministration at the forwarding station. The question then is whether the railway administration has rebutted that presumption.'
7. Thus these rulings make it absolutely clear that the railway receipts raise a presumption of the delivery of the goods by the consignor to the railway administration at the forwarding station. Defendant-2 out agency after all is an agent of defendant-3. Therefore when there is an initial presumption of the delivery of goods, then the burden naturally will have to be thrown on the carrier defendant-1 to prove the non-delivery of the goods to him. Defendant-1 carrier is at liberty to rebut that presumption.
8.Therefore, under these circumstances, the orders passed by the lower Court in all the three cases are set aside. All the three revisions are allowed. The lower Court is directed to frame an issue in all the cases casting the burden on defendant-1.