Yashoda Nandan, J.
1. This revision by the defendant has been referred to a larger Bench by a learned single Judge because he entertained doubt on the question as to whether the decision rendered in Prabhu Lal v. Union of India (1970 All LJ 28) has been rightlydistinguished by learned Single Judges in Babu Ram Kanhaiya Lal v. Union of India (1974 All LJ 912) and Kanpur Leather Corpn. v. Union of India, in Second Appeal No. 4202 of 1965, decided on October 24, 1973 (All.).
2. The relevant facts giving rise to this revision, are that the plaintiff-respondent consigned a wagon load of 675 tins of mustard oil from Belanganj to Cuttack at railway risk. The packing undisputedly was defective and at the destination some of the tins despatched were found to be damaged and partly empty while some others were found to be entirely empty. There being a short delivery of the consignment, the plaintiff instituted a suit for recovery of Rs. 1,000/- against the defendant ap-plicant. The claim was resisted on the ground that there was defective packing of the goods consigned and consequently the railway was not responsible for the loss, if any. The trial court dismissed the suit on the ground that under Section 77-C (2) of the Indian Railways Act the burden lay on the plaintiff to prove misconduct and negligence on the part of the defendant and since the plaintiff had failed to lead any evidence on this question, the suit could not succeed. On revision, the learned District Judge allowed the revision and decreed the claim holding that since the railway had led no evidence showing how the consignment had been dealt with it had failed to discharge its burden as a bailee and hence the plaintiff's claim was liable to be decreed. In the view of the learned District Judge, the railway administration should have led evidence establishing careful handling of the consignment and lack of negligence on their part. The revision, as already stated, has been referred to a larger Bench because of the apparent conflict of opinion between a Division Bench decision of this Court and Single Judge decisions.
3. The Division Bench consisting of W. Broome and G. C. Mathur, JJ., in Prabhu Lal v. Union of India (1970 All LJ 28), held referring to Section 74-A of the Indian Railways Act, 1961 and Section 77-C of the amended Act, that to attract these provisions the following three conditions must be satisfied :--
'(1) that the goods, which are tendered to a railway administration for book-fng, are either in a defective condition or are defectively packed or packed in a manner not in accordance with the general or special order prescribing the manner of packing :
(2) that the fact of such defective condition or defective or improper packing has been recorded by the consignor or his agent in the forwarding note; and
(3) that, as a consequence of the defective condition or defective or improper packing, the goods are liable to deterioration, leakage, wastage or damage.'
4. In the opinion of the Bench which decided the case it was not necessary for the railway administration for invoking the protection of the abovementioned sections to establish that the loss or shortage was the direct result of the defective packing. If the railway administration successfully established that the three conditions set out above were satisfied, then those provisions would apply and the plaintiff could not succeed except upon proving negligence or misconduct of the railway administration or its servants. Jt was further observed that 'of course if it is shown that the loss, wastage or leakage, etc. could not have arisen from defective packing, etc. but was due to some' extraneous cause, unconnected with the defective packing etc., Section 74-A or Section 77-C will not protect the railway administration. All that the railway administration has to show is that the loss, wastage or leakage, etc. was liable to occur on account of the defective condition or packing. The protection would not be available if the plaintiff shows that the loss etc. was not relatable to the defective packing, etc., but was due to some outside cause'.
5. M. P. Mehrotra, J. in Babu Ram Kanhaiyalal v. Union of India (1974 All LJ 912) (supra) considered the scope of the abovementioned decision and seems to have been of the opinion that even if the railway aministration established that the consignment was defectively packed, under Section 74-A of the 1961 Act, it must further give evidence to show how the consignment had been dealt with during the transit as the said fact was within its special knowledge and under Section 106 of the Evidence Act, it was required to disclose initially the manner in which it had handled the consignment and in the event of its failure to disclose this special fact within its special knowledge, the court would draw an inference against the railways. A positive finding was recorded by the learned single Judge that the packing of the consignment was defective. The test provided in Prabhu Lalv. Union of India (1970 All LJ 28) (supra) was consequently satisfied and according to the Division Bench view of this Court it was for the consignee to establish that the loss could not have been relatable to the defective consignment. On the finding recorded that the consignment was defectively packed, the observations made by M. P. Mehrotra, J. are clearly in conflict with the Division Bench decision in Prabhu Lal v. Union of India which was binding on the learned Single Judge. The decision by A. Banerji, J. in Kanpur Leather Corpn. v. Union of India, Second Appeal No. 4202 of 1965 (All) is clearly distinguishable. The learned Judge recorded a finding that one of the three conditions, which, according to the decision in Prabhu Lal v. Union of India was liable to be established by the railway administration, had not been established in the case before him. The decision in the abovemention-ed case cannot be consequently considered as running counter to the views expressed in Prabhu Lal v. Union of India. In the instant case, there is a concurrent finding by both the courts below that the mustard oil despatched by the plaintiff-opposite party had been consigned in tins which were not packed in accordance with the prescribed rules on the subject. The court below, however, relying on Babu Ram Kanhaiya Lal v. Union of India, held that since the applicant had failed to lead any evidence to show how the consignment had been handled during transit the claim of the opposite party must be decreed. We have already noted that the decision relied on by the court below is in conflict with the opinion of a Division Bench of this Court. The court below has noticed that the plaintiff has led no evidence to establish the negligence or misconduct of the railway or its servants. Under the circumstances, it was for the plaintiff-opposite party to have established by positive evidence that the loss in the consignment could not have been occasioned as a consequence of the defective packing of the congignement of oil. The plaintiff-opposite party led no evidence whatsoever.
6. This revision must consequently succeed and is hereby allowed. The judgment and decree of the court below are set aside and that of the trial court restored. The applicant will be entitled to its costs from the opposite party.