1. This is a Civil Revision from the decree of the Court of Small Causes. The plaintiff sued the Railway for damages on account of the 'non-delivery' of one of four cases of matches. The Court of Small Causes found as a fact that 'the box I think was thrown out by any thieves or thief who got into the wagon when the train stopped near the signal.' He did not find whether or not this temporary stopping of the train in his opinion made it a case of theft from a running train. He went on further to hold that inasmuch as the guard saw the box thrown out of the train and made no attempt to recover it beyond reporting the loss at the next station, there was 'wilful neglect on the part of the Railway and on this ground he held that the Railway were not protected by the owner's risk-note form B. The Railway further raised the defence that six months notice had not been given to the Agent of the Railway. But this defence wag rejected, the Judge of the Small Cause Court relying on East Indian Railway Company v. Kali Charan A.I.R. 1922 Pat. 106 a case in which Mr. Justice Jwala Prasad of the Patna High Court held that there is a difference between a suit founded on 'loss' and a suit founded on 'non-delivery,' and that in the latter case, which is also the case here, no notice was necessary. The Railway have applied in revision to this Court urging firstly, that the lower Court, having found that the goods were stolen from a running train, it ought to have dismissed the suit; and, secondly, that the lower Court erred in holding that the railway through its servants ought to have made some effort to recover the box. I need not deal with these grounds (the first of which is in itself not an accurate statement of the lower Court's finding) as the finding of wilful neglect is a finding of fact. The next two grounds of revision deal with the question of notice. Notice to the Agent was admittedly despatched after the lapse of more than six months. The main question, therefore, calling for decision here is whether the fact that the suit was based on 'non-delivery' takes the case out of Section 77 of the Railways Act which calls for notice to be given within six months. It is clear that what the plaintiff wants in this case and in all similar cases is compensation because he has not got his goods. He does not care whether the Railway have got his goods and are withholding them or whether they have lost his goods or whether they have been stolen or whether they have delivered them to somebody else. Regarded from this point of view there is certainly no material difference between a suit for 'loss' and a suit for 'non-delivery.' It may be admitted at once that for some purposes there is a material distinction between a suit for 'loss' and a suit for 'non-delivery', e.g., for the purposes of the Limitation Act, Articles 30 and 31. The reason is sufficiently obvious but it is clear that while there may be a material distinction for the purposes of the Limitation Act, and even for the purposes of the Carriers Act, Sections 9 and 10 (Section 10 is actually repealed by the Railways Act) it does not follow by any means that there is any effective distinction for the purposes of Sections 72 and 77 of the Railways Act and of the risk-note form B. Mr. Justice Jwala Pershad in the Patna case East Indian Railway Company v. Kali Charan A.I.R. 1922 Pat. 106 to which I have already referred, gave as one reason for holding that for the purposes of Section 77 there is a material distinction between 'loss' and 'non-delivery,' that in the case of the former the Railway required notice in order to give them a chance of enquiring into the loss and how it occurred, while according to the learned Judge in the case of 'non-delivery' notice for this reason would not be necessary to make any enquiry. I am unable to appreciate this distinction. It would seem that the Railway might require equally an opportunity for enquiring into the causes which had led them to fail to deliver. I should therefore find myself in any case unable to assent to the proposition that for the purposes of Section 77 there is any difference between a suit for 'loss' and a suit for 'non-delivery.' So far as the ruling to which I have referred and on which the lower Court based its judgment is concerned I am relieved from the necessity of considering id in greater detail as it has been overruled as it would seem in G.I.P. Railway Co. v. Jitan Ram (1919) P.H.C.C. 150. A reference to this latter case will show that the case quoted in the earlier portion of the judgment. The Agent, East Indian Railway Co. V. Ajudhia Pershad A.I.R. 1922 All. 280 must certainly be misquoted for East Indian Railway Co. v. Kali Charan A.I.R. 1922 Pat. 106. I am therefore of opinion that the fact that the suit was for 'non-delivery' did not absolve the plaintiff from giving notice to the Agent within six months.
2. I may mention here that the defendant Company has relied on Ram Sahai Chhida Lal v. East Indian Railway Co. A.I.R. 1922 All. 280, Cawnpore Cotton Mills Co. v. Great Indian Peninsula Railway A.I.R. 1923 All. 301 and the East Indian Railway Co. v. Sri Ram Mahadeo A.I.R. 1924 All. 177. I only mention these cases because they have been pressed upon my attention but they appear to me to have no bearing on the distinction between 'loss' and 'non-delivery' for the purposes of Section 77.
3. The next question for consideration is whether I ought to set aside the decree or whether I should hold that substantial justice having been done this Court should not interfere merely on the ground that the notice was two or three days late. I am not, however, satisfied that substantial justice has been done. I am prima facie in revision bound by a finding of fact even in a case under Section 25 of the Court of Small Causes and I have therefore accepted the lower Court's finding of fact that there was 'wilful neglect' and I should not consider any opinion of my own to the contrary a justification for setting aside the decree on that ground; but I hold that I am entitled to take into consideration the grounds of that finding in considering the question whether I should give the defendant Railway the full benefit of the fact that notice was not served in time even though it was only two or three days beyond time and even though no earlier notice would have enabled them to recover the property, It is clear that if this was a theft from a running train and no further wilful neglect was proved the Railway would be absolved by the risknote. The learned Judge of the Court of Small Causes has not found whether or not the theft was from a running train. If he meant to hold that a stop for a few minutes at the signal meant that the train ceased to be a running train, I should find great difficulty in agreeing with him. Ho has however apparently based his decree on what ha finds to be a wilful neglect and as far as I am able to ascertain the only basis of that finding is that the guard know that the box had bean thrown out and neither ha nor anybody else took any step to endeavor to recover it and he confined his interest in the matter to making a report. I feel great doubt myself as to whether there were really any steps which the guard could have taken which would have led to the recovery of the box and this means that I have grave doubts as to whether the finding of wilful neglect was justified. To those doubts I am entitled to give weight when determining the question whether the Bail way should be given the full benefit of their technical plea that they had been given notice a few days beyond time. I hold therefore that they are entitled to the full benefit of that plea which I have decided in their favour. I accordingly allow the application in revision and set aside the decree of the Court of Small Causes with costs on the higher scale.