1. This is a plaintiff's application under Section 25 of the Small Cause Courts Act, The suit was a suit to recover damages from the railway system, for short delivery, the allegation being that one of a number of bales of cotton yarn had been out and some bundles extracted. The Judge of the Small Cause Court has found on a preliminary issue that the defendant railway companies were absolved from all liability by reason of the provisions of risk note,form H, which had been executed by the plaintiffs. In dismissing the claim he referred to a judgment of this Court in Secretary of State v. U. P. Glass Works, Chandausi : AIR1926All565 . In this case Mr. Justice Daniels gave a judicial interpretation of the contents of the new risk note form H, with which we are concerned in this case, and, relying upon that interpretation, the Judge of the Court below held that the plaintiffs could not recover. The case which was before Daniels, J, was a case of non-delivery which would be covered by Clause (a) of the proviso to risk-note form H. In the present case the plaintiffs could not set up any claim under this clause of the proviso, but it is argued that they could have, and did set up, a claim under Clause (b). Clause (b) deals with pilferage from a package or packages forming part of a consignment properly packed when such pilferage is pointed out to the servants of the railway administration on or before delivery. I have examined the pleadings in this case and it is quite clear, as the Judge in the Court below observes, that the plaintiffs founded no claim on Clause (b) of this proviso. It is true, no doubt, that they asserted that one of the bales had been cut and that a portion of the contents of the bale had been removed, but it was necessary for them to allege much more than this in order to establish any case under Clause (b) and in order to throw on the railway administration the burden of producing evidence to show how the consignment had been dealt with while it was within the administration's control, There is no allegation in the plaint that any pilferage from a package or packages was pointed out to the servants of the railway administration on or before delivery.
2. In the second paragraph of the plaint the short delivery was alleged and all that was stated was that the claim of the plaintiffs had been notified to the railways some four months after, under Section 77 of the Railways Act. On those allegations there was before the Court no case of a claim to hold the railway administration liable under Clause (b) of the proviso. That being so, I think, the suit was, for this reason, bound to fail. I certainly would not allow the case to be re-tried now so as to give these plaintiffs an opportunity of introducing evidence at this stage, evidence which it would probably be impossible for any Court to accept. The application is therefore refused with costs.