1. This is a revision from an order of the Court of Small Causes.
2. The plaintiff firm despatched 57 bundles of cotton weighing 63 maunds and 2 seers from Balrampur station, which is on the B.N.W. Railway, to the Agra Fort, on the B., B. and C.I. Railway. According to the allegations in the plaint the staff of the defendant Company when asked, gave out the rate of freight on cotton to be Rs. 1-8-0 per maund and it was on this understanding that the plaintiff despatched the goods from Balrampur to Agra Fort under the Railway Receipt No. 9937, dated the 19th of September 1921. The plaintiff goes on to allege that, though the actual weight of the goods despatched was 63 maunds, the staff of the Railway Company illegally and unjustifiably charged Rs. 223-2-0 for 108 maunds, and that the extra amount was paid by the plaintiff under protest which he is entitled to recover from the defendant. The written statement which was filed by the defendant Company was very vague and somewhat evasive. Referring to the allegation of the plaintiff that the staff of the defendant Company when asked had given out that the rate of freight on cotton would be Rs. 1-8-0 per maund and that it was on this understanding that the plaintiff despatched the goods, the written statement merely stated 'not admitted.' The defendant Company, however, went on to 'plead that out of the consignment, 57 bundles were loaded in one wagon, which left no room for the remaining commodity to be loaded in, that under paragraph 6 of the instructions printed as notice to the consignors on the back of the Railway Receipt and Forwarding Note form, the Company reserved the right of re-weighment, re-measurement and re-calculation of freight and that the charges were correctly recovered. The learned Judge of the Court below in his judgment appears to have accepted the plaintiff's case that the Railway Authorities realised the extra amount at the destination. The learned Judge accepted the statement of the Loading Clerk to the effect that after loading 52 bundles of cotton no place was left for loading any more goods. It was the defendant's case as disclosed by the Loading Clerk's evidence that as these articles were bulky they could not be loaded in one four-wheeled waggon and that these bundles were despatched in a bogie carriage, i.e., an eight-wheeler. The learned Judge, however, overruled the defence on the ground that it had not been shown on behalf of the defendant that the 52 bundles in question could not be loaded in a four-wheeled waggon. This is not quite consistent with the remark previously made as to the statement of the Loading Clerk. The facts as alleged by the defendant Company seem to be that ft bundles of cotton were so bulky that they could not all be loaded in one small waggon.
3. There can be no doubt that under Rule 59 of the General Rules when goods tendered for conveyance are of such description that owing to their bulk, measurement, or other cause, it is found impossible to load each broad-guage waggon to the extent of 120 maunds and metre or narrow-guage waggons 18 maunds, such goods will be subject to a minimum charge of 120 and 81 maunds respectively, per waggon, unless any special exception is noted. The above charges are based on four-wheeled waggons. Should the conditions of the consignment involve the use of larger vehicles, the charges will be increased in the proportion of one bogie carriage for two vehicles.
4. Fifty-seven bundles of cotton weighed about 52 maunds. If it is a fact that all the 57 bundles could not be loaded in one four-wheeled waggon it is patent that owing to their bulk it is impossible to load 81 maunds of goods in a narrow-gauge waggon. Under Rule 58, therefore, it is clear that the defendant Company was entitled to charge at the minimum rate of 81 maunds per waggon. If the goods were carried in two small four-wheelers or in one bogie carriage then the Company was entitled to charge for 162 maunds.
5. The learned Judge seems to have drawn a distinction between 'bulky goods' and 'goods in bulk.' The expression 'goods in bulk' does not find place in Rule 59 at all and its true meaning is altogether irrelevant. There can be no doubt that the bundles of cotton were bulky and it was in consequence of their bulk that 81 maunds of the goods, could not be loaded in one small waggon. The Railway Company was certainly entitled to charge at the minimum rate of 81 maunds per waggon. In this view of the matter the decree of the learned Judge of the Court of Small Causes would not be quite correct.
6. The learned Vakil for the plaintiff-respondent, however, supports the decree of the Court below on a different ground. His case is that according to the allegations in the plaint which were not expressly denied by the defendant and which have been assumed to be correct by the learned Judge of the Court below there was an express agreement between the plaintiff and the Railway Company to carry the goods at the maund rate, and, therefore, it is not now open to the Company to alter the terms of the contract and demand a charge on the basis of waggon rate. The Railway Company in their written statement themselves referred to paragraph No. 6 printed on the back of the Railway Receipt which was to the effect that they had reserved a right of re-weighment, re-measurement and re-calculation of freight, etc. This clearly implies that there was a re-calculation and the extra charge was found recoverable on the recalculation. As I have already noted, there was no express denial of the plaintiff's allegation that an assurance had originally been given by the Railway authorities that the goods would be carried at the maund rate.
7. If there was an original contract to carry the goods according to the maund rate then it is clear that the defendant Company would not be entitled t6 alter that agreement. The rule on which the defendant relied is quite similar to the rule which was under consideration in the Full Bench case of Chunni Lal v. The Nizam's Guaranteed State Railway Company Ltd. 29 A. 228 : 4 A.L.J. 80 : 2 M.L.T. 42 : A.W.N. (1907) 21. A similar point arose in the case of Alla-ud-din v. The G.I.P. Railway Company 34 Ind. Cas. 104 : 14 A.L.J. 494. At page 232 of the Full Bench case cited above, it was pointed out that a rule of this kind reserving the Railway Company's right of re-measurement, re-weighment, re-calculation and re-classification of rates, terminal and other charges at the place of destination did not give the Railway Company power to alter the contract between the parties and charge maund rate in lieu of waggon rate. The second case mentioned by me was a case where the Railway Company wanted to alter the maund rate into waggon rate and their right to do so under the General rules was negatived. In view of these pronouncements it is clear that if the original contract between the parties was that the goods should be carried according to the maund rate it would not be open to the defendant Company to alter that contract and charge according to the waggon rate.
8. The learned Vakil for the applicants in rejoinder has urged that the defendant Company did not admit that there was any such original contract, not did they admit that the extra amount charged at the destination was based on an alteration of the rates.
9. The plaintiff did not go into the witness-box nor did he produce any evidence. The Railway Company, which presumably is in possession of the railway receipt and the forwarding note, has also withheld them. The evidence on the point, therefore, is very meagre.
10. It is contended on behalf of the respondent that under Order VIII, Rule 5, if a matter is not denied specifically or denied by necessary implication or if it is merely stated to be 'not admitted' in the written statement it should be taken to have been admitted. Reference is made to certain old English cases where pleadings were strictly construed, as the rules of pleading in England are very stringent. One would have thought that where a matter is expressly stated to be 'not admitted,' it cannot be deemed to be admitted, for it is at least denied by implication. The punctuations in Rule 5, however, do appear to support the contention of the learned Vakil for the respondent, but I do not purpose to go into this matter in any further detail, because there is a proviso to that rule which says that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. Under this proviso, therefore, even if there be an implied admission by the defendant, the Court can require evidence to prove it.
11. Having read the pleadings I am of opinion that the question of there having beta an express contract to carry the goods according to the maund rate has not been properly tried by the Court below. If there really was such a contract then on the rulings referred to by me the defendant cannot charge waggon rate in lieu of maund rate. On the other hand, if there was no such contract at all and the Railway Company had originally charged at the waggon rate but there was a miscalculation in the amount charged then certainly it would be open to the Railway Company to recover the balance.
12. I, therefore, allow the application and, setting aside the decree of the Court below, remand the case to that Court for disposal according to law. The parties will be at liberty to produce fresh relevant evidence if they think necessary. As the whole trouble has been caused by the vagueness in the defendant's pleading I direct that the parties should bear their own costs in this Court. The costs in the Trial Court should abide the event.