1. The Court of Small Causes decreed the plaintiffs' suit for damages for loss caused to a consignment of 'goods sent from Delhi to Budaun. There were five bales of cloth consigned and it is admitted that all the five bales were delivered. The shortage was due to some goods slipping out of some of the bales. The consignment was delivered to the company under risk-note form A which is to be used when the consignments are already in bad condition or so defectively packed as to be liable to damage, leakage or wastage in transit. The learned Judge of the Court of Small Causes, on the authority of two rulings of this Court, held that it was first necessary for the railway company to prove loss before the plaintiffs can be called upon to prove that such loss arose from misconduct on the part of the railway administration or servants. The cases cited are E.I. Ry. Co. v. Makhan Lal A.I.R. 1923 All. 605 and E.I. Ry. Co. v. Kishan Lal Tirkhamal, A.I.R. 1924 All. 7. In both those cases it will be noticed that there was short delivery of bags or bales.
2. In one case the delivery was short by one cask of oil and in the other by two bags. In the second case the learned Judge (Daniels, J.) has explained the foundation for these two judgments. According to him the plaintiffs were suing in those cases for something which was outside the protection afforded by the note, namely breach of the contract to deliver. In neither case the numbers of bags and casks were specifically delivered and the question did not arise of something missing from a particular bale or a particular cask. The railway company had undertaken to deliver a certain number of casks or bags in good, bad or indifferent condition, and having failed to do so as regards the number they would principally be liable to explain the shortgage. The present is not such a case. The number of bales was correctly delivered. What was missing was something out of the bales. The bale after something was missing would be the condition of that bale at the time of delivery and the railway company, under the protection granted to it under risk-note A, would not be responsible for that condition except upon proof that the loss was due to misconduct on the part of the railway administration or servants. This view was taken by a learned Judge of this Court in Bansi Ram v. B.N. W. Ry. Co., : AIR1929All124 . The Judge of the trial Court has quoted this ruling but does not appear to have taken the trouble of reading the whole of it. The learned Judge there has specifically considered the question of an article or two slipping out of a bale or a bag by reason of imperfect or unsuitable packing. In the present case the law has not been correctly interpreted by the trial Court. The company was not liable to pay damages. The decree of the trial Court is set aside and the plaintiffs' suit dismissed with costs in both the Courts.