K.M. Dayal, J.
1. Heard Sri Vinod Mishra for the appellant and Sri Vinod Swarup for the respondents Nos. 1 and 2.
2. The brief facts of the case are that the defendant No. 2 (3?) booked nine wagons of wheat from Bombay through the defendants Nos. 1 and 2 and the plaintiff was the consignee. The goods were received in partly damaged stage. Out of nine wagons, four wagons were found to be partly damaged and there was also shortage. The suit was filed for damages.
3. A written statement was filed by the defendants Nos. 1 and 2 alleging that the goods were not in a rotten stage when delivered and several other pleas. The defendant No. 3 filed a written statement alleging that the goods when despatched by it were in perfect and sound condition and it was not liable for any loss or damages.
4. . The trial court decreed the suit holding that the defendants Nos. 1 and 2 were responsible for the damages due to wetting and loss in weight.
5. An appeal was filed by the Railway Administration which has been partly allowed by the court below. The court below upheld the decree for the price of the goods found missing i.e. for the shortage amounting to Rs. 1074-15, but dismissed the suit so far it related to the wetting and rotting of the wheat.
6. The learned counsel for the appellant argued that the court below has set aside the decree on the ground that the plaintiff had failed to prove that the goods were booked in a proper and good condition. That argument was not available to the court below as that was not the case of the defendants Nos. 1 and 2 and no issue was framed to invite the parties to lead evidence thereon. After looking to the plaint and the written statement filed by the defendants and [the issues reproduced in the judgment I find that there was no issue regarding the condition of the goods at the time of their booking. I agree with the learned counsel for the appellant that as the point did not arise from the pleadings or the issues, the court below was not justified in carving out a new case for the Railways and in dismissing the suit on thatcount. Had the Railways pleaded in their written statement that the goods we're despatched in a damaged condition, certainly an issue would have arisen and the plaintiff would have been called upon to lead evidence on the same. But as there was no such plea, no issue arose.
7. The learned counsel for the respondent relied upon Section 75-A of the Railways Act and contended that as the plaintiff himself had consented to the despatch of the goods in open wagons, the Railways would not be liable. I am not prepared to accept that argument. It is admitted by both the parties that the dosed wagons having not been available, the Railways at their convenience offered to send the goods in open wagons and covering the same with a tarpaulin for the safety of the goods. As every wagon was covered by a tarpaulin, it cannot be said that the goods were sent in open wagons. In any case the tarpaulins and wagons both belonged to the defendants and in case there was some defect in the wagons or tarpaulins which permitted seepage of water inside the wagons, it would be Railways which could be liable. As the goods were sought to be sent in wagons covered by tarpaulins, it could not be said that the plaintiff agreed for transmission of goods in open wagons. Section 75-A, Railways Act will have no application in the instant case.
8. In the instant case the defendantNo. 3 has specifically pleaded in paragraphs 7 and 9 of the written statement that the goods were consigned in good and proper condition. Though no additional written statement was filed by the Railways, it was proper that an additional written statement would have been sought or at least the matter would have been clarified under Order 10, C. P. C. before framing the issues. As it was not done, the Railways had been prejudiced. Under the circumstances it would be expedient that an issue be framed on the condition of the goods when consigned by defendant No. 3 and the parties be permitted to adduce evidence on the same. Under the circumstances the judgment and decree of both the Courts below are set aside. The appeal is allowed and the case is remanded to the trial court for deciding the matter after framing an issue as mentioned above. The ultimate result of the litigation shall determine the liability for costs in the present second appeal.