1. This is an application by a plaintiff whose suit for damages against a railway has been dismissed with costs. The applicant is the consignee. The consignment was received at the destination and goods are still in possession of the railway. The case of the applicant is that he went to take delivery of the goods at the destination but the goods were not delivered to him. The case of the railway is that the applicant never went to take possession of the goods. It is admitted that the railway did not give the notice contemplated by Section 56 to the applicant. The trial Court held that the applicant never went to take possession of the goods, that the goods are still in possession of the railway and that consequently the applicant was not entitled to sue for damages. It observed that the applicant was at liberty to take possession of the goods from the railway after paying the necessary charges.
2. There is nothing illegal in the judgment of the lower Court. A notice under Section 56 ought to have been issued by the railway to the owner of the goods, provided he was known. It does not appear that the owner of the goods was known to the railway. In the circumstances it cannot be said that the railway contravened the provision of Section 56 by not giving a notice. Further even if the railway had contravened the provisions by not giving the notice, the question still arises whether the applicant is entitled to sue for damages even though the goods are still there in possession of the railway and can be demanded by the applicant. The applicant has failed to show reason or authority for the view that an owner of goods is entitled to sue for damages on the bare ground that the railway failed to give the notice contemplated by Section 56. If the railway sells the goods without giving the notice even though the owner is known, there would arise no question of the owner's taking delivery of the goods and the owner would certainly be entitled to sue for damages. Whenthe goods do not exist, he cannot demand themfrom the railway and all that he can demand isdamages. But when the goods still exist there isno reason to think that he can demand damages inlieu of the goods. I consider that a railway incursno liability by its failure to give the notice whenit does not sell the goods but keeps them in itspossession to be delivered to the owner on hisdemand. The railway is not bound to give noticeof the arrival to the owner if it does not want tosell the goods. This is clear from the language of Section 56, which imposes no duty to give notice unlessthe goods are not claimed by the owner. Theowner would generally be not present at thedestination when the goods reach there. Sometime must necessarily elapse between their arrivaland the owner's going to the railway to claimthem. What time should elapse is not laid down,but if he does not go within what the railwaythinks reasonable time and it proposes to sell themas unclaimed then only will the question of givingthe notice arise. It is for the railway to decidewhat time is reasonable, and so long as it doesnot want to sell the goods it is at liberty to waitfor the owner to come. The owner is not giventhe right to say that after a certain time therailway must give the notice to him and sell thegoods. The provision about notice is enacted forthe benefit of the railway; the object is tosafeguard its position when it sells the goods. Theprinciple of reasonable time is also to be invokedby it in justification of its act of selling; it cannotbe invoked against it by the owner. Thereforethe view taken by the appellate Court wascorrect. As the suit was dismissed, the applicantwas not entitled to costs. The application isdismissed.