1. This though an appeal under Order 41, Rule 11, we have heard at considerable length, because while we are of opipion that we are in this case invited to consider a finding of fact, we are also of opinion that a finding of negligence or a finding that there was or was not default is not necessarily in all cases a finding of fact, if the finding has not been approached from the proper legal standpoint.
2. The plaintiff has proved that on 17th February 1925 he sent a registered and insure cover to a consignee in Calcutta, which cover is said to have contained a currency note of the value of one thousand rupees.
3. In the ordinary course the plaintiff's doubts might have been expected to be aroused within a few weeks at the utmost if he did not receive either from the post office or his consignee an intimation that the insured letter had been duly delivered. The plaintiff has asked the Court to believe that his suspicions were not so aroused until a year later, when he received a copy of his accounts with his consignee and found that he had not been credited with one thousand rupees. This question of the plaintiff's statement as to when he acquired knowledge of the loss of the thousand rupees is only of importance in a case of this description in second appeal in weighing the question of the burden of proof. Had lie taken any proper steps at all to satisfy himself, he would have been able to make a claim for his money from the post office at any time within three months.
4. Even in June 1926, when he learnt of the alleged loss of the money, he did not bring a suit, but contented himself with at some date during the next two years - we have no more precise information - bringing a criminal case against the postmaster at the despatching office. As a result of that trial, the postmaster, the present defendant-respondent, was acquitted.
5. Now, when the period of limitation was on the point of expiry or, as the District Judge says, on the last day of limitation, the plaintiff brought the present suit. Again, most of these facts are only of importance in considering the question of the burden of proof.
6. To succeed in this suit the plaintiff had to prove that the postmaster and been guilty of causing the loss of the insureid letter 'fraudulently or by his wilful act or default (Act No. 6 of 1898, Section 6.)' The only fact proved against the defendant is that when he sent the list of insured articles to the sorter in the ordinary course of his duties, he mentioned in that list only two articles, whereas he should have mentioned three, the third being apparently the missing letter which has led to this suit.
7. The learned District Judge has weighed the evidence carefully and has found that the plaintiff has failed to prove that the loss was 'caused by' the default of the defendant. It is to be noticed that the legislature has presumably deliberately, avoided using the word 'negligence,' and the word 'default' is manifestly of somewhat stronger import. We should be inclined to hold that in Section 6, Post Office Act, it bears the 4th meaning given to it in 'Murray' or the 'Oxford' Dictionary.
8. Failure in duty, care, etc., as the cause of some untoward event.' The use of the word 'cause' both in this definition and Section 6, Act 6 of 1898 (the Post Office Act) is noticeable.
9. The learned Judge of the lower appellate Court has found in fact that there are causes to which the loss might have been attributed other than the default of the defendant. In his view, while an omission on the part of the defendant has been proved, that omission might only be one link in the chain of circumstances and might not have been the cause of the loss. For instance, he suggests that it might have been lost or stolen before ever the list was written. It is not necessary for us to speculate but, so far as the evidence goes, there are manifestly circumstances which might have led to the loss of this insured letter without the loss being attributable diffectly to the omission in the list. Just as a finding of negligence is a finding of fact, so, ordinarily speaking, is a finding as to whether a default was or was not the cause of a loss. This, of course, does not moan that a finding as to default can never be attacked as a finding on a point of law. But if the question has been approached from the proper legal standpoint, then we are of opinion that it is a finding of fact. In the present case, we see no reason to believe that the Judge has not approached the case entirely in the right way. We hold his finding therefore in the present case to be a finding of fact; and we may add, we see no reason to disagree with him. The appeal is dismissed under Order 41, Rule 11, Civil P.C.