Shiv Dayal, J.
1. This second appeal arises from a suit for recovery of damages for short delivery and losses in connection with a consignment of 1005 bags of Ammonium Sulphate weighing 2715 mds. and 8 Srs booked at Bombay (Central Railway) to Dhamtari (South Eastern Railway). The consignment was booked on 11th June 1957.
2. When the plaintiff took delivery of the goods at Dhamtari Railway station on 25th June 1957, it was found that one bag (2 Mds. 30 Srs.) was missing, 300 bags torn and badly damaged; 3 bags were totally empty.
3. The plaintiff sued the Central Railway and the South Eastern Railway. The former did not enter appearance and the case proceeded ex parte against it. The latter resisted the suit. The trial Court found in favour of the plaintiff on the issues regarding consignment of goods, their weight, shortage and the quantum of loss incurred. However, it dismissed the suit on three grounds :--
(1) no notice was given to the Central Railway;
(2) the notice given to the South Eastern Railway was not valid; and,
(3) there was no evidence whether the loss occurred on the South Eastern Railway.
4. The plaintiff appealed. His appeal was dismissed by the First Additional District Judge, Raipur, on the aforesaid three grounds.
5. In this second appeal Shri Upadhyaya, learned Counsel for the plaintiff contends that the Courts below were not right in holding that the suit was not maintainable against the Central Railway. In the Courts below it was conceded that no notice was given to that Railway. A copy of the notice is shown to me from the record. But it is dated 14 March 1958, and as the goods were booked on 11th June 1957, the notice was clearly barred by time. The notice which was not given within the prescribed time is of no avail. It is now settled law that each Railway which is to be sued, has to be given notice. See Jetmull Bhojraj v. Darjeeling Himalayan Railway Co. Ltd., AIR 1962 SC 1879 (Para 22). I am unable to accept Shri Upadhyaya's contention that since no specific objection was taken by the Central Railway the objection as to want of notice must be deemed to have been impliedly admitted or waived. Provisions of Order 8, Rule 5, Civil Procedure Code, apply where the defendant resists the suit and flies a written statement. The Rule specifically refers to 'pleadings of the defendant'. Where a written statement is not put in, this Rule is nor attracted. The decision in Wasant Shripat Deshpande v. G.M. Khandekar, AIR 1949 Nag 25, relied on by Shri Upadhyaya is clearly distinguishable on that ground. For these reasons I agree with the Courts below that the suit was not maintainable against the Central Railway.
6. As regards the liability of the South Eastern Railway the first ground for dismissal of the suit is that the consignment was not booked at any station on the South Eastern Railway nor is it proved that the loss actually occurred on the South Eastern Railway. Since it is not disputed that the consignment was delivered to the plaintiff by the South Eastern Railway at Dhamtari Railway Station, according to the law laid down in AIR 1962 SC 1879 (supra) in para 24, the burden had shifted to the delivering Railway (South Eastern Railway) to prove that the damage did not occur on its Railway.
7. Shri Mukerjee has not relied on any evidence in this case to show that the loss did not occur on the South Eastern Railway. In my judgment, the suit was therefore, maintainable against the South Eastern Railway.
8. This brings me to the question whether the notice given by the plaintiff to the South Eastern Railway was valid. The only objection to that notice is that it was addressed to the Chief Commercial Superintendent. The trial Court relied on Section 140 of the Railways Act. That Section, as it stood at the time when the present suit was filed, required a notice to be served on the Manager. It is only by a subsequent amendment of the Section that notice may now be served either on the Manager or the Chief Commercial Superintendent. Section 140 employs the word 'may'. There is nothing to show that the provision is mandatory and 'may' must be read as 'must'. The object of service of notice is to enable the Railway Administration to make enquiry and investigation. I would, therefore, hold that the notice served on the Chief Commercial Superintendent is valid. This view was also taken in Shamsul Huq v. The Secretary of State, ILR 57 Cal 1286= (AIR 1930 Cal 332). It is true that a contrary view was taken in Deorao v. G.I.P. Railway, (1912) 8 Nag LR 34 and Mannalal v. The Secretary of State, 24 Nag LR 1 = (AIR 1927 Nag 276). However the correctness of these decisions was doubted in Govindlal Nityanand Agarwal v. Governor General in Council, AIR 1948 Nag 17.
9. Referring to the short-notes of two unreported decisions. Hirasao and Co. v. Union of India, 1954 Nag LJ (SN) 278 and Ibrahim Ali v. Union of India, 1955 Nag LJ (Note) 368 the trial Court held that the notice served on the Superintendent of Claims was not valid. These decisions, it appears, proceed on the ground that there was no specific direction that the Superintendent of Claims was deputed by the Railway to receive such notices and deal with such claims. The trial Court distinguished the decision in Union of India v. Imperial Tobacco Company of India Ltd., 1959 MPLJ 749 : (AIR 1959 Madh Pra 232) on the ground that the notices were addressed to the Manager and what was condoned was the service of the notice on the Superintendent of Claims. So also Union of India v. Ramnarayan, 1958 MPLJ (SN) 167 was distinguished on the ground that the Central Railway had actually assessed the damages within the purview of the provisions of Section 77 of the Railways Act. In Jetmull's case, AIR 1962 SC 1879 (supra) their Lordships have laid down that a notice under Section 77 should be liberally construed, and, among other things, the Calcutta decision in ILR 57 Cal 1286: (AIR 1930 Cal 332) has been approved.
10. In Union of India v. Ashrfi Devi, 1957 MPLJ 294 : (AIR 1957 Madh Pra 114) notices were given to the General Traffic Manager and the Superintendent of Claims. It was held that since the notices given by the plaintiff in respect of a claim for damages were dealt with by the Superintendent of Claims, this indicated a course of conduct on the part of the Railway Administration from which it could be inferred that due authority was given to the Chief Traffic Manager to receive and deal with notice of claims through the Superintendent of Claims. The notices were held valid. In the present case also the plaintiff's notice was actually received by the Chief Commercial Superintendent who entered into correspondence with the plaintiff (See Ex. P. 14). I am therefore, of the opinion that the notice was valid. This was also the view taken in Ramco Textiles v. Union of India, AIR 1960 Ker 257.
11. Shri Mukerjee strenuously endeavoured to take a new plea in this Court that the goods were booked at the owner's risk rate and as the plaintiff did not prove misconduct or negligence of the railway servants he was not entitled to damages. The learned Counsel relied on Natwarlal v. Union of India, AIR 1957 Madh Pra 157. In my opinion, the defendant cannot be allowed to take this new plea in this Court. It was not pleaded in the written statement that the goods were consigned at owner's risk rate. The question of its consequence does not arise. No other point was urged for the respondent.
12. The appeal is allowed. The judgments and decrees passed by the Courtsbelow are set aside. The plaintiff shall geta decree for (rupees one thousand three hundred ninety eight and twelve paise) Rs.1398.12 p. with costs throughout against theSouth Eastern Railway. So far as the Central Railway is concerned this appeal is dismissed with costs.