S.M. Sikri, J.
1. This appeal by Special leave is directed against the judgment of the Punjab High Court (Circuit Bench) at New Delhi, in Letters Patent Appeal, whereby the High Court dismissed the appeal of Munshi Ram, appellant. This appeal arises from a suit filed by Munshi Ram against the Union of India and three others, claiming that a decree for Rs. 4178. 58 be passed in favour of the plaintiff against the defendants. It was alleged in the plaint that A. Shankar Lai &Co.;, Bombay booked a consignment of 180 begs of potatoes of first class quality (Emphazis. supplied) from Bombay to New Delhi by a Railway Receipt dated the 9th November, 1959, consigned to self. The Railway Receipt was endorsed in favour of the plaintiff. The consignment instead of reaching Delhi on or about 15. 11. 59 reached on 2. 12. 59 The contents were to a very great extent damaged, foul smell was coming out of it and the Potatoes, according to the plaintiff, became unfit for human consumption. The plaintiff alleged that he sorted out sound or slightly damaged potatoes, refilled them in 92 bags and look the delivery of these 92 bags only, leaving the rest according to the instructions given in writing by the Goods Suppervisor. Then it was claimed that if the consignment had reached in sound condition and in time it would have fetched Rs. 7873. 62 n. p. but as the plaintiff could get only Rs. 3694. 62. n. p. out of the sale of 92 bags, he had suffered a loss of Rs. 4178. 58 n p simply due to the negligence and mis-conduct of the railway employees.
2. In the defendant's written statement it was stated that the goods had been booked at the owner's risk rate and the railway is protected unless gross negligence or misconduct is proved on behalf of the employees of the railway. It was admitted that the goods were slightly damaged, but denied that the potatoes were unfit for himan consumption. It was asserted that plaintiff took all the 180 bags on a gate pass issued by the railway and no bag was left behind. The plaintiff took the goods away without any assessment being made.
3. The trial Court framed a number of issues, but we may only mention the following
(2) what is the extent of damage to the suit consignment ?
(3) what is the normal period of transit?
(4) whether the damage to the suit consignment was due to the negligence or misconduct on the part of the railway administration concerned or their employees?
(5) whether the plaintiff obtained delivery of only 92 bags under the direction of the Goods Supervisor, New Delhi.
(6) To what amount of damage, if any is the plaintiff entitled?
4. The Trial Court held that the plaintiff took delivery of whole of the 180 bags and not 92 bags as alleged by the plaintiff and further that although there was some damage to the goods in suit but it is not certain as to what was the actual damage to the goods. He further held that the extent of the damage could not be ascertained and, therefore, decided issues Nos. 2 and 5 against the plaintiff.
5. On issue No. 3 he held that the normal period of transit between Delhi and Bombay was 8 or 9 days.
6. On issue, No. 4 he held that the damage to the goods was to a very great extent due to unreasonable delay on the part of the railway and the delay being unreasonable the same is prima facie evidence of negligence on the part of the railway.
7. On issue No. 6 he held that the plaintiff is not entitled to any damage whatsoever because the real amount of damage could not be ascertained.
8. The plaintiff appealed to the District Judge. He dismissed the appeal on the ground that the delay can be due to causes other than negligence or misconduct of the railway administration or the employees, and it cannot be presumed from mere delay in delivery, that there was negligence or misconduct, in case the goods are booked at owner's risk rate.
9. The plaintiff then filed an appeal to the High Court. The learned Single judge dismissed the appeal in limine.
10. The plaintiff then filed a Letters Patent Appeal. The High Court, however, took the point that there was no sufficient material on the record to prove that the damage to the goods was caused in the course of the transportation.
11. According to the High Court, the plaintiff had failed to establish that the goods were booked and entrusted to the railway administration at Bombay for carriages to New Delhi in a good condition. There is not an iota of evidence on this point.
12. The High Court observed:
In this state of affairs, when it is not proved that the deterioration of goods occurred in the course of transit, the very basis of the appellant's claim is lacking. In view of this patent lacuna in the appellant's evidance we have no hesitation in holding that the learned single Judge was right in rejecting the appellant's appeal, in limine.
13. The learned Counsel for the appellant, Mr. A.V. Rangam Urged that the High Court has decided the appeal on a point which was admitted in the written statement. He pointed out that in para (1) of the plaint it was stated that the potatoes were of 'first class quality' and the Union of India in their written statement stated that the contents of para (1) of the plaint art correct. He contended that the words 'first class quality' include their state or condition and, therefore, the Union of India had admitted that the goods were of 'first class quality' when they were booked. He referred to Ballentine's Law Dictionary. The meaning of word 'first class' given therein is that 'a term often used in describing goods in a contract of sale and implying that they are such as correspond with the best of their kind in general use, not merely with the best of a single manufacturer, unless, indeed, the two superlatives coincide.'
14. The learned Counsel for the appellant then referred to Section 2(12) of the Sales of Goods Act, 1930, where 'quality of goods' is defined as to include, their state or condition.
15. We are unable to give this interpretation to the pleadings. It seems to us that the plaint referred to the quality of the potatoes and not to their actual condition when they were booked. There are various qualities of potatoes & the consinment of potatoes was described as 'first class quality.' Further the railway would not know of the quality pr the condition of the potatoes when they were booked because they would he in bags, especially as they were booked at the owner's risk rate.
16. It seems to us that this appeal can be disposed of on the ground that the extent of damages has not been proved in this case. The plaintiff came with a definite case that he had only taken delivery of 02 bags and left the remaining bags at the railway station. This has been negatived by all the Courts and the finding on us. Naturally after having pleaded that he only took 92 bags no evidence could be lead as to the price, if any, which was fetched by the sale of the remaining bags. We have, therefore, no information as to the exact damage.
17. We are of the opinion that the Trial Court correctly came to the conclusion that the extent of damage in the present case cannot be ascertained and therefore the plaintiff must fail, In the result the appeal fails and is dismissed. There will be no order as to the costs in the appeal as some damage was done to the potatoes and there was some delay on the part of the railway in the transportation of the potatoes.