S.B. Wad, J.
(1) This revision is directed against decree for Rs. 798-80 passed by the First Additional Judge, Court of Small Causes, Delhi in Suit No. 712/74. The plaintiff had contended in the suit that the Railway administration was not entitled in law to recover the decretal amount from the plaintiff towards wharfage charges.
(2) The dispute between 'the parties raises an important question of law regarding the liability to pay wharfage u/s 46-C(h) of the Indian Railways Act, 1890, which reads 'Wharfage means, the charges levied on goods for not removing them from the railway premises after the expiry of the free time allowed for such removal.'
(3) The Act further provides, thatif a person fails to pay on demand made by or on behalf of railway administration, any rate or other charges due from him in respect of any animal or goods, the railway administration may detain the whole or any of the animals or goods (Section 55). The contention of the Union of India was that after the arrival of the goods at Delhi, they were not removed within the free time allowed and administration was, thereforee, justified in recovering the decretal amount by enforcing lien. The plaintiff, on the other hand contended that the goods in question were subjected to the order of attachment before judgment passed by the Civil Judge, Neemuch. The plaintiff further claimed that the railway administration refused to hand over the goods to the plaintiff due to the said attachment order which, in fact, prevented plaintiff from removing the goods from the goods-shed within the time allowed. The learned Small Cause Court Judge, on interpretation of S. 46-C(h), came to the conclusion that the liability to pay wharfage could arise only if the consignee was at fault. He found that the plaintiff was not at fault as the goods were under the attachment order.
(4) The admitted facts, as regards the movement of the goods and the plaintiff's attempt to collect them are as follows : The goods in question were booked from Neemuch by the Consigner for 'self' on 13.1.72. The railway receipts were endorsed in favor of the plaintiff. Thereafter the Civil Judge, Neemuch passed the order in question. The Civil Judge, Neemuch after passing of the order communicated the same to the railway authorities at Delhi. The attachment order was vacated by the Civil Judge, Neemuch on 18.1.72. The consignment reached Delhi on 26.1.72. As the order vacating the attachment order was not communicated to the railway administration at Delhi, the administration refused to hand over the consignment to the plaintiff. The plaintiff was informed by the administration that the goods wohld be released as and when he would produce the order vacating the attachment. On 8.2.1972, the plaintiff furnished a certified copy of the order of the Civil Judge, Neemuch, vacating the attachment and the goods were released. The railways claimed wharfage charges from the petitioner from 26.1. 72 to 8.2.72.
(5) Now, even assuming that the learned Small Causes Judge, was right in his interpretation of 46-C(h), it is difficult to agree with his conclusion that the plaintiff was not at fault. The attachment order was vacated on 18.1.72. i.e., 8 days prior to the reaching of the goods at Delhi. The plaintiff had, all the time and opportunity to produce the order before the Railway authorities on 26.1.72 when the goods reached Delhi. It is not the case of the plaintiff that inspire of of the production of the certified copies of the order of Civil Judge, Neemuch, vacating attachment order the Railway authorities refused to hand over the goods. In fact, even though the order of the Civil Judge was not officially communicated to the railway authorities till 8.2.1972, on the plaintiff producing the certified copy of the order, the goods were immediately released. The Small Causes Court Judge overlooked these material facts and evidence on record and assumed without evidence that the attachment continued till 26.1.72. Non-consideration of the material evidence on record has thus vitiated the judgment and decree of the small Causes Court Judge, and needs to be set aside.
(6) The power of the Revision Court u/s 25 of the small Causes Court Act are wider than the powers of this Court u/s 115 of the Civil Procedure Code . The Supreme Court : 3SCR698 has held that the object of Section 25 is to enable High Court to see that there has been no miscarriage of justice and that the decision of the small causes Court was given according to law.
(7) Learned Counsel for Union of India then submits that even assuming that the attachment order continued even on the date of the arrival of the goods at Delhi, still, the plaintiff cannot avoid his liability for payment of wharfage. Counsel submits that payment of wharfage u/s 46-C(h) is by way of storage charges. It is not in the nature of penalty Railways, as bailee, are bound to take care of the goodss on payment of freight charges, till the goods reach the distination. After the goods reach at the destenation, he submits the consignee must clear the goods immediately. The free time is allowed as a grace. If the goods are not removed within the free time storage charges are required to be paid as the storage spage in the goods shed of the railways is used by the consignee. The counsel submits that a question of the fault of the consignee is an irrelevant consideration for the purposes of liability to pay wharfage.
(8) There is good deal of substance in the submission of the learned counsel for the Union of India. Wharf is a specified enclosed space built by human agency. There had been a controversy at one time in England, as to whether wharfage can be claimed for depositing the goods at an open beach on the side of a river. The essence of the concept of a wharf, as now accepted is, that it must be an enclosed space created by human endeavor. The shortage of the space at railway goods shed, indeed, is too notorious a fact. Businessmen fail to remove the goods from railway sheds for several reasons. Non- removal of the goods within the free time allowed leads to another problem. To the extent, the goods shed remains occupied, the other consignees are denied the space, with the result that such consignees cannot even avail of the 'free time' facility. If the goods, while in the custody of the railways suffer any attachment by a courts order, the railway administration is prevented from putting the property to sale in the enforcement of its lien. If the question of default of a consignee is to be brought into consideration, the railway administration would be subjected to yet another disability in the enforcement of its statutory privilege u/s 46-C (h) read with S. 55 of the Act. There is no privity of contract with a third party at whose instance a Court issues an attachment order. Storage charges cannot be recovered from such a party. I am, thereforee, inclined to hold that liability to pay wharfage u/s 46C(h) of the Act is an absolute liability and does not depend upon fault of a consignee.
(9) In the result, the revision is allowed. The decree of the trial court is set aside and the suit is dismissed with costs.