1. This rule was obtained at the instance of the B. N. Ry. Co. Ltd. for the revision of a judgment and decree of the Small Cause Court Judge, Sealdah, granting a decree to the plaintiffs-opposite party's firm-for a certain sum of money as compensation for damages to certain consignment of biri leaves and biris for carriage by the B. N. Ry. Co., from different stations to Shalimar. Five consignments were sent: one from Champa to Shalimar, one from Sakti to Shalimar, one from Ganga Jhir to Shalimar, one from Gondia to Shalimar and one from Kelzure to Tirora. With regard to some of the consignments the plaintiffs suit has bean dismissed. With regard to the others the plaintiff has been given a decree. Several grounds have been taken on behalf of the petitioner challenging the correctness of the judgment of the Small Cause Court Judge. It 'is said that there is no proof in this ease that there was any defect in the waggons carrying these biris at the starting station. Consequently, it must be 'held that the plaintiff has failed to discharge the onus which initially lay on him of proving the misconduct. It is next said that the consignments being drenched during the transit it is possible that the water came through the flap doors and it is said that the oral evidence shows that there was no leak at the starting station.
2. In support of the contention that the plaintiff has failed to discharge the onus of proving misconduct reference has been made to two decisions of this Court where it has been laid down that it is not sufficient for the plaintiff to establish that the leaks were discovered in the waggon at the station to which the goods were despatched. There is abundant evidence which has been accepted by the Small Causa Court Judge that there were leaks in the waggons at the arriving stations. Indeed the railway company have withheld notes which were taken at the arriving station as to the condition of the waggons. A decision is relied on in support of the contention that the fact of there being a hole in the waggon at the arriving station, i. e., the station for which the goods were bound, is not sufficient to justify the conclusion that there were also holes in the waggon at the starting or despatching station. That is the decision of my learned brothers Suhrawardy and Patterson, JJ., in the case of B. N. Ry. Co. v. Moolji Sicka & Company A.I.R. 1930 Cal. 8l5 and reference has also been made to an unreportad decision of Suhrawardy and Graham, JJ., to the same effect. I do not know if the learned Judges intended by that decision to lay down that it was an inflexible rule of law that wherever leaks are found in the waggon at the arriving station it is not permissible to infer that the leaks must have existed at the starting station also. It seems to ma that the question is really one of inference from facts and the learned Judge3 may not have intended that this should be treated as an inflexible rule of law or a presumption which the law justifies.
3. It is not necessary however to decide finally on the question as to whether the view laid down in these cases go to the length of laying down the rigid rule of law or giving rise to a presumption; for it is sufficient in this case to rest my decision on the misconduct of the railway company consisting in the violation of the standing order to the effect that the goods liable to damage must not be loaded right up against the side of the flap door but should be loaded well away from the door to minimize the risk of damage from rain-water leaking in through the flap doors and door crevices. This was the standing order which the Bengal Nagpur Railway Gazette issued on 17th May 1930. There was some discussion at the Bar as to whether these rule3, or something in the nature of these rules were in force at the time when the consignments were sent by these waggons. An affidavit has been put in on behalf of the B. N. Ry. Co., Ltd., which shows that there was some rule to the effect at the time when these consignments ware despatched that goods should not be loaded against the sides of a flap door. The Small Cause Court Judge when dealing with this part of the case has rested his decision on the deposition of D. W. 2 who states very broadly that the waggons were fully packed, which I take to mean that it was packed right up to the door. It has been contended by the railway company that that evidence must betaken with reference to what the witness stated previously on his personal knowledge and might refer to consignments other than consignments Nos. 2 and 8. The Small Cause Court however in recording the evidence makes no such discrimination. Neither does it appear from his judgment that the evidence is limited to the particular waggons in the case. After all the record which was made of the evidence was summary and the Judge himself while dealing with the evidence, says this: ' D. W. 2 admitted that the waggons were fully packed.' In these circumstances there was misconduct in the sense that the railway servants violated the standing order of the company which was in force 'at the time when the waggons were despatched, The result is that this rule must be discharged with costs. The hearing fee is assessed at one gold mohur.