Das Gupta, J.
1. This application is for a revision of an order of the Full Bench of the Small Cause Court dismissing an application against an order of a Judge of that Court, decreeing in part the claim for damages with regard to a consignment of 125 bales of hemp sent by the opposite party by the East Indian Railway. It was said that a part of the goods had been damaged by fire in transit & the delivery of the remainder was taken by the opposite party. The consignment was booked under cover of Risk Note B. The consignment was loaded in a closed wagon & neither side has offered any explanation as to how the hemp caught fire. In view of the terms of the Risk Note B the opposite party will not be entitled to any damage except on proof that 6f the loss or damage arose from a misconduct on the part of the Railway Administration or its servants. Admittedly no direct evidence about this was given. The learned Small Cause Court Judge however held that as the goods were loaded in closed wagon were not spontaneously combustible, they could not have Caught fire except in the absence of misconduct on the part of the Railway Administration. The Full Bench considered that this was a question of fact with which they could not interfere. I am clearly of opinion that the Full Bench is wrong in thinking that the question whether a presumption of misconduct can be drawn from those facts is a mere question of fact. Whether a presumption can be drawn from such circumstances is undoubtedly a question of law. I am therefore of opinion that the F. B. declined1 wrongly to exercise jurisdiction.
2. On behalf of the petitioner it is argued by the learned Advocate that on this question of law the learned Small Cause Court Judge has undoubtedly erred. According to him there is nothing in law to justify a presumption that there must have been a misconduct merely because the goods which were not spontaneously combustible caught fire. For, he argues, there are possible ways of a highly inflammable article like hemp catching fire quite apart from misconduct on the part of Railway Administration or its servants. It is suggested that even good care is taken by the Railway Administration & its servants of its wagons & as regards loading & everything in connection therewith there is some risk always of great heat of this country during summer of parts of the wagon getting overheated & thereby causing fire to this kind of inflammable materials. I think the learned Advocate is right in his contention. Section 114, Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct & public & private business, in their relation to the facts of the particular case. I find it difficult to say that in the common course of natural events the hemp could not have got fire except for misconduct on the part of the Railway Administration or its servants.
3. Reliance was placed by the opposite party on the decision of Gentle, J., in the case of 'Raigarh Jute Mills Ltd. v. Commissioner for the Port of Calcutta' : AIR1947Cal98 , where there presumption of misconduct on the part of the Railway Authorities was made when no evidence was produced by them. That case however is a case of non-delivery & so the special provisions of the proviso (a) under which the Railway Administration is bound to disclose to the consignor how a consignment was dealt with throughout applied. There being this burden on the Railway Administration, it necessarily followed that where the Railway Administration had not offered evidence an adverse inference could be made against them under Section 114, Evidence Act. In the present case the opposite party cannot get the benefit either of proviso (a) or of proviso (b). An English case which was cited by the learned Advocate for the petitioner also supports his contention ('H. C. Smith Ltd. v. G. W. Rly. Co.', 1922 A C 178). The contract in that case was almost in the same terms as the contract in the present case. It may be mentioned that that was a case of non-delivery, but in that contract even in the case of nondelivery the consignor was not entitled to any damage except upon proof that such loss or damage arose from wilful misconduct of the Railway servants. In that case Lord Buckmaster remarked on the results that would follow from holding that before a trader can recover for any of his goods in such a case, the burden of proving that the loss sustained arose from the wilful misconduct of the company's servants lay upon the trader in the first instance. He pointed out that it practically meant that apparent protection afforded to the trader is really illusory; it practically gives him no protection at all, for it is often impossible for a trader to know what it is that has caused the loss of his goods between the time when he delivered them into the hands of the Railway Company's servants & the time when they ought to have been delivered at the other end of the journey. Inspite of this however his Lordship went on to say:
'None the less that is the burden that he has undertaken & the question is whether in this case he has afforded any evidence which calls for an answer on the part of the Railway company.'
4. On principle & authority I am therefore of opinion that the learned Advocate for the petitioner is right in his contention that the learned Small Cause Court Judge had wrongly made a presumption that the mere fact that the goods which were not spontaneously combustible had caught fire in a closed compartment, misconduct on the part of the Railway servants stood proved. The question remains whether in the circumstances I should interfere with the order passed by the Courts below. My attention has been drawn to a letter written on behalf of the Railway to the present opposite party in which on behalf of the Railway somebody writing on behalf of the Commercial Officer agreeing to pay damages at 58 per cent of the value of the consignment. The learned Advocate for the petitioner does not dispute the genuineness of this letter or the fact that at one stage the railway was agreeable to make good this loss. He pointed out however that the agreement was entirely without prejudice & should not be taken into consideration at all in disposing of this case. I am not impressed by this argument. It is open to the Court to take into consideration the conduct of the petitioner, before exercising its discretion in his favour. On consideration of the petitioner's conduct in this case, in going back upon his agreement to pay 58 per cent, I do not think that this is a case where the petitioner can fairly claim to have the benefit of the discretionary power which this Court has, for interfering with the orders made by subordinate Court.
5. The result is that I reject the application & discharge the Rule. In the circumstances of this case the parties would bear their own costs.