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Govinda Ram Das and anr. Vs. Agent, East Indian Railway Company, Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal419,52Ind.Cas.47
AppellantGovinda Ram Das and anr.
RespondentAgent, East Indian Railway Company, Ltd.
Excerpt:
pleadings case not put forward in pleadings sought to be proved by evidence - procedure--court, duty of. - 1. this is an appeal by the plaintiffs whose suit for damages against the east indian railway company has been dismissed by both the courts below. it appears that on 5th october 1914 tilak chand piramal at kutni consigned to the plaintiffs at asansole 51 tins of ghee and signed a risk note in form h in respect of them. the plaintiffs' case was that on arrival of the tins at asansole on 13th october 1914 when they went to take delivery it was found that oat of the 51 tins of ghee 25 were empty, 25 were full, and 1 was leaking. the plaintiffs wanted to take the 23 tins and give a qualified receipt, but this the railway company very properly refused to allow. the consequence was that the ghee remained for sometime before delivery was taken and eventually the full tins and the empty tins were.....
Judgment:

1. This is an appeal by the plaintiffs whose suit for damages against the East Indian Railway Company has been dismissed by both the Courts below. It appears that on 5th October 1914 Tilak Chand Piramal at Kutni consigned to the plaintiffs at Asansole 51 tins of ghee and signed a risk note in form H in respect of them. The plaintiffs' case was that On arrival of the tins at Asansole on 13th October 1914 when they went to take delivery it was found that oat of the 51 tins of ghee 25 were empty, 25 were full, and 1 was leaking. The plaintiffs wanted to take the 23 tins and give a qualified receipt, but this the Railway Company very properly refused to allow. The consequence was that the ghee remained for sometime before delivery was taken and eventually the full tins and the empty tins were sold. The plaintiffs, on 23rd July 1915, filed the present suit for damages, Rs. 1,099. The only point made by the plaintiffs in this Court is that on 14th July 1916 the second plaintiff was not allowed to give evidence of a case which was then suggested for the first time that the 25 empty tins had been substituted, it is not clear by whom or when, for the 25 full tins. It appears that on 11th June--a little more than a month before--a member of the firm of Tilak Chand Piramal bad been examined at Kutni on commission. No such suggestion was made in his evidence, and it is obvious that he was the proper person to prove the identity of the tins consigned by him if there was any question as to their identity, No such case was made in the plaint, and we think that the Munsif was quite justified in declining to allow the plaintiffs to embark on a new case at such a late stage of the proceedings. They certainly could not have been allowed to do so without getting leave to amend their plaint and allow the defendant to put in an additional written statement. Under the risk-note it is clear that no liability fell upon the Railway Company. The appeal is accordingly dismissed with costs.


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