A.N. Ray, J.
1. This is a suit for the recovery of Rs. 11,375/- being the value of 65 bales of Mesta Special Tops Jute, On or about 21 January, 1949, Messrs. Kodamull Nahata made over to the East Indian Railway at Dhuliangunge 65 bales of Mesta Special top for consigning same from Dhuliangunge to Cossipur Road as per contract contained in or evidenced by invoice No. 335 and Railway Receipt No. 10132 dated 21st January, 1949. In paragraph 3 of the plaint it is alleged that the Railway Receipt was endorsed and/or made over to the plaintiff at Calcutta within the jurisdiction aforesaid for valuable consideration. The plaintiff applied for the delivery of the goods but the goods were not delivered. The plaintiff alleges mat such non-delivery was due to the negligence or mis-conduct of the agents and servants of the East Indian Railway.
2. In the written statement it is denied that there was any negligence or misconduct on the part of the Railway Administration or that the Railway Administration failed to take proper care of the goods while they were in the possession of the railway. In paragraph 5 of the written statement it is further alleged that in due course of transit while the train was standing at Salar station the wagon containing consignment accidentally caught fire on 23rd January 1949 without any fault or negligence on the part of the Railway Administration and the whole of the consignment of jute was destroyed in spite of due diligence and all efforts of the Railway Administration to extinguish the fire. In paragraph 6 of the written statement it is alleged that at about 11-35 a.m. on 23-1-1949 while the train was standing at a railway siding at Salar Station a fire was noticedin the wagon which was the fifth one from the engine. To prevent the fire spreading to other wagons and to avoid the fire in the wagon the wagon was immediately detached and placed in the goods shed. The door of the wagon was opened and the wagon was found to be full of smoke and the bales of jute were found to be on fire. In spite of best efforts by the railway staff to extinguish the fire by means of fire extinguisher and continuous spray of water over the burning bales incessantly for four hours the fire went beyond control and the whole of the consignment was burnt and destroyed.
3. The following issues were framed at the trial:
1. Was the railway receipt No. 101332 dated 21st January 1949 endorsed or made over to the plaintiff for valuable consideration as alleged in paragraph 3 of the plaint? If so. (a) what is the effect thereof? (b) has the plaintiff as such endorsee or holder any cause of action against the defendant?
2. What goods were booked under Invoice No. 835 - Railway receipt No. 101332 dated 21st January, 1949?
3. What was the value of the goods booked under Invoice No. 335, Railway receipt No. 101332 dated the 21st January, 1949?
4(a). Did the consignment covered by the said Railway receipt No. 101332 dated 21st January, 1949, catch fire on the 23rd January 1949 as alleged in paragraph 5 of the written statement?
(b). Was the whole consignment destroyed as a result of the said fire in spite of due diligence and efforts made by the railway administration?
(c). Did the fire break out due to any negligence or misconduct on the part of the servants or agents of the railway authorities?
(d). Did the railway authorities take as much care of the consignment both before and after the fire as a man of ordinary prudence would have taken of Ms own goods?
5. Is the plaintiff's alleged claim barred by the law of limitation?
6. Is the notice under Section 80 of the Code of Civil Procedure valid and sufficient?
7. Has any part of the alleged cause of action of the plaintiff arisen within the jurisdiction of this Hon 'ble Court?
8. To what relief, if any, is the plaintiff entitled?
4. On behalf of the plaintiff. Thanmull Bapna, a partner of the plaintiff firm, was examined. He stated that he met Kodamull Nahata on the 15th January, 1949 at the plaintiffs guddy at Calcutta. The plaintiff firm had purchased the goods from Kodamull Nahata and the money was paid on 15th January 1949. All this happened on 15th January 1949. The plaintiff firm received the railway receipt on or about the 22nd or 23rd January, 1949. There was some cross-examination as to the books of the plaintiff firm as to whether the transaction between the plaintiff and Kodamull Nahata was recorded in the books. In Q. 68 the plaintiff stated that there was no such entry. The plaintiff's witness stated that a hundi was drawn in respect of the goods and that was paid. The witness referred to certain books of account, like Roj Namcha Book. In question 90 following, the witness referred to such entries in the books.
5. 1 shall deal first with Issue No. 7 as to whether any part of the plaintiffs alleged cause of action arose within the jurisdiction of this court. Paragraphs 3 and 6 of the plaint were relied on by the plaintiff as forming part of the plaintiff's cause of action. Paragraph 3 alleges that the railway receipt was endorsed and/or made over to the plaintiff at Calcutta within the jurisdiction aforesaid. It is not the plaintiff's case that the railway receipt was endorsed in favour of the plaintiff at Calcutta. The plaintiff's case is that the consignor of the goods, namely, the seller, delivered the railway receipt to the plaintiff, the buyer, at Calcutta within the jurisdiction on 22nd or 23rd January that is to say a week after the plaintiff had purchased the goods. The plaintiffs witness Thanumal stated that the goods were in tact purchased and paid for on 15th January 1949.
6. Counsel on behalf of the plaintiff contended that the railway receipt was a part of the plaintiff's title to the goods and therefore the handing over of the railway receipt by the consignor to the plaintiff was a part of the plaintiff's cause of action. It was also urged on behalf of the plaintiff that the railway receipt was a document of title and inasmuch as the plaintiff obtained the document of title in relation to the goods at Calcutta, a part of the plaintiffs cause of action arose within the jurisdiction aforesaid.
7. The phrase 'cause of action' has not been defined in any statute. In the decision of Engineering Supplies Ltd. v. Dhandhania and Co. : AIR1931Cal659 the following definition was enunciated by Rankin, C.J.:
'The only definition which will work, if it has to be applied to cases of all kinds is the entire set of the facts that gives rise to an enforceable claim, or in the words of Fry, L.J. 'everything which if not proved gives the defendant an immediate right to judgment' every fact which is material to prove to entitle the plaintiff to succeed, every fact which the defendant could have a right to traverse.'
Lort-Williams, J. observed in the decision reported in : AIR1933Cal706 , Alexander Broult v. Indrakrishna Kaul, as follows:
'Cause of action may be defined as every tact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the court. It does not prove every piece of evidence which is necessary to prove each fact but every fact which is necessary to be proved,'
8. The question in the present case is whether the handing over of the railway receipt by the consignor to the consignee is a part of the plaintiffs cause of action. The character of a railway receipt was discussed in the case of Shamji Bhanji and Co. v. North Western Rly. Co. Ltd. reported in : AIR1947Bom169 . In that case P sold certain goods to S. The goods were to be supplied to S at Peshawar. P entrusted the goods to a railway company to be carried to Peshawar at railway risk. The company issued a railway receipt in P's name as the goods were consigned by P to himself at Peshawar. P paid the freight, The railway receipt was endorsed by P in favour of a third party. It was then endorsed successively to various persons till it reached S. While S was the endorsee the goods were destroyed by fire in transit. Thereafter S endorsed the receipt in favour of P. In the suit by P against the railway for loss of goods it was contended that P had no title to maintain the suit. Bhagwati, J. held that even though a railway receipt was a document of title to the goods a mere endorsement of a railway receipt was not by itself enough to transfer the property in the goods represented by the receipt to the endorsee thereof. Without anything more, the endorsement of the railway receipt only constituted the endorsee the agent for the consignee for the purpose of taking delivery of the goods, represented by the receipts from the railway company. The successive endorsements of the receipt merely constituted the successive endorsees the agents of the consignee fortaking delivery of the goods from the railway company and the re-endorsement by the last endorsee S in favour of the consignee P only re-invested P his original right to take delivery of the goods.
9. The railway receipt is included within the definition of documents of title. Bhagwati, J. further held that the railway receipts and other documents enumerated in Section 2(4) of the Sale of Goods Act are assimilated to Bills of Lading for the purpose of the right of stoppage in transit and a pledge but not for all purposes whatsoever. In Halsbury's Laws of England 2nd edition Vol. XXIX paragraph 179 at page 143 it is stated that
'Such documents, although they may purport to be, or may commonly be treated as, transferable, are not negotiable instruments unless there be a trade usage to that effect. Accordingly, subject to the provisions of the Factors Act. 1889, the owner cannot claim delivery of the goods except from the seller who is the issuer or immediate transferor of the document.'
It thus appears that the rights, if any, on transfer of the documents of title are between the endorser and the endorsee ot the receipt. The transfer of a document of title operates only as a token of authority to take possession and not as a transfer of possession and as between the immediate parties there is nothing to modify the common law rule. If the railway receipt is endorsed by the consignor to the consignee for valuable consideration such endorsement might form part of the endorsee's cause of action. But that is not the case here.
10. The railway receipt in the present case is in the name of the plaintiff as the consignee. Therefore, as far as the railway is concerned the contract of carriage between the plaintiff and the railway was entered into at Dhuliangunge outside the jurisdiction of this Court. Mr. Justice P. B. Mukharji has held in the case of Alliance Assurance Go. v. Union of India reported in : AIR1959Cal563 that the railway receipts by themselves would not give jurisdiction. His Lordship has taken the view that railway receipts are documents of title and can be negotiated and transferred and has held on the facts of that case that inasmuch the railway receipts there were endorsed or transferred in favour of the Insurance Company the doctrine of negotiability could be invoked to attract the jurisdiction of the court,
11. In the present case the only cause of action alleged is that the consignor handed over the railway receipt to the consignee at Calcutta. On the facts I am of opinion that the purchase had been made and consideration therefor had been paid prior to the handing over of the railway receipt by the consignor to the consignee. The railway receipt was in the name of the consignee and the consignor did not reserve the right of disposal but parted with the property in the goods and the plaintiff became the owner of the goods. The plaintiff's title to the goods was declared by the consignor and the plaintiff was declared as the consignee on the Railway Receipt. The railway receipt as far as the railway is concerned is a mere authority to take delivery of the goods at the destination. The delivery of the railway receipt by the consignor to the consignee in the present case does not confer any title to the goods, nor does it create any assignment of the goods in favour of the plaintiff by endorsement of the railway receipt. The consignor as the agent of the consignee booked the goods and the railway authorities delivered the railway receipt to the consignee's agent, namely, the consignor at a place outside the jurisdiction. The delivery of the railway receipt by the consignor to the consignee at Calcutta is a voluntary gratuitous act between the consignor and the consignee andit does not affect the railway authorities at all. When goods are booked from a forwarding station to the destination station both places being outside the jurisdiction of this court and there is no question of endorsement or assignment of the railway receipt the plaintiff's cause of action in case of loss or nondelivery would arise outside the jurisdiction of the court.
12. The test in determining whether an allegation forms part of cause of action is whether the plaintiff has to prove the same in order to support his right to judgment of the court. It is necessary for the plaintiff to prove that the railway granted the railway receipts. The railway authorities issued the railway receipts outside the jurisdiction. The plaintiff's title to the goods was created by the Railway receipt being issued by the Railway authorities outside the jurisdiction. Nothing remained thereafter to clothe the plaintiff with any title to the goods. It is not necessary for the plaintiff to prove to succeed in the suit that the consignor handed over the railway receipt at Calcutta within the jurisdiction. The plaintiff has to prove the contract of carriage and the breach of such contract. The contract was entered into by the issue of the railway receipt outside the jurisdiction of this court and the breach thereof has also arisen outside the jurisdiction.
13. Under these circumstances I am of opinion that the delivery of the railway receipts by the consignor to the consignee is no part of the plaintiff's cause of action against the railways. I hold that allegations in paragraph 3 are no part of the plaintiffs cause of action against the railways. The plaintiff acquired the Railway Receipt through his agent at Dhuliangunge outside the jurisdiction. There is no question of endorsement or of assignment and the doctrine of negotiability is not attracted by the plaintiff as part of the cause of action.
14. As to the question whether notices under Section 77 of the Railways Act and Section 80 of the Civil Procedure Code are part of the cause of action it has been held by this court that delivery of the notice under Section 77 is no part of the cause of action. As to notice under Section 80 of the Code of Civil Procedure 1 have held in the case of Jaharlal Pagalia v. Union of India : AIR1959Cal273 that notice under Section 80 of the Code is no part of the plaintiff's cause of action. Counsel for the plaintiff contended that paragraph 6 of the plaint means that a notice under Section 80 was not merely served from Calcutta within the jurisdiction but was served. , also at Calcutta within the jurisdiction. I am unable to accept the plaintiff's contention that there is a pleading that notice under Section 80 of the Code was served also at Calcutta within the jurisdiction. Even if notice under Section 80 of the Code was served at Calcutta, it would still, in my opinion, not have formed part of the plaintiffs cause of action inasmuch as the cause of action is complete prior to the delivery of notice under section 80 of the Code.
15. I shall now deal with Issue No. 1. As I have already stated it is not the plaintiffs case that the Railway Receipt was endorsed at Calcutta within the jurisdiction. I have held already that allegations in paragraph 3 of the plaint are no part of the plaintiff's cause of action against the defendant. I there fore hold that the handing over of the Railway *. Receipt is of no effect in regard to the plaintiff's cause of action.
16. The other question in this suit is whether there is any negligence or misconduct on the part of the Railway. On behalf of the railways, several witnesses were examined -- Promotho Nath Mukherjee, the railway guard was examined. He statedthat when he took over charge from Azimgunj, there were 40 wagons. The train eventually reached a place called Bazar Sahoo at about 9-45 in the morning. There was no shunting at Bazar Sahoo. The train stopped there for 20 minutes. The Guard had a look over the wagons and found no irregularity. He also checked the seals of the wagons and found them to be intact. The train thereafter went to Salar. At Salar there were two lines, the main fine and a loop fine. The train in question was kept in the loop line and the platform was kept open for the passenger train. The passenger train came from Azimgunge and arrived at Salar at 11-26 and stopped for two minutes. The railway guard went to the Station Master's office to have the shunting order from the Station Master as the guard had to detach one wagon at Salar. When the Station Master was writing the shunting order a small boy came and thereafter the railway guard went to the spot of the fire. He found smoke from wagon No. 37572; the wagon was locked. The smoke was coming from the left side of the wagon. The railway guard placed his hand over the axle box of the wagon to find out whether the axle box was hot or not. He found that the axle box was not hot. Immediately the railway guard arranged to isolate the wagon from thetrain and place the wagon in the goods shed. That was done under the order of the Station Master. Unfortunately, the Station Master is dead. The railway guard stated that the doors of the wagon were opened and with the help of fire buckets and fire extinguishers an attempt was made to control and extinguish the fire. There was a ditch nearby and water was taken from the ditch. Many persons, according to the railway guard fought the fire and tried to extract the bales but such attempts were unsuccessful.
17. Dwarka Prosad, the engine driver, KamalaRanjan Sinha, Assistant Station Master at Salar, KironChandra Paul, Station Master at Dhuliangungestation and Shibendra Mohan Ray, Assistant Commercial Superintendent, Eastern Railway, Howrah Division were also examined on behalf of the defendant. Kamala Ranjan Sinha, the Assistant Station Master at Salar also spoke about the attempts toextinguish the fire. He stated that after detachingthe wagon he went with the help of other people todetach the seal of the wagon and open the door onthe right hand side to save the contents of the wagonand two fire extinguishers and 8 fire buckets wereused to extinguish the fire; it took more than 3 hoursbut it was not successful. The wagon was thereaftersent to Bandel for examination; the wagon was of the Indian Railway standard type wagon. He alsostated that many members of the public helped toextinguish the fire with buckets of water. He alsostated that it took about 3/4 hours to fight the fire.
18. Dwarka Prosad, the Engine Driver stated that the train arrived at Salar at about 10-45 a.m. and was there till 1-35 p.m. He stated that before shunting was done at Salar it was noticed that smoke was coming out from one wagon; that was the 10th one. On seeing the smoke he sent a boy to the station to carry the information; he could not leave the engine. Thereafter the Station Master, the Guard and others came and he shunted and detached the wagon from which smoke was noticed. He shunted the ten wagons from the engine up to the one containing the goods forming the subject matter of the suit. After having done that he came back with 9 wagons to his train.
19. Kiron Chandra Paul was the Station Master of Dhuliangunge station. He stated that the wagon in which the goods were sent was of the Indian Railway Standard type and the wagon was made of plain iron sheets. Shibendra Mohan Ray, AssistantCommercial Superintendent, Eastern Railway, Howrah Division made certain enquiries in connection with the fire. An enquiry was held by him along with one other person and eventually there was a report.
20. Counsel for the plaintiff placed reliance on the decisions of Lakhichand Ramchand v. G. I. P. Rly. Co., reported in ILR 37 Bom 1 and Hirji Khetsey and Co. v. B.B. and C.I. Rly. Co. reported in ILR 89 Bom. 191: (AIR 1914 Bom 154). In the case reported in ILR 37 Bom 1, Scott, C. J. held that the obligations of the railway included not only the duty of taking all reasonable precautions to obviate risks but also the duty of taking all proper measures for the protection of the goods when such risks had actually occurred. In that case the train arrived at Varan Gaun station at 3-40 p. m. and on approaching the station smoke was seen issuing from the wagon in question. At that station the wagon was detached and put on a siding, the doors were opened, the cotton was found to be on fire, 39 bales were with difficulty extracted, the engine driver tried unsuccessfully to extinguish the fire by water from the engine and alter 30 minutes' detention having no more water to spare from the engine went on with the train to Bhusaval, 8 miles distant. The 72 bales remaining in the wagon continued burning for some hours till they were completely destroyed. At 4-10 p. m. the Station Master of Varan Gaun telegraphed to the Station Master at Bhusaval to arrange to send a fire pipe to put out the fire of the wagon. This message was received at Bhusaval at 4-30 p. m. Some hours later the Varan Gaun Station Master wired to Bhusaval that fire pump had not yet been sent and the bales were burning. This message was received at Bhusaval at 8-30 p. m. No assistance of any kind was, however, sent from Bhusaval. On these facts it was held that when the fire was discovered there was no other course but to detach the wagon at Varan Gaun and it was also reasonable to shunt the wagon on to the nearest siding. It was also found reasonable to open the doors to try and turn the cotton out on to the platform and it was also reasonable to try to extinguish the fire by water from the engine. It was held that the Varan Gaun Station Master was negligent and but for his negligence an engine and appliances might have been sent to Varan Gaun with the help of which much of the loss could have been avoided.
21. In the decision reported in ILR 39 Bom 191: (AIR 1914 Bom 154) it was held that the railway company merely by getting the court to believe that the wagon on which the goods entrusted to it had been loaded had been so loaded with ordinary care, had not done all that was needed to absolve itself but that in the absence of a definite known cause the railway company had to satisfy the court that in the management of its engine and in the whole course of drawing the wagon to the place where it caught fire, the railway company observed in all respects the same degree of care and prudence which an ordinary man conveying his own valuable goods might have been expected to take under the circumstances. It was also held that the railway company would exonerate itself from the liability in two ways. First, it might, while ignorant of the cause of the fire, show that the cause could not possibly be attributable to itself, that, in other words, it is altogether external and beyond the railway company's control. Secondly, the railway company while ignorant of the very cause might point to the fact that it had taken such precautions against risks, had dealt with the goods entrusted to it with such a care, that whatever the cause might be and although attributable to its own act, yet it must be presumed to have been of such an uncommon or of such unpreventable kindthat it ought not to be held responsible for it. Such a defence it was held could only be logically established by the virtual exclusion of all causes of an ordinary kind attributable to the bailees or his servants or machinery. In the Bombay case it was held on the facts that the railway company was clearly responsible for the fire and there is an observation at page 238 (of ILR Bom): (at p. 174 of AIR) by Mr. Justice Beaman that if they were not liable for the origin of the fire the railways would not have been liable at all.
22. The oral testimony in the present case leaves no doubt in my mind that the railway authorities and their servants were not responsible for the fire. Nor was it suggested that the origin of the fire was attributable to any fault on part of the railways. Counsel for the plaintiff suggested that attempt should have been made to extinguish the fire at the spot and that the wagon should not have been detached and that the railways should have had better appliances for fighting fire and that in any event the railways should have salvaged the goods. In my opinion it was reasonable and prudent to have isolated the wagon or else the other wagons would have been exposed to the peril of the fire from the one in question. The railway servants lost no time in isolating the wagon and thereafter they fought with fire with extinguishers and buckets of water. The arrangements which were available were adequate. As to the question of salvage I am satisfied on the oral testimony that it was impossible for the railway servants to salvage the goods. I, therefore, hold that the cause of fire was beyond any control of the railway authorities and on, the materials disclosed by the railway authorities I further hold that they took all possible care and precaution to extinguish the Gre and were not negligent in any manner.
23. Counsel on behalf of the railways relied on the decision reported in Secy. of State v. Ramdhandas Dwarkadas : AIR1934Cal151 for the proposition that after the railways had given all the materials the onus was upon the plaintiff to show from such materials that there was misconduct or negligence. In the present case the defendant has placed all material evidence and there is no failure on the defendant's part. Upon such materials as have been produced by the defendant it is incumbent upon the plaintiff in order to establish liability on the defendant that there was want of care or that there was negligence on the part of the railway authorities or their servants and agents. In my view, there does not exist any ground to suggest that there was any negligence or misconduct or lack of care on the part of the railway servants or agents,
24. The other question in the suit was as to what would be the limitation with regard to such suits. The fire took place on 23-1-1949, the suit was instituted on 1-4-1950. On behalf of the railways it was contended that the suit should have been instituted within one year and two months from 23-1-1949.
25. Counsel on behalf of the plaintiff contended that the case was one with regard to nondelivery and therefore, limitation should run from the date of the repudiation of liability. The railway repudiated the liabilities on 15-12-1949.
26. Counsel on behalf of the defendant relied on a decision reported in East India Rly. v. Gopilal Sharma, AIR 1941 Cal 304, for the proposition that in a suit against a carrier for compensation for in during goods time does not run from the time of the plaintiff's knowledge but from the date when the injury was actually caused. As Mr. Justice Henderson observed in that case:
'There is ample authority for the proposition that time begins to run from the date when the injury was actually caused and that the burden of proving when the injury was caused rests upon the Carrier.'
27. In the present case the railways have given evidence of the date of loss and the place ol fire. There was no challenge as to the actual date ot fire. Judged from that point of view, the suit is barred by limitation.
28. The last point which was canvassed in this case was that even if the plaintiff succeeded, the plaintiff had not proved the rate on which the plaintiff was entitled to damages. Reliance was placed by counsel for the railways on the decision reported in ILR (1950) 1 Cal. 142: (AIR 1949 Cal 380), G. A. Jolly v. Dominion of India, for the contention that the plaintiff was entitled to damages, if any, at rates on January 24, 1949 or near about.
29. In the, present case, the plaintiff did not offer any evidence as to the rates of the goods about 23/24 January 1949. I do not see any reason why the rate prevalent on January 15, 1949 should continue until 23/24 January 1949 and why it should at all be reasonable to hold that. It is essentially a question of fact. In my view, it cannot be argued that the rate which was prevalent on the 15th should reasonably be inferred to hold good for the next fortnight or so and even if the plaintiff had succeeded I would hold that there is no evidence to award damages as claimed. In the result I hold as follows:
Issue No. 1: The railway receipt was made over to the plaintiff but it appears on oral testimony that consideration had been paid a week before the delivery of the railway receipt. I have already stated that the delivery of the railway receipt by the consignee to the consignor is not a part of the cause of action.
Issue No. 2: This issue was not really pressed.
Issue No. 3 : With regard to this issue a pointwas made by the plaintiff's counsel that on one ofthe documents namely, D.D. 5 the railway authorities estimated the costs of the consignment roughlyto be more or loss Rs. 9,000/- and therefore thatshould be taken to be the value of the goods. Inmy opinion, it would be extremely hazardous torely on such estimate prepared by the officer withthe words 'more or less' which have no definite value.I have already discussed that there was no evidenceas to the value of the goods on the 23rd January,1949 or a few days thereafter which would haveentitled the Court to come to a finding as to thevalue of the goods if the plaintiff had succeededon other issues.'
Issue No. 4: (a) Yes, (b) Yes, (c) No, (d) Yes.
Issue No. 5: Yes.
Issue No. 6: A short point was raised as to the notice under section 80 that paragraph 3 of the plaint was not pleaded in the notice under Section 80. Counsel for the defendant contended that if paragraph 3 was part of the cause of action it was incumbent upon the plaintiff to plead that in the notice under Section 80. That not having been pleaded in the notice under section 80 I am of opinion that the notice is bad.
Issue No. 7: As I have stated above no partof the plaintiff's cause of action arose within jurisdiction of the Court.
Issue No. 8: None.
30. The suit is dismissed with costs. Certified for two Counsel.