C.N. Laik, J.
1. Advocate Ajay Basu, on behalf of the Railways, defendants appellants in this second appeal, raises a short question of law as to whether a decree for damages of the plaintiffs consignment of sugar is permissible, only on the basis of an Assessment or Damage Certificate given by the Inspector of Railways, who prefaced his declaration on the certificate by the averment 'without prejudice'.
2. The plaintiff respondent's allegation of loss of about 33 maunds of sugar due to the misconduct and negligence of the defendant appellant is denied in the written statement. At the time of delivery, the usual short certificate was given by the Railways. The Court of first instance decreed the suit in part only for ft sum of Rs. 188-18 as on the admitted shortage of 5 maunds and 14 seers of sugar, pilfered in transit. The learned Subordinate Judge, Bankura, on appeal by the plaintiff firm, decreed the suit for a further sum of Rs. 810-3 as, mainly on the ground of the said Assessment Certificate for the deteriorated sugar of about 28 maunds, which causes the real difficulty in this appeal. The said certificate was taken as the basis of damage.
3. Parties came to the Court inter alia on the following relevant facts. It was a consignment of sugar of 200 bags, weighing 550 maunds, from Hatwa to Bankura, out of which 62 bags were found, at the time of taking delivery, wet by rain water and the sugar became discoloured. The Inspector's assessment of damages of the deteriorated stuff varied from 10 per cent to 25 per cent in respect of different quantities of bugs. The assessing Inspector was not examined, whereas another Inspector deposed that the plaintiff firm sold the damaged stuff mixed up with good stuff. Sri Basu particularly pleaded from the evidence of the plaintiffs witness that the damaged stuff was still then lying at their godown and that the discoloured sugar was sold at reduced rate during rainy season. He also pointed out that there was no evidence to show the condition of the goods when they were consigned or that the statements in the assessment certificate were accepted by the plaintiff.
4. Sri Mitter, on the other hand, pleaded that the alleged report of the other Inspector was not produced and that his evidence cannot be accepted being a piece of hearsay, Sri Mitter repeats the reasonings of the learned Subordinate Judge and submits that the said certificate being a prima facie proof of admission of damage by the Railways the plaintiff is required neither to prove his actual loss and damage regarding the quantum and extent, nor of negligence and misconduct of the Railways. He further submitted that the Trial Court committed an error in accepting the additional written statement, filed just a couple of days before the hearing. The learned Munsiff's reasoning, on the other hand, is repeated by Sri Basu before me that opportunity was given to the plaintiff to produce documents in order to prove the quantity of sugar damaged or about the disposal of the damaged stuff. Account books were accordingly produced but relevant entries were not proved. Another witness of the plaintiff said that it was not possible to ascertain from the account books what was the actual loss.
5. After distinguishing a decision of this Court in the case of Balchand Badriprasad v. Union of India, (S) : AIR1957Cal666 and after laying undue stress on the acceptance of the additional written statement, the Court of appeal below inter alia held, not relying on the plaintiffs witnesses, that it was the duty of the Railways to examine the Inspector for proof of the meaning of the expression without prejudice as the assessment certificate cannot be ignored and it would be wrong, according to him, to hold that the plaintiff failed to prove the damage and actual loss.
6. Before me, three other decisions are cited. Sri Mitter relies on a decision of High Court of Madhya Pradesh in the case of Union of India v. Haji Latif Abdulla : AIR1961MP190 whereas Sri Ba.su cites two decisions of this Court in the case of Kingsley v. Secy, of State, 36 Cal LJ 271: (AIR 1923 Cal 49) and the case of Indian Trade and General Insurance Co. Ltd. v. Union of India : AIR1957Cal190 .
7. Before coming to the main discussion it would be pertinent to notice the way that this Railway case is conducted before the Court below. The additional written statement, besides being filed so late, was verified by the pleader's clerk. It would be better for the Railways not to repeat such methods in future.
8. Now let us come back to the main question. It is not possible to define the words 'without prejudice' but I am reminded of the observation of Kekewich J. in Kurtz and Co. v. Spence and Sons, (1887) 57 LJ Ch. 238 (241):
'The plaintiff or defendant--a party litigant--may say to his opponent : Now you and I are likely to be engaged in severe warfare; if that warfare proceeds, you understand I shall take every advantage of you that the game of war permits; you must expect no mercy, and I shall ask for none; but before bloodshed let us discuss the matter, and let us agree that for the purpose of this discussion we will be more or less frank; we will try to come to terms, and that nothing that each of us says shall ever be used against the other so as to interfere with our rights at war, if, unfortunately, war results'. That is what I understand to be the meaning, not the definition, of 'without prejudice'.'
9. The rule which excludes documents marked 'without prejudice' is a wholesome rule, adopted to enable the disputants to engage in discussion, for the purpose of arriving at terms of peace. Without this protective rule it would often be difficult to take steps towards amicable adjustment. The Court, in my judgment, should always take the view that every facility is to be given to persons who are in litigation or anticipate litigation, to come together fully and frankly with a view to come to some arrangement. The statement made under those circumstances, that is to say, without prejudice, should not be treated as admission against the maker or be binding between the parties. It is merely a tentative statement. The law, it is well known, favours overtures, the object of which is to put an end to litigation. Offers and propositions between the litigating parties are therefore generally excluded on the principle of public policy. Such offer implies merely a desire for peace and is therefore not a concession of wrong done, unless accepted by the other party.
10. On these principles, the statements made in the assessment certificate cannot in my opinion be looked at as furnishing good cause fora decree straightway, without proof of actual loss and quantum of damages by the plaintiff as the same cannot be treated as an admission of liability. Even conceding that such certificate shows prima facie admission of damage, as is purported to be laid down in the case of Balchand (S) : AIR1957Cal666 (supra) it is still necessary for the plaintiff to prove actual loss and damage regarding the quantum and extent as laid down in the case of Indian Trade : AIR1957Cal190 (supra). It might be that the loss sustained is incapable of proof with the certainty of mathematical demonstration as noticed in the said Bench decision of Kingsley, 36 Cal LJ 271: (AIR 1923 Cal 49) (supra) but where absolute certainty is impossible, though damages are not uncertain, the amount of damages might be still ascertained by the usual rules of evidence to a reasonable decree of certainty. The decision in the case of Haji Latif Abdulla : AIR1961MP190 (supra) of the Madhya Pradesh High Court is not of much help, because it is a case of provisional certificate, the terms of which are also not known. It does not appear again whether on the certificate the expression 'without prejudice' was there or not. It might be mentioned that there is no evidence in the instant case that the terms were accepted by the plaintiff. For these reasons the further decree passed by the Court of Appeal below is unsustainable and should be set aside.
11. Nevertheless as the learned Subordinate Judge has not decided the appeal applying the above principles, the appeal must go back to him. The said. Court is directed to re-hear the appeal according to law and in the light of the observations made above.
12. The appeal is, therefore, allowed. There will be no order for costs in this appeal. Further costs will be in the discretion of the Court of Appeal below. Let the records go down early.