1. This is a Rule calling on the opposite party to show cause why the judgment and decree of the Court below, in so far as it dismisses a portion of the plaintiffs' claim, should not be set aside. The suit was one in which the plaintiffs recovered a decree for Rs. 30 but they claimed to be entitled to a considerably larger amount representing the value of some bags of black-pepper and catechu which were consigned to them by their vendor and which were not delivered by the Railway Company. The suit was brought against the Railway Company. The terms of the contract under which the Railway Company carried the goods are to be found in a document headed 'Risk Note, Form B'. In that document, a special contract limiting the liability of the Railway Company was made. And it was agreed between the parties that in consideration of the Railway Company accepting a lower freight than that which they were entitled to charge, the person who consigned the goods would absolve them from all liability for loss or damage to the goods. But then, inasmuch as the Railway Company is not in law entitled to divest itself of all liability, there was a proviso that the Company would be liable for the loss due to wilful negligence on the part of the Railway Company's servants or due to theft by the Company's servants or agents. The result is, when the plaintiffs sued on that contract which made the Railway Company prima facie not liable, the onus lay on them to show that they came within the proviso: because the contract which they entered into expressly absolved the Railway Company from the liability which was imposed upon them by the ordinary law except under certain particular circumstances in which their liability was preserved. Therefore, to succeed on that contract, they were obliged to show that they came within the particular exceptions which were provided against the freedom of the Railway Company from all liability. Bat they failed to show this and, therefore, failed in their action.
2. I am unable to accede to the argument which has been put before us by the learned Vakil for the plaintiffs that the onus lay on the Railway Company. That would be treating the contract in a way which, in my view, would be wrong because it would be treating the contract as though it were the converse of what it is.
3. Then it is said that there is no evidence to justify the learned Judge in coming to the conclusion to which he came. Bat there was evidence, as appears from the judgment, that the waggon containing these goods was found sealed at Sitarampur, that sometime before it came to the next station, the goods disappeared and that the Guard saw some bags lying on the line. 1 think the Judge is quite justified in inferring from the evidence that some person got into the waggon and threw out the bags with the intention of stealing them. That being so, the plaintiffs, to bring their case within the exception, had to prove that this was done by the servants or agents of the Railway Company. This the plaintiffs failed to do.
4. The result, therefore, is that the Rule must be discharged because, in my opinion, the judgment of the Court below is right.
5. I agree.