Judgment

WANCHOO, J.: This is an appeal on a certificate granted by the Patna High Court. The respondent sued the Union of India as representing G. I. P. Railway, Bombay and E. I. R. Calcutta for recovery of damages for nondelivery of 31 bales of piece goods, out of 60 bales which had been consigned to Baidyanathdham from Wadibundar. This consignment was loaded in wagon No. 9643 on December 1, 1947. It is not in dispute that the consignment reached Mughalsarai on the morning of December 9, 1947 by 192 Dn. goods train. After reaching Mughalsarai, the wagon was kept in the marshalling yard till December 12, 1947. It was sent to Baidyanathdham by 214 Dn. goods train from Mughalsarai at 6-40 p.m. on December 12, 1947 and eventually reached Baidyanathdham on December 21, 1947. The respondent who was the consignee presented the railway receipt on the same day for delivery of the consignment. Thereupon the railway delivered 29 bales only to respondent and the remaining 31 bales were said to be missing and were never delivered. Consequently on August 31, 1948, notice was given under S. 80 of the Civil Procedure Code and this was followed by the suit out of which present appeal has arisen on November 20, 1948. The consignment had been booked under risk note form Z, which for all practical purposes is in the same terms as risk note from B. The respondent claimed damages for non-delivery on the ground that of the non-delivery was due to the misconduct of the servants of the railway, and the claim was for a sum of Rs.36,461-12-0.

2. The suit was resisted by the appellant and a number of defences were taken. In the present appeal we are only concern with two defences. It was first contended that the suit was barred by S. 77 of the Indian Railways Act, No. IX of 1890, (hereinafter referred to as the Act), in asmuch as notice required therein was not given by the respondent. Secondly it was contended that the consignment was sent under risk note form Z and under the terms of that risk note the railway was absolved from all responsibility for loss, destruction or deterioration of goods consigned thereunder from any cause whatsover except upon proof of misconduct of the railway or its servants, and that the burden of proving such misconduct subject to certain exceptions was on the respondent and that the respondent had failed to discharge that burden. Further in compliance with the terms of the risk note, the Railway made a disclosure in the written statement as to how the consignment was dealt with throughout the period it was in its possession or control. The case of the railway it this connection was that there was a theft in the running train between Mughalsarai and Buxar on December 12, 1947 and that was how part of the consignment was lost. As the loss was not due to any misconduct on the part of the railway or its servants and as the respondent had not discharged the burden which lay on him after the railway had given evidence of how the consignment had been dealt with, there was no liability, on the railway.

3. On the first point, the trial Court held on the basis of certain decisions of the Patna High Court that no notice under, S. 77 was necessary in a case of non-delivery which was held to be different from loss. On the second point relating to the responsibility of the railway on the basis of risk note form Z, the trial Court held that it had not been proved that the loss was due to misconduct of the railway or its servants. It therefore, dismissed the suit.

4. Then followed an appeal by the respondent to the High Court. The High Court apparently upheld the finding of the trial Court on the question of notice under S. 77. But on the second point the High Court was of opinion that there was a breach of the condition of disclosure provided in risk note Z under which the consignment had been booked, and, therefore, the appellant could not take advantage of the risk note at all and the liability of the railway must be assessed on the footi