JUDGMENT

FAZL ALI, J.:—This is a defendant s appeal by certificate granted by the High Court of Allahabad under Art 133 (1) of the Constitution of India. The plaintiff which is a registered partnership firm at Benaras dealing in Bidi tobacco filed the present suit for damages against the defendant Union of India on the allegation that it had despatched a consignment containing tobacco at Benaras for Gaya in Bihar for delivery to the firm Chaturbhai M. Patel and Co. at Gaya. This consignment was booked under Invoice No. 107 Railway Receipt No. 89551 dated July 9, 1954. The plaintiff s allegation was that due to negligence of the Railway the identical goods despatched by the plaintiff did not reach the consignee at Gaya but the goods containing inferior type of tobacco reached there which caused serious loss to the plaintiff. The suit was filed after notice under Section 80 of the C. P.C. was given. The plaintiff also claimed refund of the excise duty which was paid by the plaintiff. The suit was resisted by the defendant mainly on the ground that due to fraud and collusion between the plaintiff in Benaras and his father s firm in Gujrat, the consignment at Benaras was interchanged by manipulation and deliberation so that the inferior goods were sent to Gaya and the superior goods were sent to Gujarat which were sold by the firm at Gujarat and huge profit was earned by the aforesaid firm. 713

2. The Trial Court framed a number of issues and accepted the defence and accordingly dismissed the suit. The plaintiff then filed an appeal in the High Court of Allahabad which reversed the judgment and decree of the Trial Court and decreed the plaintiff s suit for damages but refused to pass a decree regarding the amount of the excise duty said to have been paid by the plaintiff.

3. Mr. Gobind Das appearing for the appellant submitted that there were number of suspicious circumstances which clearly went to show that some amount of fraud had been played on the defendant by the collusion of the plaintiff with his father at Gujarat whose firm was known as Mangal Bhai Prabhu Das. In support of his contention he has relied on three or four circumstances which have been fully discussed by the High Court.

4. On a perusal of the judgment of the High Court we find that the case is concluded by findings of fact and normally the appellant could not have been granted the certificate for leave to appeal but for the fact that the judgment of the High Court was one of reversal and the valuation of the suit was over Rs. 20,000/- Nevertheless the High Court has discussed the suspicious circumstances relied upon by the defendant/appellant and was held that there was no conclusive or reliable evidence to prove the fraud or collusion as alleged by the defendant. One of the circumstances was that on June 9, 1954 a consignment of 191 bags of tobacco was booked by Mangal Bhai Prabhu Das the father of the plaintiff from Railway Station Vasad in Gujarat to Indian Zarada Factory, Benaras which was owned by the plaintiff. This consignment was taken delivery of by one Mohanlal an agent of the Indian Zarada Factory at Benaras and was rewarehoused in the bonded warehouse of the Factory at Benaras. On the same day the consignment of the plaintiff was also warehoused at the same place. Thereafter a forwarding note was presented at Benaras on June 24, 1954 on behalf of the Indian Zarada Factory for despatch of 174 bags of tobacco to his father Mangal Bhai Prabhu Das Patel in Gujarat on the ground that the goods were on an inferior quality. It is said that the goods of inferior quality were deliberately despatched to Gaya, whereas the other consignment was sent to Gujarat by changing the marks on the bags. The High Court, however, has pointed out that there was absolutely no evidence to show that such a manipulation or changing the marks was done either by the plaintiff or his agent at Benaras.

5. Similarly reliance was placed on that fact the although the consignment reache