The word "loss" in Section 77, Railways Act, includes the entire claim made by the plaintiff whether on the footing of non-delivery, negligence, wrongful detention, or conversion on the part of the railway administration.

1. The plaintiff sues to recover from the defendant a sum of Rs. 80,291-11-0 as compensation for loss occasioned to him by non-delivery of certain bales of cloth, consigned to Gujranwalla station by the plaintiffs agents in Bombay and delivered to the-B. B. C. I. Railway. The defendant is the successor-in-title of the Governor-General in-Council and the B.B. CJ. Railway has now/ vested in the defendant as its owner and administrator.

2. It is the plaintiffs case that Messrs. Murlidhar Mohanlal, the plaintiffs agents in Bombay, purchased and consigned on his behalf 85 bales-of cloth for delivery to themselves at Gujranwalla station in the Punjab. According to the plaintiff, a railway receipt bearing No. B-49 485979 dated August 4, 1947, was issued by the railway company in favour of the plaintiffs agents and the consignment was booked at railway risk except in respect of 5 put of the 85 bales. The goods-did not reach their destination as about the middle of August 1947 there were serious disturbances, and riots in the Punjab. Correspondence ensued, in the course of which the Chief Commercial. Manager of the North Western Railway, Lahore, stated that the wagon No. 34,773 in which these-bales of cloth were loaded was looted near Mour on 23 August, 1947, and that the loss was caused-by circumstances beyond the control of the railway administration.

Ultimately the plaintiff filed this suit on 20 September, 1950, after giving the requisite notice to the defendant Under Section 80, Civil P. C. In para. 7 of the plaint the plaintiff based his cause of action on loss suffered by him by reason of wrongful detention and/or non-delivery of the bales-and in the alternative on wrongful conversion, of the bales. He also pleaded that loss was caused, to him, as a result of the misconduct of the servants and officers of the railway administration. In para. 9 of the plaint it is stated that no notice-under Section 77, Railways Act was necessary as that section did not apply to the facts of the case and that the claim of the plaintiff was not affected by the absence of any such notice.

3. By the written statement the defendant has contended that the plaintiff was not entitled to any relief as he had failed to give any notice to-the railway administration as required under Section 77, Railways Act. The defendant has also pleaded the bar of limitation. It is further pleaded that 80 out of the 85 bales were consigned under risk-note "Form Z" and the remaining 5 bales were consigned under risk-note "Form A". It is denied; that there was any misconduct of any servant or officer of the railway administration as alleged by the plaintiff. The defendant has also denied; that the non-delivery of the goods or loss of the said consignment was caused by the railway administration as alleged by the plaintiff.

4. When the suit reached hearing before me yesterday Mr. Madon, learned counsel on behalf" of the defendant, applied for an adjournment of" the suit on the ground that the defendant wanted to examine a number of witnesses on commission. This was a very belated application. The-goods were consigned as early as August 1947 and; the suit was filed in 1950. The application for commission made in February 1953 could not be entertained unless a very strong case in support of the application was made out and the reason for the delay was satisfactorily explained. The affidavit made on behalf of the defendant in sup-port of this application did not make out any such case. J, therefore, rejected the application. The application for adjournment was only on the ground that witnesses had to be examined on commission and for no other reasons.

5. The plaintiff examined Hector B. Gomes, the constituted attorney of Murlidhar Mohanlal, the plaintiffs agents in Bombay. Gomes produced the railway receipt and the invoice relating to the goods. He further stated that the goods were not delivered to the plaintiff at the destination. The plaintiff also examined Devraj Khann

Click Here to Read the rest of this document