The railway administration is required to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control, and, if necessary, to give evidence thereof before the consignor is called upon to prove misconduct.

Rai, J.

1. This appeal by the plaintiff is directed against the judgment and decree of the District Judge, Santhal Parganas, Dumka, modifying those of the Subordinate Judge, Deoghar.

2. The plaintiff instituted Money Suit No. 13 of 1947 in the court of the Subordinate Judge, Deoghar, against the defendant-respondent for realisation of Rs. 4,522/8/- representing the price of ten bales of cotton yarn along with the approximate profit and the railway freight.

3. The case of the plaintiff was that Messrs, Lachminarain Gouri Shankar of Gaya tendered to the Bengal Nagpur Railway at station Nagpur a consignment of 40 bales of cotton yarn for carriage to Baidyanath Dham Railway Station. The railway receipt was duly endorsed in favour of the plaintiff. On presentation of the railway receipt at B_aidyanath Dham Railway Station, the East Indian Railway Company delivered to the plaintiff only 24 bales of cotton yarn on the 14th of June 1946 and another six bales of cotton yarn on the 17th of June 1946, but the remaining ten bales out of the consignment were not delivered to him. After waiting for a sufficiently long time, the plaintiff, through his pleader, complained to the Chief Commercial Manager (Claims), East Indian Railways, who in his letter dated the 10th of September 1946 informed him that the matter was under inquiry. As the railway company failed to deliver the remaining ten bales of yarn, the plaintiff filed the present suit on the 2nd of June 1947.

4. The suit was contested by the defendant who pleaded, inter alia, that the Railway Administration was not liable for the loss of a part of the consignment except on the proof of misconduct on the part of its servants.

5. The suit was ultimately decreed by the trial court. It came to the conclusion that the required notices had been properly served on the defendant. It also held that the misconduct of the Railway Administrations servants had been fully established on the evidence on record.

6. The defendant thereafter went in appeal which was allowed in part. The appellate Court held that the misconduct of the railway administration or its servants had not been established by the evidence led on behalf of the plaintiff. The plaintiff was, therefore held entitled to a decree for the proportionate price of one bale of yarn plus the proportionate profit and the proportionate railway freight paid for the same, but he was held not entitled to any damages for the loss of the remaining nine bales. The plaintiff has thereafter filed the above mentioned second appeal in this Court.

7. Learned Counsel for the appellant contended that the railway administration has failed to disclose how the consignment was dealt with by it throughout its transit. According to him, the evidence of D. W. 1, who worked as guard of the goods train by which the wagon in question was carried from Anara to Asansol, did not furnish a disclosure regarding the entire route of the transit. He submitted that the defendant should have also given evidence as to what was the condition of the wagon at each and every station the goods train halted from Nagpur to Baidyanath Dham. In my opinion, on the terms of Risk Note B it was not necessary for the defendant to give evidence in respect of that part of the journey, which was uneventful unless the plaintiff wanted the railway administration to give evidence regarding a particular part of the journey. I am supported in this view by the decisions in the cases of SECY. OF STATE V/s. SHIB DAYAL MURLI RAM. AIR 1.929 Lah 887 and DELHI SWADESHI CO-OPERATIVE STORES CO. LTD. V/s. B.B. and C.I. RLY. CO., AIR 1930 Lah 557. Learned Counsel for the appellant has not pointed out anything from which it could be gathered that the plaintiff has asked the defendant about any other portion of the journey. In my opinion, there is not much force in this contention of the learned Counsel for the appellant.

8. Before I deal with the next point raised by Mr. Lalnarain Sinha. I would better