A notice under Section 77 of the Railways Act is not required if a suit is framed on the basis of non-delivery, unless there is an admission of loss.

K.Sahai, J.

1. Defendant No. 1, the Union of India, as owner of the North-Eastern Railway has presented this appeal. The suit out of which it arises was instituted for recovery of the price of ten bags of flour as well as ten empty bags, besides damages.

2. The Munsif who tried the suit dismissed it, and one of the findings to which he arrived was that the plaintiff had not served notice upon defendant No. 1 as required under Section 77 of the Indian Railways Act. On appeal the learned Additional Subr ordinate Judge held that it was not necessary for the plaintiff to serve notice as required under Section 77 upon defendant No. 1. On this finding, he allowed the appeal, and decreed the plaintiffs suit in part.

3. The only point which Mr. P. K. Bose has taken on behalf of the appellant is that the learned Additional Subordinate Judge committed an error of law in holding that, in the circumstances of this case, the plaintiff was not required to serve a notice upon defendant No. 1 under Section 77 of the aforesaid Act. That, therefore, is the only point which arises for consideration in this appeal.

4. Section 77 of the Railways Act provides that a person must put his claim of compensation on the ground of loss, destruction or deterioration of the goods to the railway administration within six months from the date of delivery of those goods for carriage by the railway. It is, however, well settled, so far as this Court is concerned, that, where a plaintiff bases his claim on the ground of non-delivery and not on the ground of loss, destruction or deterioration of the goods, he is not required to serve a notice upon the railway administration as provided for in Section 77. I may refer, in this connection, only to two decisions of this court: they are Jaisram Ramrekh Das V/s. G. I. P. Rly. Co., ILR 8 Pat 545: (AIR 1929 Pat 109) (A) and Dominion of India V/s. Hazari Lal, 30 Pat LT 280: (AIR 1949 Pat 410) (FB) (B). In the latter case, Manohar Lall, J., who was a member of the Full Bench, observed as follows:

"But I desire to emphasise that, so far as the Patna High Court is concerned, it is now our settled practice which has prevailed for more than twenty years that in the cases where the plaintiffs suit is based upon non-delivery of the goods, he is not required to give a notice under Section 77."

Mr. Bose has admitted that the plaintiff firm has, in this case, framed its suit and has based its claim on non-delivery; but he has contended that the plaintiffs allegations in paragraph 7 of the plaint lead to an inference that the ten bags of flour, which were consigned to it, were actually lost due to the negligence of the railway administration. On this fact, he has founded the argument that, loss of the goods being admitted by the plaintiff, the case is one in which the plaintiff had to give a notice under Section 77. In support of his argument, he has drawn my attention to the decisions in the cases of Puras Das V/s. E.I. Rly. Co., ILR 8 Pat 718: (AIR 1927 Pat 234) (FB) (C) and 30 Pat LT 280: (AIR 1949 Pat 410) (FB) (B).

5. It is necessary to mention some of the facts of this case in order to appreciate Mr. Boses arguments. On 25-2-1948, ten bags of flour were booked at Marufganj, and the consignment was to be delivered to the plaintiff firm at Dalsingsarai. When delivery was to be taken on behalf of the plaintiff, it was found that the consignment consisted of ten bags of husk instead of 10 bags of flour. The plaintiff firm, therefore, refused to take delivery. It has alleged in the plaint that it entered into correspondence with the Traffic Manager who directed it to take open delivery through the Traffic Inspector, Darbhanga, but the bags were not delivered to it because they were found even by the Traffic Manager to contain husk. It has further alleged that it has suffered loss due to non delivery of the commodities consigned to it. In paragraph 7 of the plaint, it has stated as follows :

"That, as a matter of fact, the r