The onus is on the railway to prove that the sender or its agent had recorded the condition of the package on the forwarding note either by the sender or its agent.

Untwalia, J.

1. This is an application in revision by the plaintiff under Sec.25 of the Provincial Small Cause Courts Act against the decision of the learned Small Cause Court Judge dismissing its suit.

2. The short facts are that one bale of cloth was despatched from Ahmedabad to Bhagalpur on the 1st of April. 1954, the bale arrived at the station or destination in a pilfered condition, open delivery was given to the plaintiff on 10-5-1954 and 39 pieces of sarecs were Found short, that is to say, the package was delivered to the plaintiff, but 39 pieces of sarees were not delivered out of it. The plaintiff, therefore, filed the suit claiming compensation of Rs. 331/- for the short delivery, and also claimed interest pendente lite and future. The defence, in short, is that the goods were defectively packed, and, therefore, the case was covered by Section 74A of the Railways Act, and the plaintiff was not entitled to claim anything, unless it proved negligence or misconduct on the part of the railway administration or its servants. Other pleas were also raised in the written statement, but it is not necessary for me to state them. I would, however, state that the onus to prove the amount of compensation was thrown on the plaintiff.

3. The learned Small Cause Court Judge has held that the short delivery was due to the negligence or misconduct on the part of the railway administration or its servants, but he has dismissed the suit on the ground that the plaintiff has failed to establish the price of the 39 pieces of sarees which were delivered short, as it failed to produce its account books.

4. In my opinion, the judgment of the learned Small Cause Court Judge on the second question is not in accordance with law. The evidence on behalf of the plaintiff was there, and it was ex parte evidence. No adverse inference ought to have been drawn against it for its failure to produce the relevant account books to show the prevailing market rate of the sarees in question at Bhagalpur, as they were not called for from the plaintiff by the defendants. It is an established principle of law that it is for the suitor to decide which would he the best evidence to prove his case, and, for failure to produce one piece op evidence, an adverse inference should not be drawn against the party who has chosen not to file it, unless the other side had called for that evidence (Vide Mt. Bilas Kunwar v Desrai Ranjit Singh, 19 Cal WN 1207: (AIR 1915 PC 96)). This case has been followed by a Division Bench of this Court in Chandra Narayan Deo v. Ramchandra Serawgi, AIR 1940 Pat 66.

5. Mr. Rose, however, tried to support this judgment by attacking the finding of the learned Small Cause Court Judge on the question of negligence or misconduct. His submissions on this question are three.

6. Firstly, his submission is that this case is covered by Section 74A of the Railways Act, and, therefore, there was no obligation to disclose, as provided in Section 74D. The latter part of the submission is, no doubt, sound, but its former part is not correct, in view of the fact that the railway has not succeeded in establishing in this case that in the forwarding note the sender or its agent had recorded the condition of the bale as being defective or improperly packed. I have examined the evidence of D. W. 1 on this question and I find that his evidence is not sufficient to establish this fact. In my opinion, under Section 74A of the Railways Act, the onus was on the railway to establish this. The position of a consignment booked at owners risk rate, as

provided in Section 74C, is now a different one. But, in regard to a case sought to be brought under Section 74A, the onus is still on the railway to prove by legal and reliable evidence the recording of the condition of the package on the forwarding note either by the sender or its agent. This case, therefore will be governed by a Division Bench decision of this Court in Ram Das Ram V/s. Dominion of India, AIR 195