The common law of England permits common carriers to contract themselves out of liability for loss or damage to goods carried.

( 1 ) ON October 19, 1953, the defendant Opposite Party no. 2 delivered to the defendant petitioner two package, said to contain 6000 Westing House torch-bulbs, to be carried by air from Bombay to Calcutta, under consignment Note No. Z-077672. The consignee was plaintiff-Opposite party No. 1.

( 2 ) EACH of the two packages contained 3000 pieces of torch-bulbs, in a carton container, wrapped in hessian and bound by iron straps.

( 3 ) THE consignment reached Calcutta on October 21, 1953. But as the consignee-plaintiff failed to take delivery of the consignment on arrival, the same was stored in the godown of the defendant-petitioner and a notice of arrival was sent to the consignee.

( 4 ) ON October 24, 1953, the consignee-plaintiff took delivery of the said two packages and granted a Clear receipt for the same. According to the allegation of the consignee-plaintiff he brought the packages to his shop and on opening one package found that the said did not contain torch bulbs but only old periodicals, news prints, books, cotton, wool, pieces of fire wood and brickbats. The other package was also partly opened and similar materials were found inside. The plaintiff immediately got the packages surveyed by Marine Surveyors, Messrs. Norman Stewart and Co. and intimated the fact of loss of torch bulbs to the defendant No. . 1 petitioner and the defendant No. 2 consignor along with a copy of the survey report of the marine surveyors above-named to the effect that the two packages did not contain torch-bulbs. Thereafter ;here was prolonged correspondence between the plaintiff-opposite party and defendant No. 1--Petitioner at the end of which the defendant No. 1 petitioner repudiated its liability.

( 5 ) ALLEGING that the loss of torch bulbs was due to wilful negligence and default alternatively misconduct on the part of the defendant No. 1, the plaintiff instituted the suit, out of which this Rule arises, claiming damages laid down at Rs. 1877/7 -.

( 6 ) THE claim was contested by the defendant No. 1 mainly on a two-fold ground. It was contended, in the firs; place, that the plaintiff had taken delivery of the packages on clear receipt and upon such delivery the defendant No. 1 ceased to be liable for any loss, alternatively, the defendant No. 1 was not liable, for the loss of the contents of the packages which were not declared nor examined nor checked by the defendant No. 1 and which packages had been delivered in good condition to the plaintiff. It was contended, in the next place, that the packages had been accepted for carriage on the terms printed Overleaf on the consignment note No. Z-O77672, dated 19-10-53 and under those terms the defendant No. 1 could not be made liable.

( 7 ) THE defendant No. 2 by its written statement contended that they had despatched the torch-bulbs in accordance with the order placed by the plaintiff and made Over the same to the carrier and thereafter had no responsibility therefor.

( 8 ) THE trial court decreed the claim of the plaintiff against defendant No. 1 for Rs. 1854/3/-and dismissed the case against defendant No. 2. Thereupon, the defendant No. 1 moved the court below for a new trial under Section 38 of the Presidency Small Causes Court Act for having the judgment entered being set aside and a new and a different judgment being entered in its place. The Court below dismissed the application and affirmed the judgment of the trial court Against the order aforesaid the defendant No. 1 moved this court and obtained this Rule.

( 9 ) WHEN the the Rule came up for hearing before P. N. Mookerjee, J. his Lordship referred the matter to a Division Bench, with the following observations :--"this case, on the extreme contention, raised by Mr. Hoy, that his client can claim absolute exemption from all claims for damages under all circumstances in view of the contract between the parties and in view of the authorities, cited by him, namely, Jellicoe v. The British Indian Steam Navigatio