( 1 ) THE petitioner brought this suit for recovery of damages for the loss of 10 maunds 16 seers of jute. His case is that on 23-8-1951, the delivered 125 bales of four maunds of jute per bale to the Station Master, Gaibandha, on a railway in Eastern Pakistan, for carriage to Cossipore Road Station on the Eastern Railway in the Union of India and that when the consignment, after being unloaded from the railway wagon at Cossipore Road was lying in the goods shed under the care of the Eastern Railway, it got soaked in rain on account of the negligence of the Eastern Railway and resulted in the loss of 10 maunds 16 seers. The defendant denied negligence but also pleaded that there was no contract between the plaintiff and the defendant and further that as the consignee had not taken delivery of the consignment within a reasonable time, the Railway was not liable. There was also a plea of want of notice under Section 77, Railways Act, and Section 80, Civil P. C.

( 2 ) THE trial Court had accepted the defence ' contention that there was no proper service of notice under Section 80, Civil P. C. , and further that there was no contract between the plaintiff and the