ORDER :- 240 bags of rape seed were booked from Delhi to Burdwan on 17th March 1947, the present petitioner being the consignee. He took delivery on 18th April 1947. All the 240 bags were delivered, but of these 7 had been cut and there was a resultant shortage in the contents, of 3 mounds 35 seers, as certified by the goods clerk who gave delivery. The petitioner having sued the Railway Company for compensation for this loss, the defendants pleaded that due to the special protection afforded by a certain clause in Risk Note A under which the consignment had been sent, the plaintiff could not succeed unless misconduct on the part of the Railway administrations servants was proved and that there was no such misconduct. It was further contended that the plaintiffs claim was barred by limitation.

2. The learned Judge of the Small Cause Court who tried the suit came to the conclusion that the defendants were entitled to protection of the clause in Risk Note A, that no misconduct had been proved and also that the suit was barred by limitation.

3. For the purpose of the present Rule, we must proceed on the assumption that the learned Judges finding of fact that no misconduct had been prove

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