JUDGMENT : In this appeal by the plaintiff-appellant, arising out of a suit for compensation for non-delivery of a part of the consignment, the only point urged is whether on account of non-service of the notice under Sec. 77 of the Indian Railways Act the plaintiffs claim is liable to be dismissed.

2. The plaintiff was the consignee in respect of two bales of handloom saries. At the time of taking delivery on 20-7-1950 at Howrah it was found that the bales were torn. Open delivery however was obtained, and on checking the contents 74 pieces of saries worth Rs. 1460/10/- were found short. P.W. Nityagopal Shaha, the only witness examined in this case, stated that at the time of delivery he saw the iron beltings of the bales removed. The learned munsif found that there was no "loss" and that, consequently, the notice under S. 77 of the Indian Railways Act was not essential. The learned lower appellate court inferred "loss". The main reasons appear in the following observations :

"In the present case there is no evidence that at the destination station before the unloading of the bales for delivery to the consignee-plaintiff the bales were intact and that the Railway Administration had received the bales with the full contents thereof. Therefore, it cannot be said that in respect of 74 pieces of saries pilfered out of the bales there was non-delivery ......

3. There was no evidence on the side of the defendant-railway. In the written statement Loss was not mentioned at all. What was stated in this connection (in paragraph 3 of the written statement) was merely that the suit was not maintainable, as no notice under S. 77 of the Indian Railways Act had been served within six months from the date of booking. No facts whatsoever were alleged. In paragraph 4 of the plaint there was a statement to the effect that non-delivery of the goods was due to gross negligence and/or wrongful conversion on the part of the Railway authorities. Prima facie, therefore, it can be said that the case was all along contested on the footing that it was a matter of non-delivery and not of "loss". This "loss" means loss not for the consignor but the loss of the goods for the Railway. Non-delivery may be due to other causes and, as has been observed in Gopiram Behariram v. Agent, E. I. Rly., AIR 1926 Cal 612, it is possible to conceive of cases where goods have not been lost and yet not delivered. The mere fact that something was not delivered, for example, a part of a consignment, is not sufficient to show that there was loss within the meaning of S. 77 of the Indian Railways Act, Union of India v. Meghraj Agarwalla, AIR 1958 Cal 434; and proof of non-delivery is by no means conclusive evidence as to whether or not a loss has occurred. E. I. Rly. v. Jogpat Singh, ILR 51 Cal 615 : (AIR 1924 Cal 725). It is well settled that loss must not be presumed from short delivery; but if short delivery is the result of loss then notice under S. 77 must be served (Governor General in Council v. Sarbeswar Das, 83 Cal LJ 165 : (AIR 1949 Cal 420)).

4. In the instant case there was no admission of loss in the plaint; and the written statement was altogether silent on the point of loss. Mr. Bose, learned advocate for the respondent-railway, has urged that in view of the averment in the plaint it was not necessary to refer to any "loss" in the written statement. If the loss be really admitted in the plaint, the onus would no longer lie on the defendant to call evidence upon the point which is admitted in the pleadings and the matter in that case would be treated on the pleadings as one of loss, even though the plaintiff might have framed the suit as one for non-delivery. But paragraph 4 of the plaint referred to above does not speak of any loss. The only statement was that the non-delivery was due to gross negligence and/or wrongful conversion on the part of the railway authorities. This does not certainly indicate any admission of loss so far as the plaintiff is concerned. Cons

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