( 1 ) THIS is a plaintiffs appeal in a suit for recovery of Rs. 1513-4-0 as damages for loss of a part of the consignment sent by the plaintiff by the East Indian Railway. The consignment was made on 23-9-1913 from Unao (E. I. R.) to Mohammeda-Bad Gohna (O. T. R. ). It consisted of three bales of cotton piece goods. On 2-10-1943, the consignment reached its destination, but when the plaintiff went to take delivery of the same he found two of the bales having been tampered with and some cloth pieces removed therefrom. On 7-10-1943, the plaintiff demanded open delivery by a registered letter. Apparently, this was not allowed, and the demand was repeated by three other registered notices, the 1st dated 22nd October, the 2nd 15th November and the 3rd, 4th December, 1943. Eventually, after more than three months had elapsed from the arrival of the bales, the Railway Company did give an open delivery to the plaintiff who made a note on the Delivery Book that there was a shortage. On these facts, the plaintiff claimed the amount already mentioned, which consisted of four items: (l) Rs. 352-4-0 for the goods missing. (2) Rs. 44/- as profits, (3) Rs. 700/- as loss due to fall in the price after the defendants failure to deliver the goods and (4) Rs. 417/- as presumptive profits, total Rs. 1513-4-0.

( 2 ) THE defendant companies pleaded in defence that the consignment having been booked under the Risk Note Form A and no loss having occurred due to their negligence, the plaintiff was not entitled to any damages. They further pleaded that one of the bales had been loosely packed and the other two were "slack" without water-proof, all of them being wet at the time of weighment when consigned, It was further averred that the covering was weak and it had consequently got worn out during transit and that the shortage was due to the goods getting dried, there having been possibly some leakage due to loose packing and weak covering. The trial Court found that two of the bales had been tampered with and cloth had been removed therefrom, while they were in the defendants possession. It also found that the loss was due to the misconduct of the railway Companies. On these findings it passed a decree for Rs. 687-1-0, that is Rs. 352-4-0, on the first count, and Rs. 334-13-0, on the third.

( 3 ) ON appeal by the defendants, the lower appellate Court dismissed the entire suit on the finding that the plaintiff had failed to discharge the onus of proving that the loss was due to the negligence of the Railways. This finding was based on the learned Judge having enforced the provisions of the Risk Note Form A against the plaintiff. There was a further finding by him that the plaintiff was not entitled to any damages on account of delay in delivery, as the defendants had never refused to allow the same.

( 4 ) LEARNED counsel for the plaintiff-appellant has strenuously argued that the lower appellate Court erred in applying the provisions of Risk Note, form A in the present case. That form provides :

"i the undersigned do hereby agree and undertake to hold the said railway administration over whose railway the said goods may be carried in transit harmless and free from all responsibility for the condition in which the aforesaid goods may be delivered. . . . . . to the consignee at destination and for any loss arising from misconduct on the part of the Railway administrations servants. "

( 5 ) AS just mentioned, the lower appellate Court, relying on the concluding portion of this Note, placed the burden on the plaintiff of proving that the loss in this case had been due to the misconduct of the Railways servants and, holding that the plaintiff had failed to discharge that onus, it dismissed the entire suit. A critical examination of the provisions of this Note would, in my opinion, tend to take the present case entirely out of its scope. What has to be noticed in this document is that the complaint of the plaintiff claiming damages must have r