YASHODA NANDAN, J. :- This revision by the defendant has been referred to a larger Bench by a learned single Judge because he entertained doubt on the question as to whether the decision rendered in Prabhu Lal v. Union of India (1970 All LJ 28) has been rightly

distinguished by learned Single Judges in Babu Ram Kanhaiya Lal v. Union of India (1974 All LJ 912) and Kanpur Leather Corpn. v. Union of India in Second Appeal No. 4202 of 1965, decided on October 24, 1973 (All.).

2. The relevant facts giving rise to this revision are that the plaintiff-respondent consigned a wagon load of 675 tins mustard oil from Belanganj to Cuttack at railway risk. The packing undisputedly was defective and at the destination some of the tins despatched were found to be damaged and partly empty while some others were found to he entirely empty. There being a short delivery of the consignment, the plaintiff instituted a suit for recovery of Rs. 1000/- against the defendant applicant. The claim was resisted on the ground that there was defective packing of the goods consigned and consequently the railway was not responsible for the loss, if any. The trial court dismissed the suit on the ground that under S.77-C (2) of the Indian Railways Act the burden lay on the plaintiff to prove misconduct and negligence on the part of the defendant and since the plaintiff had failed to lead any evidence on this question the, suit could not succeed. On revision, the learned District Judge allowed the revision and decreed the claim holding that since the railway had led no evidence showing how the consignment had been dealt with it had failed to discharge its burden as a bailee and hence the plaintiffs claim was liable to be decreed. In the view of the learned District Judge, the railway administration should have led evidence establishing careful handling of the consignment and lack of negligence on their part. The revision, as already stated, has been referred to a larger Bench because of the apparent conflict of opinion between a Division Bench decision of this Court and Single Judge decisions.

3. The Division Bench consisting of W. Broome and G.C. Mathur, JJ., in Prabhu Lal v. Union of India (1970 All LJ 28), held referring to S.74-A of the Indian Railways Act, 1961 and Section 77-C of the amended Act, that to attract these provisions the following three conditions must be satisfied :-

"(1) that the goods, which are tendered to a railway administration for booking, are either in a defective condition or are defectively packed or packed in a manner not in accordance with the general or special order prescribing the manner of packing :

(2) that the fact of such defective condition or defective or improper packing has been recorded by the consignor or his agent in the forwarding note; and

(3) that, as a consequence of the defective condition or defective or improper packing, the goods are liable to deterioration, leakage, wastage or damage."

4. In the opinion of the Bench which decided the case it was not necessary for the railway administration for invoking the protection of the abovementioned Sections to establish that the loss or shortage was the direct result of the defective packing. If the railway administration successfully established that the three conditions set out above were satisfied, then those provisions would apply and the plaintiff could not succeed except upon proving negligence or misconduct of the railway administration or its servants. It was further observed that "of course if it is shown that the loss, wastage or leakage, etc. could not have arisen from defective packing, etc. but was due to some extraneous cause, unconnected with the defective packing etc., Section 74-A or Section 77-C will not protect the railway administration. All that the railway administration has to show is that the loss, wastage or leakage, etc. was liable to occur on account of the defective condition or packing. The protection would not be available if the plain