ORDER : This is a revision under S. 115, C.P.C. by Sahu Vanaspati Traders, Amroha Gate, Moradabad, plaintiff, against the order of the Additional District Judge of Moradabad, dismissing their revision under S. 25 of the Provincial Small Cause Courts Act and thereby maintaining the decree of the judge Small Cause Court whereby the plaintiff's suit was dismissed with costs.

2. On 10-2-1959 Messrs. Patel Bhra Bhai Jutha Bhai and Co., Rajkot, had consigned 320 tins of ground nut oil, the consignment having been booked at Bantava railway station for Moradabad City. The railway receipt was endorsed in favour of the plaintiff, who became the owner of the consignment. The consignment was loaded by the agent of the consignor and was to be unloaded by the consignor or by the endorsee. At the time of the delivery it was noticed that 19 tins had been damaged and the total loss was valued at Rs. 92. The plaintiff therefore claimed a decree for Rs. 110, including Rs. 8 towards Beejak expenses and freight and Rs. 10 towards profits.

3. Both Bantava and Moradabad City railway stations are situated on metre gauge and the consignment could be carried without transhipment, via Hathras, Bareilly and Kashipur. The plaintiff's case throughout was that the loss was occasioned by misconduct and carelessness on the part of the railway staff. However, in the notices under S. 77 of the Railways Act and S. 80, C.P.C., and also in the plaint as presented, the misconduct and carelessness on the part of the railway staff was alleged to be by not pasting caution labels on the wagon doors as a result of which the wagon was shunted by hump system, the tins collided with each other and were damaged resulting in leakage of a part of the oil, the value or which was assessed at Rs. 92. The plaintiff later had the plaint amended alleging that the goods were not sent by the agreed route as mentioned in the railway receipt, but were sent by a different route, meaning thereby partly by metre gauge and partly by broad gauge. It was further pleaded that if the goods were sent by the agreed route, there would have been no occasion for shunting by hump system and there would have been no transhipment also.

4. The defendant, Union of India, representing the Western Railway and the North Eastern Railway, contested the suit and placed the responsibility for the loss on the consignor in view of the fact that the consignment had not been properly packed in accordance with the rules, and the tins were likely to leakage as was mentioned by the consignor in the forwarding note. The validity of the notices under S. 77 of the Railways Act and S. 80, C.P.C. was also challenged.

5. The Judge, Small Cause Court, recorded the finding that no valid notice under S. 80, C.P.C. was served on the defendant; that there was no negligence on part of the railway administration or its officers except that the goods were not brought by the proper route, via Kasganj and Bareilly, and instead were transhipped to the broad gauge at Hathras Road Station and thereafter to the metre gauge al Moradabad Junction that it was not proved that the loss caused to the consignment was the result of negligence. The Judge, Small Cause Court also recorded the finding that 'he defendant was protected by S. 74-A of the Railways Act and not by S. 74-C thereof.

6. The Additional District Judge in revision, however, recorded the finding that "the package was weak and was not according to rules" meaning thereby that the tins had not been properly packed in accordance with the rules and they were likely to leakage in transit; that the goods were not brought by the agreed route resulting in transhipment of the consignment, and had the other defects not existed, the plaintiff would have been entitled to the decree prayed for; that the notice under S. 80, C.P.C. was served on the Western Railway and there was no evidence to prove the service of the notice on the North Eastern Railway; and that the notice under S. 80, C.P.C. as s

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