JUDGMENT

1. This is a suit brought by Lachmi Moolchand, a trader of Agra, against the Bengal and North Western Railway, in the Court of the Subordinate Judge of Aligarh, for Rs. 2,060, damages for the loos or non delivery of 113 bags of chillies consigned to him by a trading firm of the name of Bharose Potdar of Darbhanga District. The latter firm were joined as defendants together with the Rohilkhand and Kumaun Railway, but both these defendants obtained judgment in their favour in the Trial Court.

2. The cause of action alleged in the plaint was that the defendant's servant negligently pointed out the wrong bags at the destination of the consignment, and that the consignment was thus not delivered. It is not alleged to whom this demonstration was made, nor to whom the consignment was in fact delivered, but the breach of duty is alleged to have taken place on the 22nd of May. The Subordinate Judge dismissed the suit. The Distrust Judge, treating it as an action for non-delivery, held that the defendants were liable and remanded the suit for the amount of damages to be ascertained. Against this order an appeal has been brought to the High Court The learned District Judge Bays truly that the facts are not in dispute. They are more fully stated in the judgment of the Trial Court, and, though no finding of that Court has been overruled by the lower Appellate Court, the judgment under appeal does not in some respects set out the facts which were proved in evidence. We, therefore, looked into the evidence in order to supplement the findings contained in the lower Appellate Court's judgment. The net result of the uncontradicted evidence and of the findings of the lower Appellate Court may be thus summarised.

3. The goods were dispatched by the Bengal and North-Western Railway on the terms of a consignment note signed by the consignors on the 3rd of May, The bags were marked with identification letters and were noted on the consignment to be in some respects defective through damp and want of repair. They were sent in a sealed van over the Bengal and North-Western Railway and the Rohilkhand and Kumaun systems to Kasganj Station on the Rohilkhand and Kumaun Railway. The sealed van arrived at Kasganj Station on the night of the 11th May, in the same condition as it had been dispatched and it was pleased in the goods-shed ready for unloading on May 13th.

4. The position from this point requires to be carefully considered. The evidence is scanty, but for this the plaintiff is to blame. Indeed, he is under a very strong suspicion of having intentionally kept back evidence which it was incumbent on him to produce. We know, however, that the plaintiff resided and carried on business at Agra. To suit his own convenience he had ordered to this consignment of chillies to be delivered at Kasganj intending to convey it thence to Agra in carts. He had made arrangements with a local firm at Kasganj to take delivery for him. The Railway receipt had to be sent by the consignor to the plaintiff and by the plaintiff to his agents at Kasganj. It is possible that there may have been delay in the arrival of the Railway receipt but even if there was no more than accidental delay the plaintiff's own arrangements were responsible for that delay. As a matter of fact, there is a note in the evidence that the Railway receipt had been posted from Agra to Kasganj on the 6th or 7th of May. It ought to have arrived there in ample time to enable the plaintiff's agents to produce it and take delivery on the 13th of May, when the wagon containing the consignment was placed in the goods shed ready for unloading. The wagon was sealed and, obviously, the Railway Company's servants had no authority to break those seals or to empty the wagon in the absence of the plaintiff or some authorised agent of the plaintiff. The contract expressly was that the wagon should be unloaded by the consignee. Now, it is a serious matter for a wagon to be left standing in a Railway-goods-shed,