( 1 ) THIS second appeal arises from a suit for recovery of damages for short delivery and losses in connection with a consignment of 1005 bags of Ammonium Sulphate weighing 2715 mds. and 8 Srs booked at Bombay (Central Railway) to Dhamtari (South Eastern Railway ). The consignment was booked on 11th June 1957.

( 2 ) WHEN the plaintiff took delivery of the goods at Dhamtari Railway station on 25th June 1957, it was found that one bag (2 Mds. 30 Srs.) was missing, 300 bags torn and badly damaged; 3 bags were totally empty.

( 3 ) THE plaintiff sued the Central Railway and the South Eastern Railway. The former did not enter appearance and the case proceeded ex parte against it. The latter resisted the suit. The trial Court found in favour of the plaintiff on the issues regarding consignment of goods, their weight, shortage and the quantum of loss incurred. However, it dismissed the suit on three grounds :-- (1) no notice was given to the Central Railway; (2) the notice given to the South Eastern Railway was not valid; and, (3) there was no evidence whether the loss occurred on the South eastern Railway.

( 4 ) THE plaintiff appealed. His appeal was dismissed by the First Additional District judge, Raipur, on the aforesaid three grounds.

( 5 ) IN this second appeal Shri Upadhyaya, learned Counsel for the plaintiff contends that the Courts below were not right in holding that the suit was not maintainable against the Central Railway. In the Courts below it was conceded that no notice was given to that Railway. A copy of the notice is shown to me from the record. But it is dated 14 March 1958, and as the goods were booked on 11th June 1957, the notice was clearly barred by time. The notice which was not given within the prescribed time is of no avail. It is now settled law that each Railway which is to be sued, has to be given notice. See Jetmull Bhojraj v. Darjeeling Himalayan railway Co. Ltd. , AIR 1962 SC 1879 (Para 22 ). I am unable to accept Shri upadhyaya's contention that since no specific objection was taken by the Central railway the objection as to want of notice must be deemed to have been impliedly admitted or waived. Provisions of Order 8, Rule 5, Civil Procedure Code, apply where the defendant resists the suit and flies a written statement. The Rule specifically refers to "pleadings of the defendant". Where a written statement is not put in, this Rule is nor attracted. The decision in Wasant Shripat Deshpande v. G. M. Khandekar, AIR 1949 Nag 25, relied on by Shri Upadhyaya is clearly distinguishable on that ground. For these reasons I agree with the Courts below that the suit was not maintainable against the Central Railway.

( 6 ) AS regards the liability of the South Eastern Railway the first ground for dismissal of the suit is that the consignment was not booked at any station on the south Eastern Railway nor is it proved that the loss actually occurred on the South eastern Railway. Since it is not disputed that the consignment was delivered to the plaintiff by the South Eastern Railway at Dhamtari Railway Station, according to the law laid down in AIR 1962 SC 1879 (supra) in para 24, the burden had shifted to the delivering Railway (South Eastern Railway) to prove that the damage did not occur on its Railway.

( 7 ) SHRI Mukerjee has not relied on any evidence in this case to show that the loss did not occur on the South Eastern Railway. In my judgment, the suit was therefore, maintainable against the South Eastern Railway.

( 8 ) THIS brings me to the question whether the notice given by the plaintiff to the south Eastern Railway was valid. The only objection to that notice is that it was addressed to the Chief Commercial Superintendent. The trial Court relied on section 140 of the Railways Act. That Section, as it stood at the time when the present suit was filed, required a notice to be served on the Manager. It is only by a subsequent amendment of the Section that notice may now be served either on t