1. A legal question relating to the maintainability of the suit for want of notice u/s. 10 of the Carriers Act, 1865, coupled with proof of documents has been raised in this case by the learned counsel for the parties.

2. It appears that a suit was filed by plaintiff/respondents for recovery of Rs. 87,624 alleging that plaintiff No. 2 was carrying on business in the name of M.P. Wires & Conductors Pvt. Ltd. and used to transport its goods outside Gwalior. Defendant No. 1 was the transporter and No.2 its partner and Manager. The goods mentioned in para 4 of the plaint were handed over to the defendant for transportation to Sagar. The goods destroyed on account of fire due to negligence and misconduct on the part of the defendants and their authorised agents. The plaintiffs got a report of1he Survey Inspector and it was reported that goods valuing Rs. 62,107.16 were damaged, besides Rs. 2,249/- was also paid as fee to the Surveor. The goods were insured with plaintiff No.1. The goods did not reach the destination. A claim was preferred. It was also alleged that notice was given by the plaintiff on 8.5.80 to the defendants demanding damages. Thereafter plaintiff No. 1 and 2 gave another notice dated 14.2.83 through their counsel to the defendants requesting them to pay the amount within 15 days else interest at the rate of 15% will also be payable and action will be taken. As the claim was not satisfied the suit was filed. It has been disputed by the defendants that the goods were entrusted for transportation. The fact that defendant No. 2 was partner and Manager of the Transport Corporation of defendant No. 1 has, however, been admitted. The defendants claimed that the plaintiffs had requested them for sending the truck for transportation of goods to Sagar but as he had no truck available they had arranged for a truck of New Bharat Transport Company, Naya Bazar, Lashkar, and the goods of the plaintiff were sent through it. The goods were not given to the defendants at all. The said truck was not under the control of the defendants. Along with the goods in question match-boxes were also loaded in the same truck. The entire truck was burnt but it was an accident and not on account of negligence or carelessness of any person. The defendants were not liable for destructions of goods on account of accidental fire. The suit was liable to be dismissed. The defendants specifically alleged that plaintiff No. 2 did not give any notice dated 8.5.80 to them. They, however, admitted notice dated 14.2.83 was given and it was alleged that it was replied with correct facts. In para 19 a specific plea has been raised to the effect that no notice within six months from the date i.e. 17.4.80 was given and as such the suit was not maintainable. The learned trial Court decreed the suit. Hence this appeal.

3. As mentioned earlier the sole ground of attack of the learned counsel for the appellants is that no notice u/s. 10 of the Carriers Act was given on 8.5.80 as prayed and as such the suit is not maintainable. It cannot be said nor it has been disputed that a notice is necessary u/s. 10 of the Carriers Act. This section provides :

"10. Notice of loss or injury to be given within six months-- No suit shall be instituted against a common carrier for the loss of, or injury to, goods entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the know ledge of the plaintiff."

Thus, it is the duty of the plaintiff to prove that a notice as required under this section was given. Unless it is proved the suit is not maintainable. The learned counsel for the plaintiff/respondents has not been able to show from the record that notice dated 8.5.80 was given because that notice has not been brought on record. A lengthy argument has been advanced by the learned counsel for the respondents to the effect that the