( 1. ) THIS revision under section 25 of the Small Cause Courts act is from a decree for Rs. 61 passed by the 1st Civil Judge, Class II, Seoni, exercising powers of a Small Cause Court.

( 2. ) ON October 27, 1967, one basket containing 15 kgs. of betel leaves was consigned from Golanthara Railway Station (South Eastern Railway) to seoni, same railway ). It actually reached Seoni on October 31, 1967. The plaintiffs case is that there was undue delay owing to which the betel leaves became rotton. He claimed Rs 61 as damages.

( 3. ) THE learned trial Judge held that the betel leaves, at the time of their booking, were in good condition. The defence to the contrary was not accepted by the Court. The evidence of Ghhedilal plaintiff (P. W. 1) was believed.

( 4. ) IN this revision it is contended for the defendant that the plaintiff did not prove any misconduct or negligence on the part of the railway administration without which a decree in favour of the plaintiff could not be passed. Reliance is placed on section 74 (3) of the Railways Act It is not in dispute that the goods were booked at the owners risk rate. Section 74 (3) enacts :-

"when any animals or goods are deemed to have been tendered to be carried, or are carried, at the owners risk rate, then, notwithstanding any thing contained in section 73, the railway administration shall not be responsible for any loss, destruction, damage, deterioration or nondelivery, in transit, of such animals or goods, from whatever cause arising, except upon proof that such loss, destruction, damage, deterioration or non-delivery was due to negligence or misconduct on the part of the railway administration or of any of its servants. "

It is not contended on behalf of the plaintiff that any evidence was given to prove negligence or misconduct on the part of the railway administration. In fact that case was not even pleaded.

( 5. ) SHRI Jain, learned counsel for the respondent relies on section 76 of the Railways Act, which provides as follows : -

a railway administration shall be responsible for loss, destruction, damage, deterioration of animals or goods proved by the owner to have been caused by delay or detention in their carriage unless the railway administration proves that the delay or detention arose without negligence or misconduct on the part of the railway administration or of any of its servants. "

( 6. ) ON an examination of the scheme of the Railways Act and (he provisions contained in sections 74 (3) and 76, it is clear that section 76 is a proviso to section 74 (3 ). If the owner proves that there was any loss, destruction, damage or deterioration caused by delay or detention, then the burden shifts on the railway administration to prove that the delay or detention arose without negligence or misconduct on the part of the railway administration or of any of its servants. To put it differently, section 76 requires : (1) the owner to prove that there was delay or detention which caused loss, destruction, damage or deterioration. When the owner succeeds in doing so, then (2) it is for the railway administration to prove that the delay or detention arose without negligence or misconduct on the part of the railway administration or of any of its servants. It follows from this analysis that where the owner does not prove delay or detention, as required under the first part of section 76, then the owner has to prove negligence or misconduct as is required by section 74 (3 ).

( 7. ) JUDGED by these tests, it will have to be seen whether the plaintiff has satisfied the requirements of section 76 and, if not, whether he has satisfied the requirements of section 74 (5 ). Learned counsel for the petitioner urges that the plaintiff has not satisfied any of the two requirements.

( 8. ) IT was for the plaintiff to prove that there was delay or detention. The plaintiff has not proved it. A great deal of stress is laid on behalf of the plaintiff on the fact that inspite of steps having been take