JUDGMENT

Bhide, J. - Appeals Nos. 1084 and 2769 of 1925 arise out of two suits based on similar facts which were disposed of together by the Senior Sub-Judge of Karnal. The appeal in one of the suits lay to this Court, while that in the other lay to the District Judge, Karnal, but the latter appeal was transferred to this Court on the motion of the appellant. The material facts for the purposes of these appeals, which may be taken to be proved beyond) any doubt, are as follows:

2. Certain consignments of goods consisting of makki (maize) and khali (oilcakes) were booked under risk-notes A from Kursela (B.N.W. Ry. to Karnal and Panipat (on the E.I. Ry.) by Devi) Parshad Ram Sahai, commission agents of Kursela, and the railway receipts were endorsed in favour of the plaintiffs Das sunddhi Mal-Bishambar Das of Karnal to whom the goods had been sold. Act cording to the instructions of the consignor, the goods were to be sent via Mukame Ghat. The goods were booked between the 31st January 1922 and the 4th February 1922 and reached Mukame Ghat on 9th February 1922, but were detained at the latter place on account of a strike amongst guards of the E.I. Ry. owing to which the conveyance of goods in the "upward" direction, that is towards Allahabad and Delhi had been stopped on the latter railway. The goods remained at Mukame Ghat till the 5th March 1922. On the latter date they were dispatched to Bara Banki for being, sent on to Karnal and Panipat by another route and reached Bara Banki on 11th. March 1922. (The judgment of the Senior Sub-Judge shows that the goods reached. Bara Banki on 22nd March 1922 but this appears to be a mistake). The goods remained at Bara Banki from the 11th to the 22nd March 1922 as the O.R. Ry. to which they were to be transshipped there refused to accept the goods for some reason and the higher authorities of that railway had to be approached. On 22nd March the goods were transshipped from the B.N.W. Ry. to the O.R. Ry. and reached Karnal and Panipat within a short time, that is between the 27th March and 1st April 1922. On arrival, however, the goods were found to be in a damaged condition. The goods at Karnal were inspected by the Assistant Medical Officer of the E.I. Ry. and his reports Ex. D. K and D.L. show that about one-fourth of the goods were in a rotten condition and unfit for consumption. Out of the Panipat consignment also some 24 bags of makki were found to be altogether rotten: vide evidence of Behari Lal, Goods Clerk, P.W. 18. The plaintiff asked the railway officials to make a note as regards the condition of the goods in the railway registers, but the railway officials declined to do so. Thereupon the plaintiff also refused to accept delivery. The goods remained at Panipat and Karnal till some time in July and August 1922 respectively, when they were auctioned after notice to the plaintiff. The goods at Karnal fetched only Rs. 1,600 while those at Panipat fetched Rs. 850. The railway company offered to pay the price realized after deducting what was chargeable as demurrage, etc. to the plaintiff, but the plaintiff refused to accept this sum and instituted separate suits in respect of the Karnal and Panipat consignments out of which the present appeals arise.

3. The learned Senior Sub-Judge has held that there was undue delay in transit, causing damage and deterioration of the goods, that the E.I. Ry. was not justified in refusing to make a note in their registers about the condition of the goods at the time of delivery, that the risk-note A, under which the Panipat goods were consigned, was invalid and the one in respect of the Karnal goods also could not absolve the railways inasmuch as the deterioration and damage in this case was due to undue delay in transit. It was found that in the ordinary course the goods should have reached Karnal and Panipat in about 15 days, that is, about the middle of February 1922. Calculating on the basis of the market rates for makki and khali prevailing at th