JUDGMENT

Tek Chand, J. - The suit, which has given rise to this second appeal, was instituted by the firm of Messrs. Jot Ram-Chandar Bhan, merchants, Delhi, against the E.I. Ry. for recovery of Rs. 630, being the amount of compensation for non-delivery of 11 complete bags of sugar and shortage of two maunds in the remaining 115 bags which had been consigned to the appellant from the Kidderpur Docks to Delhi.

2. The defendant railway denied liability alleging loss by theft committed in a running train for which it was protected to the term of risk-note-B, under which the goods had been booked at a reduced rate. The plaintiffs denied having executed the risk-note and further urged that "even if there was any risk-note it was illegal." The Court framed the following issues:

(1) Were the goods in question booked at a reduced rate under risk-note?

On defendant.

(2) Were the goods short-delivered lost on account of the wilful negligence of the defendant?

On plaintiff.

(3) Were the goods short-delivered lost in transit?

On defendant.

(4) To what compensation are the plaintiffs entitled?

On defendant.

3. It found issues 1 and 2 in favour of the defendant and issue 3 in favour of the plaintiff and dismissed the suit, leaving the parties to bear their own costs. On appeal the learned District Judge held the execution of the risk-note by the plaintiff proved, but passed a decree in favour of the plaintiff for Rs.. 528-10-0 on the ground that the risk-note was inoperative as it had not been executed on the same day on which the forwarding note and the railway receipt were executed and also because it had not been proved that the consignment was actually carried by the railway at reduced rates.

4. The defendant railway has filed a second appeal and on its behalf the learned Government Advocate has contended that the risk-note is not inoperative in any way. The railway receipt (Ex. D-X) bears date 6th October 1922 while the forwarding note (Ex. D-3) produced by the defendant is dated 4th October 1922. The risk-note, Ex. D-2, is in the usual printed form and the relevant portion reads as follows:

Whereas the consignment of...tendered by me as per forwarding order No. of this date for dispatch by the E.I. Ry. Administration or their transport agents or carriers to Delhi Shahdara station and on which have received the railway receipt No....of same date is charged at a special reduced rate, etc.

5. It will be noticed that according to the printed form the risk-note, the forwarding note and the railway receipt must be executed on one and the same date and in this particular note, it is recited that they all bear the same date. But, as clearly stated, the forwarding note produced by the railway was not executed on the 6th but bears the date 4th October and the recital in the risk-note, the forwarding note and the railway receipt all bear the same date is incorrect. The question for decision, therefore, resolves itself to this: whether the risk-note has become inoperative by reason of the fact that no forwarding note of the date on which the risk-note was issued is forthcoming and the recital in the risk-note to the contrary is wrong. The learned Government Advocate argues that this is an immaterial error and does not in any way affect the relative rights of the parties. Mr. Shamair Chand, on the other hand, contends that the terms of the note must be strictly construed and that rigid adherence to the printed form is essential before it can be operative. Neither party has cited any authority, English or Indian, before me and so far as I am aware the case is one of first impression. I have, therefore, given the matter much careful consideration and have reduced the conclusion that the appellants' contention must prevail.

6. In Clause (1), Section 72, Railways Act, it is enacted that the responsibility of a railway administration for the loss, destruction or deterioration of goods delivered to it to be carried by railway is, subject to the other provisions of the