JUDGMENT

Simpson, A J C - This is an application under Section 25 of the Small Cause Courts Act. The plaintiff was consignee of a box containing bales of cloth, delivered to the E.I. Railway at Howrah, consigned to the plaintiff at a Biswan on the B. & N.W. Railway. When the consignment reached Biswan, the box was broken and some of the cloth was missing. The learned Munsif, sitting as a Small Cause Court, decreed the plaintiff's claim in part. He gave a decree for Rs. 34-8-9 with interest and proportionate costs.

2. The present application raises a single point of law,. namely, that the plaintiff's suit ought to have been dismissed because the Railway was entitled to notice under Section 77 of the Railways Act. This point was decided in reliance on Seth Mool Chand v. G.I.P. Railway Co. A.I.R. 1924 Nag. 288. The report I have seen is in 79 Indian Cases, page 602. That ruling has been considered and dissented from by a learned Judge of this Court in B. & N.W. Railway v. Special Manager Court of Wards, Balrampur A.I.R. 1926 Oudh 419.

3. I do not propose to go through the authorities. It is sufficient to say that notice under Section 77 is required in all cases where the loss of goods is alleged. If the plaintiff alleges non-delivery, without stating what the cause of non-delivery is, and it appears upon trial that in fact nondelivery was due to loss, then the plaintiff fails if he has not given notice under Section 77. A case of non-delivery may or may not be a case of loss. If it is a case of loss, then notice is required. In the present case it is admitted that no notice was given. The case is one of loss. The issue was: "Are the defendant or any of them liable for the loss of goods and for profit as chimed." I, therefore, find that notice was necessary, and that the case ought to have been dismissed because there was no notice. Although I do not propose to discuss or review the cases, I have looked at a considerable number of cases cited by the Counsel for the appellant. These are Cawnpore Cotton Mills Co., Ltd., v. G.I.P. Ry. A.I.R. 1923 All. 301; Nadiar v. Wood (1908) 35 Cal. 194; Assam Bengal Railway Co. Ltd. v. Radhika Mohan Nath A.I.R. 1923 Cal. 397; M. & S.M. Ry Co., v. Haridas Banmali Das (1919) 41 Mad. 871; E.I. Ry. Co. v. Jethmal (1902) 26 Bom. 669; and E.I. Ry. Co. v. Gopiram A.I.R. 1924 Patna 315. I have also considered such cases as support the plaintiff decree-holder, but I find that they have either been overruled or dissented from by other Courts.

4. I set aside the judgment of the Small Cause Court and dismiss the suit. No order as to costs.