JUDGMENT

FAZL ALI, J.:—This is a defendant s appeal by certificate granted by the High Court of Allahabad under Art 133 (1) of the Constitution of India. The plaintiff which is a registered partnership firm at Benaras dealing in Bidi tobacco filed the present suit for damages against the defendant Union of India on the allegation that it had despatched a consignment containing tobacco at Benaras for Gaya in Bihar for delivery to the firm Chaturbhai M. Patel and Co. at Gaya. This consignment was booked under Invoice No. 107 Railway Receipt No. 89551 dated July 9, 1954. The plaintiff s allegation was that due to negligence of the Railway the identical goods despatched by the plaintiff did not reach the consignee at Gaya but the goods containing inferior type of tobacco reached there which caused serious loss to the plaintiff. The suit was filed after notice under Section 80 of the C. P.C. was given. The plaintiff also claimed refund of the excise duty which was paid by the plaintiff. The suit was resisted by the defendant mainly on the ground that due to fraud and collusion between the plaintiff in Benaras and his father s firm in Gujrat, the consignment at Benaras was interchanged b