P (PLP)

MUHAMMAD SHAFI, J.

The facts of this case, which are not in dispute, are that Firm Qazi Fazal Rahim Haji Muhammad Hayat Gul alias H. Muhammad Hayat Gul Qazi, Merchants of Kissakhani Bazaar, Peshawar City, booked fourteen bales of hand-loom cloth from Karachi Bundar Railway Station to Peshawar Cantonment Railway Station, by the North-Western Railway, on the 18th December 1948. The Railway authorities at the Peshawar Cantonment Railway Station delivered eight bales out of the fourteen bales to the above mentioned firm on the 10th of January 1949. One more bale was given to them on the 26th of February 1949. The remaining five bales having not been delivered, the firm on the 25th of April 1950, instituted a suit against the Federation of Pakistan for the recovery of Rs. 15,706-7-0 the value of the goods contained in those bales. It was alleged by the plaintiff-firm that the goods were not delivered because they were lost on account of the negligence and carelessness of the Railway Authorities. Several objections were taken against this suit, both technical and on merits by the Federation of Pakistan. Following six issues were framed in the case :- (1) Whether a valid notice under section 80 C. P C: has been given by the plaintiff to the defendant ? (2) Is the suit within time ? (3) Has the petitioner (plaintiff) locus standi to sue ? (4) Were the bales in dispute lost in transit from the running train and, therefore, the defendant is not liable ? (5) What is the total amount of money, if any, due to the plaintiff ? (7) Relief. The learned trial Court found all these issues in favour of the plaintiff, and granted it a decree against the defendant for the amount claimed with costs. The defendant has come up on appeal to this Court. The first ground, which has been taken against the judg ment of the learned trial Court, is that the notice which was required to be served under section 80 C. P. C, was not valid, and, therefore, the suit was liable to dismissal. The relevant facts for the decision of this point are that the plaintiff had sent a notice through its lawyer A. R. Sheikh, B.A., LL.B., 70 Mozang Road, Lahore, on 27th April, 1949, saying that the goods had been lost by the negligence of the Railway Authorities, and that the claim should be settled within the statutory period, otherwise the matter would be put in Court, and the Governor-General of Pakistan representing the North Western Railway, Lahore, would be entirely responsible for all the costs incurred in this connection. A perusal of section 80 C. P. C. would show that in the case of a suit against the Central Government relating to the affairs of a Government Railway the notice has got to be delivered or left at the office of the General Manager of the Railway concerned. No objection cyan be taken with regard to this aspect of the notice, because it was in actual fact sent by post to the General Manager The objection, however, which has been taken by the defendant is that under section 79 C. P. C. it is the Federation of Pakistan against whom the claim can be lodged and not the Governor-General, and conse quently the plaintiff-firm said in the notice that the Governor-General of Pakistan represented, the North-Western Railway, and that he as such would be entirely responsible for all the costs, invalidated the notice. Originally under section 79 C. P. C., in a suit against the Central Government the authority to be named as the defendant was the Governor-General-in-Council, before the establishment of the Federation of India, and thereafter the Federation. This clause was amended by the Adaptation of Central Acts and Ordinances Order 1949. The words "Feder ation of Pakistan" were substituted for " the Governor-General-in-Council before the establishment of the Federation of India, and thereafter the Federation". This order it appears was promulgated by His Excellency the Governor-General, on the 25th of March, 1949, but it was actually published in the Gazette of Pakistan on the 29th of April 1949, In the case before us the cause of action to the plaintiff-firm arose somewhere in February 1949, when section 79 C. P. C. had not yet been amended. The notice of the claim was given by the plaintiff-firm on 27th April, 1949 when the Adaptation of Central Acts and Ordinances Order, although made, had not yet been published in the Official Gazette. It consequently follows that at the last time when the notice was giver, the plaintiff-firm had to mention the Governor-General in the notice, because the Federation of Pakistan as a legal entity in suits against the Crown had not yet come into being. At the time when the plaintiff-firm brought the suit, it brought it against the right person, i.e., the Federation of Pakistan. We have, therefore, no hesitation in holding that the notice when given was perfectly in accordance with law, and no objection on account of that can be taken by the' Federation of Pakistan. The next question which has been argued before us by the learned counsel for the appellant is that the mandatory provisions of law enunciated in section 69 of the Partnership Act had not been complied with, i.e., it was not established that the plaintiff-firm had been registered in accordance with law, and as a result thereof the suit, was liable to dismissal. The defendant in the written statement did not raise this objection, that the plaintiff-firm was not registered, and it was on account of that reason that no issue was framed with regard to the registration of the partnership under section 69 of the Partnership Act. The only objection, which was raised, was that the plaintiff-firm had no locus standi to sue, because the Railway receipt had been assigned by the plaintiff-firm to some other person. Be that as it may. Qazi Fazal Rahim plaintiff appeared in the witness-box, and stated on solemn affirmation that the plaintiff-firm was registered. He was not cross-examined on that statement, nor was any evidence produced by the defendant in rebuttal. We therefore, see no reason as to why should this statement, bare though it is, be not believed, and the plaintiff-firm held to be duly registered. The other objection taken by the learned counsel for the appellant was that the suit was not within time. This is the objection which unfortunately was not mentioned in the memorandum of appeal. The question of limitation is a mixed question of law and fact and until and unless it is raised in the memorandum of appeal, the appellant cannot possibly be permitted to agitate it at the hearing. The last argument addressed to us relates to the merits of the case. The position of law is well established and is in fact conceded by the learned Additional Government Pleader, who has appeared for the Federation of Pakistan that when certain goods have been delivered to a carrier and those goods are not returned to the consignee either because they are lost, or they are damaged or destroyed, then the loss or the non-delivery is prima facie evidence of the negligence of the carrier, and the burden of proof that the loss or non delivery was not due to any negligence on his part lies on the carrier. This rule of law is based on section 106 of the Pakistan Evidence Act which lays down that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Under the common law the carrier has got to take as much care of the goods entrusted to him as a man of ordinary prudence would under similar circumstances take of his own goods of the same bulk, quality and value, as the goods delivered. The circumstances that he took such care are within the knowledge of the carrier, and so it is he who has got to prove them affirmatively and positively. It is, thus, the Railway Authorities, who have to establish beyond any reasonable doubt and to the satis faction of the Court that they had taken due care of the plaintiff-firm's goods delivered to them for carriage from Karachi to Peshawar. It is proved from the defendant's evidence, viz., the statements of Islamud Din (D. W. 1), the Goods Booking Clerk Karachi, Murad Khan (D. W. 2), the Goods Loading Clerk Karachi, and Sikandar Khan (D. W. 4), the Sealing Clerk, that 14 bales of the plaintiff firm were loaded along with 110 other bales in Wagon No. 36642 on the 18th of December 1948, at Karachi Bunder Railway Station. The wagon was properly sealed, riveted and labelled. The wagon was attached to train No. 509-Up. Muhammad Ismail (D. W. 10) was its Guard. Muhammad Ismail deposed that he had been seeing the rivets and seals of all the wagons up to Jempir, and that they were quite intact. When the train left Jempir and reached Kotri, it was found that the off-side door of wagon No. 36642 was open, and the seal and the rivet had been broken., On inspection of the goods it was discovered that four bales out of 124 bales were missing. The necessary report was made, and the case was registered. Muhammad Ismail D. W. admitted that ordinarily watchmen were provided to go with the goods train, and their duty was to take care of the train when it stopped at the Stations, or was compelled to stop in between two stations. In our opinion, too, it is the duty of the Railway Administration to provide watchmen for every goods train to look after it, when it stops on the way, because if no watchmen are provided, then the Railway Authorities should realize that there is the likelihood of the goods, which the Railway is carrying, to be stolen. The question is whether any watchmen were provided for No. 509-Up or not. Accord ing to Ashiq Ali (D. W. 6), this train had two watchmen, who were watching the train, while it was in the siding at Jangshahi Railway Station. His statement, however, is con tradicted by Muhammad Ismail (D. W. 10) himself, from whose testimony the only reasonable inference which can be drawn is that no watchmen were provided for this train. He stated that there was no watchman provided at Jangshahi Railway Station, and so he had to watch the train himself. Again he deposed on cross-examination that there was no record with him to show that any watchman was provided for this train, which was occupied by him, and. that he could not say any watch and ward travelled with him in this van or not. The Railway Authorities, thus, by not providing watch and ward with No. 509-Up did not take as much care of E the goods as they would have taken of their own under similar circumstances. This is clearly a negligence on the part of the Railway Authorities, for which they must pay. The train then left. There is no evidence on the record to show as to what happened after that. S. Muhammad Hassan (D. W. 15), however, stated that he was the Guard of 51-Up on 31st December 1948 which was running between Kundian and Campbellpur, and that wagon No. 36642 was included in this train. When the train reached Campbellpur at about 11-55 p. m. it was found that again the off-side seal of the door was missing. The door was opened and when the inspection was made six more bales were found less. This train also does not seem to have been provided with watch and ward, and consequently the proper looking after of the train when it stopped on the way was not provided for by the Railway Administration,' which clearly amounts to their negligence. It has been strenuously urged by the learned Additional Government Pleader that theft in both the cases took place on the running train. This, in our view, was quite impossible. The learned trial judge actually saw the rivets, and he came to the conclusion that it was absolutely impossible for anybody to break the rivet while the train was in motion. The Railway Authorities have not in any way tried to show that the observation of the learned trial Court was wrong. In fact the learned Additional Government Pleader did not question the correctness of that observation at all. Apart from that, the weight of each bale appears to be quite heavy. The total weight of the 14 bales given in invoice No. 130, as well as in the Railway Receipt, was 63 maunds and 12 seers, i.e., each bale about four and a half maunds in weight. To say that a thief in a running train picked up such heavy bales and not- one but five of them, is to allege something which is not only impossible but on the face of it ridiculous and absurd. We have, thus, no doubt in our minds that the bales were lost while the train was standing, and that they were lost as a result of the negligence of the Railway Authorites. No other question has been argued before us. The result is that we see no substance in this appeal, and hereby dismiss it with costs. Pleader's fee Rs.

200. A. H. Appeal dismissed.