P L D 1961 Dacca 218 (PLP)

ISPAHANI, J.‑This case has been referred to me as a Third Judge because the Division Bench consisting of Akbar and Chowdhury, JJ., have differed in their opinion.

2. The plaintiff appellant filed the suit in the Subordinate Judge's Court at Kushtia claiming damages for short delivery of 9 bags of Bidi tobacco leaves sent by rail from Calcutta on 21st December 1948, by V. C. Laljee & Company. The Bidi leaves were covered by three Railway receipts. The plaintiff was the consignee, who was to take delivery at Kushtia of the tobacco leaves. He laid his claim at Rs. 2,192‑14‑

0. The suit was filed against the Governor‑General of Pakistan‑in‑Council, Karachi, and the Governor‑General of India Dominion‑in‑Council, New Delhi.

3. The suit was not contested by the Governor‑General of India, but was contested by the Governor‑General of Pakistan. The allegations in the plaint were denied, and it was specifically stated that the consignments were booked from Calcutta, a station on the E. I. Railway and the plaintiff was put to strict proof that the consignment was correctly made over to the E. B. Railway system by the E. I. Railway and the loss was incurred by the defendant Railway in the absence of which the suit was liable to be dismissed. By an additional written statement, the contesting defendant contended that there was no privity of contract between the plaintiff and the defendant. Consequent to the creation of the two Independent States of India and Pakistan, operation of section 80 of the Indian Railway Act ceased in India. He contended that the suit, therefore, was not maintainable against that defendant and the Court had no jurisdiction, and the plaintiff's remedy, if any, lay with the contracting Railway owned and managed by the Republic of India.

4. The suit was dismissed by the trial Court, and on appeal, it was held, contrary to the decision of the trial Court that the loss of the said bags of tobacco leaves was due to absence of proper care or misconduct or negligence of the E. B. Railway staff. Both the Courts, however, held that for want of privity of contract between the plaintiff and the E. B. Railway, the suit was not maintainable against defendant No. 1, nor was it maintainable against the said defendant either as carrier or in tort, because the E. B. Railway being a State Railway was not a common carrier under the Carriers Act, and an action in tort does not lie against the Crown.

5. The matter was taken in Second Appeal before a Division Bench of this Court consisting of Akbar and Chowdhury, JJ. They are not unanimous in their opinion on various grounds. Akbar, J., affirmed the decision of the lower Courts mainly on the ground that the E. B. Railway cannot be treated as principal con tracting party, a case which was not made out in the plaint. Chowdhury, J., on the other hand, came to a contrary decision that there was privity of contract between the plaintiff and E. B. Railway through his agent E. I. Railway at Calcutta. He has further held teat apart from a contract, the E. B. Railway as a common carrier was also liable for damages, and an action in tort also lay against tae E. B. Railway, which is owned by Pakistan. The appeal before the Division Bench was heard for three days, and judgment delivered after about three weeks.

6. Mr. Radhikaranjan Guha has appeared on behalf of the plaintiff appellant, and he has firstly argued on the non‑maintain ability of this Reference to me as a Third Judge. His argument is that when the two learned Judges differed in their opinion, the case should have been referred to a Full Bench in terms of the Rules of the High Court, Appellate Side, Chapter VII, page

85. There is no foundation for this argument, because it is not a case where one Division Bench has differed with the decision of another Division Bench on the same point. The two learned Judges differed among themselves, and the matter had to be referred to a Third Judge. Thus, this Reference is not incompetent.

7. Coming to the merits of the appeal, the most important point for consideration is as to whether the E. B. Railway, which is the delivering Railway and which belongs to Pakistan can be held liable for short delivery when the goods were received by the E. I. Railway at Calcutta, which also is a Government Railway. The plaintiff appellant entered into a contract with the Railway at Calcutta for such a delivery, and it is admitted that there is no contract between the appellant and the E. B. Railway. The lower Appellate Court has found as a fact, differing from the view taken by the trial Court, that the loss occurred at Ishurdi after the goods had been taken delivery of by the E. B. Railway. Before the Partition of India, there was some difference of opinion as to which Railway was liable for loss in such cases. Thus, section 80 of the Indian Railways Act (IX of 1890) was enacted, and section 80 provides that notwithstanding anything in any agreement purport ing to limit the liability of a Railway administration with respect to traffic, while on the Railway of another administration a suit for compensation for loss of the life of or personal injury to, a passenger, or for loss, destruction or deterioration of animals or goods where the passenger was or the animals or goods were booked through over the Railways of two or more Railway administrations, may be brought either against the Railway admi nistration from which the passenger obtained his pass or purchased his ticket, or to which the animals or goods ware delivered by the consignor thereof, as the case may be, or against the Railway administration on whose Railway the loss, injury, destruction or deterioration occurred. Under this section an option is given either to sue the Railway administrations with whom the contract is made or the Railway administration on whose Railway the loss occurs. Before Partition, therefore, a person, such as the plaintiff, could pick and choose his forum of action. This Act after Partition is applicable within India or Pakistan, which are now both independent States. The Railways in question are Railways of two different States, and therefore, the said section cannot be invoked in the absence of any special legislation to govern cases such as the present. The contract was entered into with the E. I. Railway at Calcutta, which is out of Pakistan and in a foreign country. It has not been showed how the E. B. Railway could be bound as a contracting party. Due to some arrangements between the two Railways, carriage of goods was possible over the E. B. Railway. That cannot be construed to mean that the Indian Railway acted as agent of the Pakistan Railway. The lower Appellate Court has observed that the agreement, if any, between the two Railways of Pakistan and India was in the nature of an international under standing, which could be enforced can tie international plane by India and Pakistan, and no private party could enforce it. There is no evidence nor are the circumstances such from which the contract made at Calcutta wish the B. I. Railway can be construed to be contract with the E. B. Railway as well. These two Railways belong to two different States, and the view held by Akbar, J., that E. B. Railway was not liable for the loss incurred, must be upheld.

8. Akbar, J., in coming to that decision relied on Union of India v. Brajen Saha (57 C W N 164=5 P L R Dacca 349), wherein Chunder, J., held in such cases that one independent Sovereign power is not the agent of another independent Sovereign power as far as Municipal Courts are concerned, unless specifically such a state of agency is for a particular purpose assumed, and the Courts given jurisdiction. Consequently, the Government of India cannot be sued as the agent of the Pakistan Government. He held further that the lex loci contractus applied to a case of this nature is the accepted principle of private international law. Akbar, J., had previously followed that decision in Bengal Stores v. Dominion of Pakistan, East Bengal Circle (P L R 4 Dacca 186) and Dulichand Omraolal v. The Federation of Pakistan and other (9 D L R 85). The opinion expressed by Akbar, J., in this case, therefore, is in conformity with what he held previously following the decision of Chunder, J.

9. As against this, Chowdhury, J., has relied on a decision of a Division Bench in S. A. 20 of 1954 to which he was a party. He relied on Chhatumull Chowthmull v. Union of India, represented by General Manager, Eastern Railway (59 C W N 504), in which the facts were that on the 22nd August 1951, the petitioner delivered 125 bales of four maunds jute per bale to the Station Master Gaibandha, on a Railway in East Pakistan, for carriage to Cossipore Road Station on the Eastern Railway in the Union of India. The goods were carried by the Pakistan Railway to the border, and the goods were received by the Eastern Railway from the Pakistan Railway. It was held that in these circumstances, the proper conclusion is not that the Pakistan Railway as principal made the contract with the Eastern Railway, but that it made the contract with the Eastern Railway as an agent of the consignor for the carriage of goods to Cossipore Road Station on the Eastern Railway. The petitioner as plaintiff can, therefore, enforce the contract. No reasons are given for coming to that decision and it does not appear that the decision of Chunder, J., 57 C W N 164, was referred to. In S. A. 20 of 1954 the trial Court held that the Eastern Railway in the Union of India could not make any agreement with the Pakistan Government or with the. Pakistan Railway to be enforced against it in any Court of Pakistan. Before the Division Bench, however, the learned Advocate for the appellant did not challenge the proposition of law on which the learned trial Court based its decision as it was supported by a decision of this High Court in the case 5 P L R Dacca 349 ; but contended that though one Sovereign State could not be an agent of another Sovereign State in the absence of any arrangement between them, yet it could work as agent of private individual, and in that capacity the Eastern Railway in the Indian Dominion as an agent of the plaintiff made a contract with the E. B. Railway to carry the consignment from the border of Pakistan to Gaibandha Railway Station, the Station of destination, and, as such, the plaintiff as principal could sue the East Bengal Railway. This argument which was a hypothetical one was not based on any material in the case, and the Division Bench remarked : "Every day we find that a particular Department of the Government, namely, the Communication Department is practic ally doing the business of carrier entering into contract with individuals. Nobody can deny its validity and enforcibility against the Government. If this position is accepted, then there is no bar for an individual or any corporate body to enter into contract with a Sovereign State either directly or through his agent, another Sovereign State, and that contract can be enforced by the principal in the Court of that Sovereign State, and the suit will be governed lex loci i.e., law of the country . . . . . ." After observing the above, the case was disposed of on the facts found against the plaintiff appellant. Akbar, J., has characterised the above observation as obiter, while Chowdhury, J., has held that a finding was arrived at having regard to the contentions raised before the Division Bench. It seems to me that the portion above mentioned is in the nature of an obiter ; because Chowdhury, J., says : "If this position is accepted . . . . ." It is possible that in the present case, being faced with that passage in his previous judgment, has sought to bring the decision in this case in conformity with that observation. I am unable to agree with Chowdhury, J., that when a Railway of a Sovereign State receives goods to be sent from a station of that Railway to another station on the Railway of another Sovereign State, the receiving Railway enters into a contract with the delivering Railway on behalf of the consignor. In this connection reference may be made to Chunni Lal and others v. The Nizam's Guaranteed State Railway Company Ltd. (I L R 29 All. 228 (FB) ). In that case the facts were that two wagon loads of chillies were received by the Station Master at Bezwada on the Nizam's Guaranteed State Railway for carriage to Agra Station on the Great Indian Peninsular Railway at a rate of Rs. 270 per wagon for the whole distance. On arrival at Agra the Great Indian Peninsular Railway Company's Station Master demanded payment of higher rates, calculated per maund, and refused delivery until such rates were paid. The consignees paid under protest, and sued both Railway Companies for a refund of the excess charges. It was held that the contract for carriage of the goods for the whole distance was one entire contract with the receiving Company, who were liable for the overcharge, if any, wrongfully demanded from the consignees. In Kalu Ram Maigraj v. The Madras Railway Company (I L R 3 Mad. 240), it was held that when two Railway Companies interchange traffic, goods and passenger with through tickets, rates and invoices, payment being made at either end and profits shared by mileage, the receiving Company by granting a receipt‑note for goods to be carried over and delivered at a station of the delivering Company's line, does not thereby contract with the consignor of the goods as agent of the delivering Company. In Dekhari Tea Co. Ltd. v. Assam Bengal Railway Co. Ltd. (I L R 47 Cal. 6 (19)), Rankin, J., observed as follows : "The basis, however, of the above decisions is that it would be a strained and improbable inference to hold that a sender on an ordinary `through booking' transaction enters into a series of contract with carriers 1, 2 and 3 making each carrier except the last his agent to make a further contract, or treating him as the next carrier's agent to make a further contract with the sender. If it be said that though there is an entire contract with the first carrier for the whole journey, yet there may also be a contract with each of the other carriers for their own part of the transit, this no doubt is true. But as an inference it is still more elaborately improbable. It involves a contract and a parallel series of other contracts. This series has to be operated either by each carrier being treated as the senders' agent to contract with the next which involves a doubtful scheme for the transmission of authority ; or else by each carrier being treated as having made the previous one (or perhaps the first one) his agent to contract on his behalf, while himself being the previous carrier's agent to perform. Again this latter view is possible, and in some cases it is right. Such a position is a quasi- partnership and is illustrated by Gill v. M. S acrd L. Railway Co. (1873) L R 8 Q B 186 and G. I. P. Railway v. Radhakishun (1881) I L R 5 Bom.

371. It has been put in argument that where for their mutual advantage two Companies are in the habit of handling through traffic for a reward to be divided in proportions there is in substance a quasi‑partnership, and each is the agent of the other to contract. I do not agree. . . ." In a later Calcutta case K. C. Dhar v. Ahmad Bux (I L R 60 Cal. 879), it was held that a common carrier, exercising a public employment, commits a breach of the law by failing to carry safely. Rankin, C. J., observed that the doubt expressed in the Dekhari Tea Co. Ltd v. Assam‑Bengal Railway Co. Ltd. was overcautious, considering the dicta of Lord Macnaughten in the Irrwaddy Flotilla Company v. Bugwandas (I L R 18 Cal. 620). It was held further that the person, who has suffered loss by a common carrier's breach of his common law obligation, can maintain a suit independent of contract. Whether a single contract is entered or whether there is a series of contracts makes no difference because Pakistan and India are two independ ent Sovereign States now. So far as the liability of a common carrier is concerned, the Carriers Act, 1865, defines a "common carrier" as a person other than the Government, engaged in the' business of transporting for hire property from place to place, by land or inland navigation, for all persons indiscriminately. Reference was made by Mr. Guha to Mrs. Constance Zena Wells v. Governor‑General of India in Council (A I R 1946 Lah. 50), where it was held inter alia that the Sovereign activity of the Crown stands on an absolutely different footing from the commercial functions under taken by the Crown. The State Railway is a commercial organisa tion standing on the same footing as any other organisation of carriers. In respect of the commercial activities of the Crown, no special privilege can be claimed so far as suits for damages are concerned, and hence no specific enactment making the Crown specifically responsible for damages is necessary. That was the law before Partition, and after Partition of India both the countries have become independent States. In F. D. R. Footwear v. N. W. Railway and others (A I R 1933 All. 348) and in the case of Alamgir Footwear & Co. v. Secretary of State and another (A I R 1933 All. 460), it was held that Government is not a common carrier within the meaning of the Carriers Act of 1865.

10. The position, therefore, is that it cannot be held that the E. B. Railway can be treated as a principal contracting party, and the E. I. Railway acted as an agent for the plaintiff. It is not the plaintiff's case that the E. B. Railway was the principal con tracting party, nor was any evidence adduced in this behalf. Further, having regard to the facts in this case, the E. B. Railway represented by the Governor‑General of Pakistan, cannot be sued in tort nor can it be held liable for damages as a common carrier.

11. Mr. Guha made a grievance of the fact on 4th December 1950, the plaintiff appellant filed a petition asking for papers from the Manager of the E. B. Railway. These papers are mentioned in the judgment of Chowdhury, J., and Mr. Guha has argued that because the papers asked for were not forthcoming, it must be presumed that they had been produced, they would have gone against the contesting defendant's case. He has asked me to draw an adverse presumption against the contesting defendant under section 114 (g) of the Evidence Act. The lower Appellate Court has held on the facts that the loss was due to the negligence, absence of proper care, or misconduct of the E. B. Railway staff. The matter, so far as the merits are concerned, is, therefore, concluded by that finding of fact. As regards the law point as to whether the E. I. Railway was an agent on behalf of the plaintiff and contracted with the E. B. Railway to send the goods to Kushtia there is not a word stated in the plaint filed on behalf of the plaintiff. In paragraph 6, it is stated that the plaintiff had to incur a loss of Rs. 3,034‑6‑0 owing to shortage and undelivered goods‑on account of want of proper care and caution on the part of the Railway administration, and the plaintiff is entitled to recover the said loss from the Railway. The law point argued before the trial Court and the Division Bench could be decided with reference to the relevant law. In my opinion, no prejudice is caused to the appellant by the non‑production of the said papers and no presumption against the contesting defendant can be drawn therefrom.

12. Thus, I agree with the decision arrived at by Akbar, J. and dismiss the appeal. The contesting defendant respondent will be entitled to costs of the trial Court, as to costs of this Court as well as the costs before the Division Bench. AKBAR, J.‑This is a plaintiff's second appeal from the concurrent decision of the Courts below dismissing his suit for damages for short delivery.

14. The facts found in the case are as follows: The plaintiff appellant consigned 55 bags of Bidi tobacco to E. I. Railway at Calcutta for delivery at Kushtia Station on the E. B. Railway. The consignment had to traverse through two Railway systems, namely, E. I. Railway in India and E. B. Railway in Pakistan. On reaching Kushtia, the consignment was found short by 12 bags. The plaintiff claimed damages for the short delivery. He made Governor‑General of Pakistan and Governor‑General of India‑in -Council, defendants in the suit. Subsequently, Federation of Pakistan‑in‑Council were substituted in place of the Governor -General of Pakistan.

15. The suit was contested on various grounds by the Federa tion of Pakistan, but it is now necessary only to consider the defence that E. B. Railway of Pakistan was not liable for the loss in respect of which the claim had been made. It has been found by the Courts below that the shortage occurred at Ishurdi on the E. B. Railway. The Court of first instance came to the conclusion that the shortage was not due to the negligence of the Railway adminis tration. He, therefore, dismissed the suit. 17 (sic). On appeal by the plaintiff, the District Judge could not agree with the Subordinate Judge that the loss was not due to the negligence of the Railway administration. He found that the loss was due to the negligence of the Railway 'staff of the Pakistan Railway. He, however, found that : "The agreement, if any, between the two Railways which were owned by the States of Pakistan and India was again in the nature of an international understanding. That could be enforced on the international plan by the two States. No .private party could enforce it." In this view of the matter he upheld the decree, and dismissed the suit.

18. Mr. B. C. Das, the learned Advocate for the appellant has contended that the E. I. Railway as agent of the plaintiff' made a contract with the E. B. Railway for carriage of the consignment from the borders of Pakistan to Kushtia, and, as such, the plaintiff can sue the E. B. Railway as a principal party to the contract. In support of his contention he has relied on an unreported 'decision of this Court in Bhupendra Mohan Sarkar v. The Federa tion of Pakistan in Council (S. A. 20 of 1954).

19. In that case Chowdhury, J., came to the conclusion that the E. B. Railway had sent back the wagon containing the con signment on requisition from Eastern Railway, and, as such the plaintiff should look for his remedy to the Eastern Railway. Chowdhury, J., however, observed : "Every day we find that a particular Department of the Government, namely, the Communication Department is prac tically doing the business of carrier, entering into contract with individuals. Nobody can deny its validity and enforcibility against the Government. If this position is accepted, then there is no bar for an individual or any corporate body to enter into contract with a Sovereign State either directly or through his agent, another Sovereign State, and that contract can be enforced by the principal in the Court of that Sovereign State, and the suit will be governed by lex loci i.e., law of the country."

20. Chowdhury, J., made the above observations relying on a decision of the Calcutta High Court in the case of Chhatumull Chowthmull v. Union of India represented by General Manager, Eastern Railway.

21. The above observations in my opinion, were in the nature of an obiter. If by the said observations Chowdhury, J., meant that when a Railway of one Sovereign State, receives and under takes to carry goods from a station on its Railway to a place on the Railway of another Sovereign State, they enter into separate contracts with other Railway on behalf of the consignor, I respect fully beg to differ.

22. The question of exact relationship between the consignor, the receiving Railway and the Railway system over which the goods have to be carried in order to reach their destination had been viewed in different ways by the different Courts of India. As there was divergance of judicial opinion on this question, the Legislature intervened in the year 1890, and incorporated section 80, in‑the Railways Act laying down a specific rule of law for govern ing the liabilities of the different Railway administrations as regards the compensation for loss, etc., caused to the owner of the goods carried over those several Railway systems. This section 80 will apply only when the different Railway systems run through the same State. Hence the said section has no application here.

23. We have, therefore, to decide the question of relation ship between the consignor and the receiving Company and the delivering Railway on the general principles of law. Here the receiving Railway and delivering Railway are owned by different Sovereign States. Hence the question is, can the Federation of Pakistan be treated as agent of Union of India. No such case has been made out in the plaint. A similar question arose in the case of union of India v. Brajen Saha, and Chunder, J., observed "It is clear (law) that one independent Sovereign power is not the agent of another independent Sovereign power as far as Municipal Courts are concerned unless specifically such a state of agency is for a particular purpose assumed and the Courts given jurisdiction. This has to be pointed out, because, it is said that the Government of India may be sued here as an agent of the Pakistan Government. This is not good law as the two countries are independent Sovereign powers." I respectfully agree with the above observations. See also in this connection the case of Dulichand 0mraolal v. The Federation of Pakistan and Bengal Stores v. Dominion of Pakistan, East Bengal Circle.

24. The next question is: Did the plaintiff enter into a contract with the E. B. Railway in Pakistan for carriage of his goods from the border station of Pakistan to Kushtia Station. The observations of Chowdhury, J., in the unreported case of Bhupendra Mohan Sarkar v. The Federation of Pakistan‑in‑Council referred to in the beginning of the judgment, support the view that in a case like the present one the E. B. Railway may be treated as a principal contracting party. Chowdhury, J., in coming to this conclusion relied on the observations of Das Gupta, J., in Chhatumull‑Chowthmull v. Union of India represented by General Manager, Eastern Railway. In the Calcutta case the learned Judge has not stated any reason for coming to the said conclusion. On the other hand the decisions of other High Courts in India are different on this point. In Chunni Lal and others v. The Nizam's Guaranteed State Railway Company Ltd, a similar question arose, and Stanley, C. J., observed (at page 231): "Only one contract was entered into, namely, with the Nizam's State Railway. To this Company the goods were delivered, and from it the freight notes were received. What the arrange ments between the two Companies are as regards the interchange of traffic has not been disclosed. When a Railway Company receives and undertakes to carry goods from a station on its Railway to a place on another distinct Railway which it com municates, this is evidence of a contract with the receiving Company for the whole distance, and the other Railway Company will be regarded as their agents and not as contract ing with the bailor, Muschamp v. Lancaster and Preston Junction Railway Company (1841) 8 M & W 421‑58 R R 758 Webber v. (i. W. Railway Company (1865) 3 H & C

771. A receipt given by a Railway Company for goods to be sent to a place on another Railway and there to be delivered for one entire sum is one entire contract for the whole distance cons titutes an entire contract with the Railway which gave the receipt‑note."

25. In the case of Bristol and Exeter Railway Company v. Collin ((1859) 7 H L C 194), House of Lords held that when goods are received by one Railway administration for carriage and delivery at a station on another Railway system, the receiving Company does not thereby become in relation to the consignor the agent of the delivering Company.

26. Similar view was also taken in the case of Kalu Ram Maigraj v. The Madras Railway Company. The following observa tions of Rankin, J., in the case of Dekhari Tea Co. Ltd. v. Assam Bengal Railway Co. Ltd., supports the view taken by the Allahbad Full Bench "The basis, however, of the above decisions is that it would be a strained and improbable inference to hold that a sender on an ordinary `through booking' transaction enters into a series of contract with carriers 1, 2 and 3 making each carrier except the last his agent to make a further contract, or treating him as next carrier's agent to make a further contract with the sender. If it be said that though there is an entire contract with the first carrier for the whole journey, yet there may also be a contract with each of the other carriers for their own part of the transit, this no doubt is true, but as an inference it is still more elaborately improbable. It involves a contract and a parallel series of other contracts. This series has to be operated either by each carrier being treated as the sender's agent to contract with next which involves a doubtful scheme for the transmission of authority or else by each carrier being treated as having made the previous one (or perhaps the first one) his agent to contract on his behalf, while himself being the previous carrier's agent to perform. Again this latter view is possible and in some cases it is right. Such a position is a quasi partner ship and is illustrated by Gill v. M. S. and L. Railway Co. and G. I. P. Railway v. Radhakishan. It has been put in argument that where for their mutual advantage two Companies are in the habit of handling through traffic for a reward to be divided in proportions there is in substance a quasi‑partnership and each is the agent of the other to contract. I do not agree." In the light of the above decision, I hold that the E. B. Railway cannot be treated as a principal contracting party in this case. Here, I may also observe that it was never the plaintiff's case that the E. B. Railway was the principal contracting party. Nor any such evidence was led in this case.

27. No doubt from the fact that E. I. Railway accepted the consignment for `through booking' to a station in E. B. Railway in Pakistan, it may be said that there was some sort of arrange ment for despatch of goods from one Sovereign State to another Sovereign State for their mutual convenience, but we do not know what the 'arrangement between the two Sovereign. States was. Further,. if there was such an arrangement between the two States, the plaintiff not being a party to it, cannot take advantage of such an arrangement.

28. For the above reasons, I hold; that the learned District Judge has rightly held that the Federation of Pakistan cannot be made liable for short delivery of the consignment, to the plaintiff.

29. In the case of Bengal Stores v. Dominion of Pakistan, East Bengal Circle, I had occasion to point out that in a case of this nature, the lex loci contractus will apply, and, therefore, the remedy of the plaintiff, in such cases, would be to sue the Union of India for breach of the contract, if any. The plaintiff made the Governor‑General in Council of India a party to this suit. The learned District Judge has rightly held that the Governor General of India cannot be sued in a Court of Pakistan See The Province of East Bengal v. The State of Tripura (53 C W N 368).]

30. In the result, I would affirm the judgment and decree of the lower Appellate Court, and dismiss this appeal. Having regard to the facts and circumstances of the case, I would make no order as to costs. CHOWDHURY, J.‑I regret very much that I have not been able to agree with my learned brother to dismiss the suit against defendant No. 1 the E. B. Railway as not maintainable. To appreciate my point, elaborate statements of facts are necessary.

32. On 21st December 1948, V. C. Laljee & Company, merchant at Calcutta who sold 55 bags of Bidi tobacco to the plaintiff, booked those Bid! tobacco from Calcutta, to be delivered to the plaintiff at Kushtia as per three Railway Receipts Nos. 174693 to 174695. By the first and second R. R. 18 bags each and by the third 19 bags of tobacco, in all 55 bags were sent. The goods when reached Kushtia on 6th January 1949, it was found short by 9 bags under the first R. R., 3 bags under the second R. R. and one bag under the third R. R. In all 13 bags were short. Delivery of the remaining bags were given to the plaintiff after noting the shortage on production of the three Railway receipts which the Railway authority kept back with them. Five months thereafter another four bags were delivered to the plaintiff. For the remaining nine bags the plaintiff has brought the present suit alleging that for want of proper care and caution on the part of the Railway administration, plaintiff suffered loss and shortage, and non‑delivery of goods.

33. The suit was contested by defendant No. 1, the Federa tion of Pakistan. Defendant No. 2, President of the Republic of India did not appear and submit to the jurisdiction of this Court, and the suit was dismissed against defendant No. 2 by the lower Appellate Court.

34. The contesting defendant No. 1 alleged amongst others that the consignment was booked from Calcutta, a station on the E. I. Railway, and unless the plaintiff strictly proves that the consignment was correctly made over to the E. B. Railway by E. I. Railway and the loss occurred on E. B. Railway, the plaintiff's suit is liable to be dismissed.

35. By a subsequent additional written statement, defend ant No. 1 pleaded want of privity of contract between the parties, non‑maintainability of the suit under section 80 of the Railways Act and want of jurisdiction of the Court, and contended that the plaintiff's remedy "lies against the contracting Railway owned by defendant No. 2 the Republic of India."

36. The plaintiff, before the trial of the suit, by a petition dated 4th December 1950, asked for summons to be issued on the Chief Commercial Manager, E. B. Railway, Chittagong, for pro duction, through a competent officer of the Railway, of the three R. R. Nos. 174693, 174694 and 174695 taken back from the plaintiff at the time of giving short delivery of goods, transhipment books of Ishurdi, Kushtia and Darshana Railway Stations of the year 1948 and of January 1949, as well as the inward delivery book of Kushtia Station and all papers and khatas of the Railway officer who took charge of the goods consigned, from the E. I. Railway. Summon was issued, but it appears that the defendant did not produce those documents. Both the Courts below made grievance for non‑production of material evidence by defendant. Whatever documents they filed and exhibited in the case were also taken back with undertaking that they would produce theca whenever necessary, but did not produce them inspite of demand in this Court, and thereby deprived this Court from the advantage of looking into the documents on which the lower Courts relied on.

37. However, both the Courts below so far as I have been able to follow the judgment, found that the consignment was received by the E. B. Railway from the E. I. Railway, and the goods were lost on transit in E. B. Railway. The lower Appellate Court has held that the loss was due to the negligence, absence of proper care or misconduct or negligence of the E. B. Railway staff, yet Courts below dismissed the suit of the plaintiff holding that for want of privity of contract between the plaintiff and the E. B. Railway, the suit was not maintainable against defendant No. 1 nor it was maintainable against the defendant either as carriers or on tort, because the E. B. Railway being a State Railway is not a common carrier within the definition of common carrier under the Carriers Act, and an action on tort does not lie against the Crown. Hence this appeal by the plaintiff.

38. Mr. B. C. Das, the learned Advocate for the appellant contends that the Courts below erred in law in holding that there was no privity of contract between the parties though defendant No. 1 undertook to carry the goods of the plaintiff, and in fact carried and delivered part of the goods on receipt of freight from the plaintiff on the basis of the three Railway receipts though the goods were booked at Calcutta on E. I. Railway. He, further, contends that any rate defendant No. 1 is liable as carrier or on tort.

39. His contention is that the circumstances show that the receiving Railway as his agent contracted with the delivering Railway to carry the goods to the destination on freight being paid or promised to be paid, and that when it is found that goods were lost while they were in custody of the E. B. Railway, the defendant is liable under the Railways Act as applicable in Pakistan.

40. In support of his contention he has relied on the unreported decision of a DIVISION Bench of this Court in Bhupendra Mohan Sarkar v. The Federation of Pakistan‑in‑Council represented by E. B. Railway in S. A. No. 20 of 1954 dated the 8th February 1956, to which decision I am a party. In that case the respondent succeeded in the Court of appeal below on the plea that the Pakistan Railway could not be sued for want of privity of contract, though the trial Court decreed the suit on the finding that the goods were received by the Pakistan Railway and were lost due to negligence of the Railway administration. So both the points were agitated before us. We had to decide and have decided that though one Sovereign State cannot be an agent of another Sovereign State, there was no bar for an individual to enter into a contract with the Sovereign State doing commercial business, and that if an individual or any corporate body enter into a contract with a Sovereign State for commercial business and book goods in the Railway of a Sovereign State to be carried to the Railway of another Sovereign State, there might be a contract by the consignor through his agent, the receiving Railway, with the deliver ing Railway, and the contract was enforceable in the Court of Pakistan, and it would be governed by lex loci, that is, the law of the land, We upheld the contention of the appellant on this point though we could not accept the contention nor could we agree with the trial Court that the goods were received by and lost in the Pakistan Railway. We found that the goods were received by the Pakistan Railway, but on a subsequent requisition by the receiving Railway the goods were sent back to Naihati, and, as such, the Pakistan Railway was absolved from the liability when the goods were requisitioned by the agent of the consignor. The point whether there was a contract between the consignor and the delivering Railway was at issue before us as well as before the lower Appellate Court, and it was necessary for us to decide the point. Therefore, the decision in that case is not and cannot, be an obiter.

41. It is true that the plaintiff has not specially pleaded his contract with defendant No. 1 through his agent, but the facts so pleaded in paragraph 6 of the plaint that the goods were destroyed for negligence of the Railway administration, it cannot be said that there was no element of contract between the parties so pleaded. To quote Rankin, J., as he then was, in the case of Dekhari Tea Co., Ltd. v. Assam‑Bengal Railway Co., Ltd. "The plaint is, I think, drawn upon the principle that it is sufficient to state the facts relied upon without so framing the narrative as to commit the Pleader to any definite view as to the precise technical nature of his cause of action. Among the facts so pleaded in paragraphs 9 and 10 is that the goods were destroyed by reason of the negligence (paragraph 10 adds `unlawful acts') of the Steamship Company. No summons for particulars was taken out though pleadings were closed in April 1917. Nor was the plaintiffs' pleading attacked in any other mode. In these circumstances, I refused to cut down the meaning of paragraph 9 of the plaint by referring it solely to the allegation of a contract made in paragraph 8, but for the defendants' benefit. I made the plaintiffs' plead more carefully." It was a case where the plaintiff based his cause of action on a contract, and did not plead specifically the liability of the defen dant as a carrier or on tort, which gave an occasion to the learned counsel on the other side to contend that the liability as carrier and on tort was not pleaded in the plaint, therefore, it could not be given effect to. This argument gave occasion to Rankin, C. J. as he then was, to make the above observation.

42. There may be one contract and only one for carriage of goods for the whole distance from the station of the receiving Railway over the other Railway or Railways to the station of destination, freight to be paid on either end as in the case of Chunni Lal and others v. The Nizarn's Guaranteed State Railway Company Ltd. and Dekhari Tea Co. Ltd. v. Assam‑Bengal Railway Co. Ltd. or there may be a series of contracts with each of the. carriers as in the case of this Court in India General Navigation and Railway Company and another v. Baroda Kanta Dey and others ((1954) 6 D L R 341), and as contended in the present case;

43. It is not correct to say as has been said by the trial Court. "It is evident that the consignment was booked with the said foreign Railway at Calcutta who took upon themselves the liabilities and responsibilities according to the provisions of their law regarding the carrying of the consignment on their Railway or any other Railway up to the destination." There is nothing on record to support it or to support that it is a simple case of "through booking."

44. In the Allahabad Full Bench Case referred to above and relied on by my learned brother, on the evidence adduced in that case, it has been held that it was a case of one contract and only one. So it has been held that when Railway a Company receives or undertakes to carry goods from a station on its Railway to a place on another distinct Railway with which it communicates, this is evidence of contract with the receiving Company for the whole distance, and the other Railway Company will be regarded as their agent and not as contracting with the bailor. So also in the Calcutta case mentioned above, on the evidence adduced and the circumstances in that case it has been held : "I think the plaintiffs made one contract and only one contract with the Railway Company that the goods should be carried all the way to Chittagong in consideration of one single and entire reward to the Railway Company in that be half."

45. After considering the cases referred to in the judgment Rankin, J., as he then was, observed (at page 19) : "Subject to any written documents, it is a question of fact for a jury to say whether there was one contract or more than one. The basis, however, of the above decisions is that it would be a strained and improbable inference to hold that a sender on an ordinary `through booking' transaction enters into a series of contracts with carriers 1, 2, and 3 making each carrier except the last his agent to make a further contract, or treating him as the next carrier's agent to make a further contract with the sender. If it be said that though there is an entire contract with the first carrier for the whole journey, yet there may also be a contract with each of the other carriers for their own part of the transit, this is no doubt is true. But as an inference it is still more elaborately improbable. It involves a contract and a parallel series of other contracts. This series has to be operated either by each carrier being treated as the senders' agent to contract with the next which involves a doubtful scheme for the transmission of authority ; or else by each carrier being treated as having made the previous one (or perhaps the first one) his agent to contract on his behalf while himself being the previous carriers' agent to perform. Again this latter view is possible, and in some cases it is right, such a position is a quasi partnership and illustrated by Gill v. M. S. and L. Railway Co. and G. I. P. Railway v. Radhadkishna. It has been put in argument that where for their mutual advan tage two Companies are in the habit of handling through traffic for a reward to be divided in proportions there is in substance a quasi partnership, and each is the agent of the other to contract. I do not agree". From this observation it is quite clear that there may be one contract and only one or a series of contracts by one consignor with the different carriers entered into by the consignor through his agent the receiving Railway with the other. Therefore, whether a particular case is a case of one contract and only one or of a series of contracts depends upon the evidence in the case, and each case is to be decided with reference to the facts of that case. "It is a question of fact for a Jury to say whether there was one contract or more than one." It is true that in the absence of evidence of such contract or a series of contracts, it would be a strained and improbable inference to hold either that a sender on an ordinary "through booking" entered into one contract or a series of contracts making one or each carrier except the last his agent. It is to be decided on the evidence on record.

46. Undoubtedly the burden lies on the plaintiff to prove it. The question is how can he prove it in the absence of three Railway receipts which were taken back from him by defendant No. 1 at the time of giving short delivery and which have not been produced, though called for, through Court. Further, under what arrangement with the E. I. Railway the defendant Railway carried the goods, has nit been disclosed. I am not very much impressed by the fact that the arrangement was between the two Railways, and the plaintiff not being a party to it cannot rely on it. It is not so much for the reliance of the plaintiff for the relief sought for against the Railway as it is for the Railway which is found to be in possession and dealing with the goods of the plaintiff to show the extent of their immunity for the losses found to have been occurred while the goods were in their custody. It is within their special knowledge. They should have produced it to show what was their liability. The E. B. Railway withheld all the documents. The Court can presume against the defendant that if those documents were produced, they would have supported the case of the plaintiff. To quote Rankin, J., as he then was, in the case of Dekhari Tea Co., Ltd. (at page 26) ".Now in this case I do not want to rely on any interpretation of section 106 beyond what I consider 'to be an interpretation that is consistent with what Baron Alderson says in Elkin v. Janson (1845) 14 L J Ex. 201 . . . . I think that upon ordinary principles of law, the plaintiff's evidence is sufficient, if not exactly ample, to call upon the defendants, to reply ; but in any case if I add, as I am entitled to do under section 106‑if I add as a fact which is of evidential value that defendants being under a duty to lay the materials before the Court, have laid no materials before the Court, I think the plaintiffs have made out their case".

47. If there was any such contract with the defendant they are liable for the loss of goods as bailee under the Contract Act and the Railways Act, as applicable in Pakistan. The question of one Sovereign State to be an agent of another Sovereign State, in this view of the matter, does not arise.

48. Section 80 of the Railways Act is an enabling section introduced in the Act for the benefit of the consignor or consignee to avoid the difficulty as to the forum of action and against which of the two or more Railways over which goods are sent action is to be taken. It is a recognition of common law right. It does not take away the common law right to sue the Railway on whose administration the loss occurred.

49. Apart from a contract, in view of the findings of both the Courts below that the E. B. Railway received the goods, and they were lost while on transit in that Railway, and in view of the findings of the lower appellate Court that the goods were lost due to negligence, absence of proper care or misconduct or negligence of the Railway staff, I think the E. B. Railway is liable for compensation for the loss of the goods as a carrier. In the case of Dekhari Tea Co. Ltd. v. Assam‑Bengal Railway Co. Ltd. though his Lordship Rankin, J., as he then was, doubted it in the following observation "Now, so far as regards the second way of stating the plaintiffs' case as given above, I am not satisfied that in the absence of any privity of contract the plaintiffs can‑‑apart from the Carriers Act (III of 1865)‑recover against the Steam ship Company as an insurer by reason that it is a common carrier. Such an action may be laid in tort and founded on the custom of the realm or it may be laid in contract, but the question is whether the custom of the realm makes the carrier responsible as an insurer to one who has not by himself or his agent delivered the goods to be carried. I do not say that it does not, but the cases cited to me do not convince me." In the subsequent case of K. C. Dhar v. Ahmad Bux his Lordship Rankin, C. J., has said that doubt expressed in the case of Dekhari Tea Co. Ltd. v. Assam‑Bengal Railway Co. Ltd. was `over cautious' considering the dicta of Lord Macnaughten in the case of The Irrewaddy Flotilla Company v. Bugwandas, and observed (at pages 888‑889 of the report) as follows : "Upon a consideration of the matter, from the point of principle, it may well be that the doubt, which I expressed, was over‑cautious, because in the judgment of Lord Macnaughten in the case of The Irrewaddy Flotilla Company v. Bugwandas, the principle of the matter was explained thus : "The obligation imposed by law on common carriers has nothing to do with contract in its origin. It is a duty cast upon common carriers by reason of their exercising a public employment for reward. "A breach of this duty', says Dallas C. J. (Bretherton v. Wood,') 3 Brod and Bing 54, is a breach of the law, and for this breach an action lies founded on the common law, which action wants not the aid of a contract to support it'. "And very soon after the decision in this Court of the Dekhari Tea Co.'s case the matter was dealt with in the case of London and North‑Western Railway Company v. Richard Hudson & Sons Limited, 1920 A C 324 by the judgment of Lord Dunedin, in a manner, which removed all room four the doubt I had expressed ; "That a common carrier is an insurer of goods entrusted to him for carriage, and can excuse himself on the ground of act of God, or of inherent vice (in which expression I include bad packing) of the goods themselves is axiomatic. Now Lord Manfield in Forward v. Pittard I T R 27 speaks of this obligation on the carrier's part as an obligation independent of the contract. By that I understand that it is not an adjected term to the contract as made, but is an obligation which attaches from the fact of the goods being carried by a common carrier, in favour of the owner of the goods, whoever he may be. For indeed in many common cases it would seem to be inaccurate to speak of a contract of carriage as being made between the carrier and the consignee. "In my judgment, therefore, the position is that a person, who has suffered loss by the common carrier's breach of his common law obligation, can maintain a suit independent of contract. There is no question of this suit being defeated merely by reason of the absence of privity of contract or of privity of contract of insurance." Therefore, I hold that independently of contract, the E. B. Railway defendant No. 1 being in possession of the goods, and ins fact carried part of it and lost the rest due to the negligence or misconduct of their staff is liable as a carrier for the short delivery.

50. Further, an action in tort lies against defendant No. 1 in view of the finding that he received the goods for carriage, and goods were lost while on transit in his custody due to negligence' and want of proper care or misconduct and negligence of his staff.

51. This liability in tort has been dealt with in the case of Dekhari Tea Co., which I have already quoted.

52. The learned District Judge was reluctant to make defendant No. 1 liable as carrier or in tort as the E. B. Railway is a State Railway in view of the definition of common carrier in section 2 of the Carriers Act (III of 1865), which excludes the Government from common carrier, and that an action in tort does not lie against the Crown.

53. I am unable to agree with the view taken by the learned District Judge. The Sovereign activity of the Crown stands absolutely on a different footing from the commercial function undertaken by the Crown, and the State Railway is an organisa tion standing on the same footing as any other organisation of carriers as has been held in the case of Mrs. Constance Zena Wells v. Governor‑General of India‑in‑Council. So in respect of the commercial activities of the Crown, no special privilege can be claimed so far as the suits for damages are concerned. Otherwise there may be cases as the present one in which the subject will be left in the wilderness without any remedy, against the Railway administration, a position which is apparently intolerable both for the Railway administration and for the subjects.

54. If this position, namely, that the Sovereign activity of the Crown stands absolutely on a different fototing from the commercial function undertaken by the Crown is accepted, then I doubt very much the authority of the Single Bench decision of the Calcutta High Court 57 C W N 164, relied on by my learned brother, for the proposition that one Sovereign State Railway cannot be an agent of another Sovereign State Railway.

55. Further, the term "carrier" is wider in significance than the term "common carrier" under the Carriers Act. In the case of F. D. R. Footwear v. N. W. Railway and others, it has been held that the Government is excluded from the definition of the common carrier for the purpose of Carriers Act, 1865, but Article 31 of the Limitation Act does not contain the expression "common carrier", it only applies to a "carrier", and is, therefore, presumably of a wider meaning, and, therefore, Article 31 does apply to State Railway. So also is held in the case of Alamgir Footwear & Co. v. Secretary of State and another.

56. I am not unmindful of the fact that here the plaintiff was not the consignor. The merchant at Calcutta was the consignor. But the facts remained that the goods were sold to the consignee the plaintiff, and it was despatched to him with intimation, and the Railway receipts were sent to him which entitled him to the goods and to take delivery of the same.

57. If the terms of contract of sale are such, and in the present case they are, as it appears, that delivery is to be made on rail the consignor undertaking to send the goods for the consignee, the former is agent of the latter, and the Railway becomes the bailee of the person to whom the goods are sent. The carrier's contract is with the person in whom the property in the goods are vested "the person whose property the goods are is prima facie the party with whom the contract is made". Lord Kenyon, C. J., in Dawes v. Pack ((1799) 8 T R 330), held that the consignor could not maintain an action if the property passed to the buyer on delivery to the carrier even though the consignor paid the price for booking. See also Bengal and North Western Railway and another v. Mul Chand (I L R 42 All. 655). There is no dispute about the status of the plaintiff, the consignee, to sue the Railway Company for damages for short delivery.

58. As to the amount of damages claimed in the suit, total claim laid at Rs. 2,192‑14‑0 including the probable profit of Rs. 150 and incidental costs of Rs.

25. There is no dispute about the amount of compensation in any of the Courts below nor before us, Therefore, the plaintiff, is entitled to get a decree for the amount claimed in the suit.

59. The result, therefore, is that, I allow this appeal, and set aside the judgment and decree of both the Courts below, and decree the suit with costs throughout. K. B. A. Appeal accepted.