P L D 1956 (W (PLP)

YAQUB ALI, J.‑Abdul Haq, a cloth merchant of Lahore (Plaintiff‑Respondent) filed a suit against the Federation of Pakistan (defendant‑appellant) for recovery of Rs.4,450 as damages on account of non‑delivery of two bales of cloth entrusted by him to the Railway authorities at Karachi on 9th of March 1950 for consignment to Lahore. The plaintiff's claim having been decreed by the two Courts below, the defendant has come up in second appeal before this Court. The goods were dispatched by 27‑Up Parcel Express on 9th of March 1950 and found to have been stolen when the train reached Khanewal at 1‑57 a.m. on 12th of March 1950. Aggrieved by the non‑delivery of the bales, the plaintiff served statutory notices on the Railway authorities claiming damages amounting to Rs.4,267/13/6 as the price of the two bales and Rs.182/2/6 as interest thereon. In reply to the plaintiff's claim, the Railway authorities maintained that the bales in question were lost on accounts of theft in running train and as such they were not liable to indemnify the plaintiff for the loss of the stolen goods. On 2nd of November 1950, the plaintiff filed the suit for recovery of damages and the learned trial Judge, on the pleadings of the parties framed the follow ing issues :‑ (1) Whether the consignment was stolen from the Railway's custody from a running train? O. P. n. (2) Whether the Railway took as much care of the consignment as a man of ordinary prudence would under similar circumstances take of his own similar goods? O. P. D. (3) Whether the loss was occasioned by the misconduct of the Railway? O. P. D. (4) What was the price of the goods lost? (5) Whether the plaintiff is entitled to interest by way of damages or otherwise? (6) Relief. Under issue No. 1. the learned trial judge found that the bales had been removed with the connivance of the persons in charge of the train and, in all probability, the removal was effected at Multan City Railway Station where the train stopped for fourteen minutes, while the scheduled stoppage was only five minutes. In consequence of this finding, issues Nos. 2 and 3 were also found against the defendant. Under issue No. 4, the price of the two bales of cloth was assessed at Rs.4,267‑13‑6 according to the cash memo. (Eah. P. 1 evidencing the purchase by the plaintiff in the said sum Rs.182‑2‑6 were allowed as interest by way of damages on the price of the goods lost on account of the negligence of the defendant, and the plaintiff's suit was decreed for recovery of Rs.4,

450. On appeal the above findings of the trial Court were confirmed by the learned District Judge. At the trial the plaintiff produced evidence regarding the purchase of the two bales of cloth and their delivery by him to the Railway authorities at Karachi for consignment to Lahore. The Non‑delivery of the bales in question being admitted by the defendant, the only question which arose for decision on facts was the manner in which these were lost while in transit between Karachi and Lahore. In support of the contention that the two bales had been lost on account of theft in a running train, the defendant led evidence to prove that the two bales in question were loaded in wagon No. 34103 which formed part of 27‑Up Parcel Express; the wagon was rivetted and sealed before it left Karachi and up to the time the train reached Multan Cantonment the rivets and seals of this wagon remained intact. In support of its claim that as much care was taken of the consignment as a man of ordinary prudence would, under similar circums tances, take of his own .goods of the same quality and bulk, the defendant produced in evidence a number of its employees who were on duty at Karachi, Multan and Khanewal Railway Stations. Besides the oral testimony of these witnesses, numerous documents, such as Seal Checking Registers main tained at various railway stations, Summary of Vehicles and the Rough Journal of the Guard, who accompanied this train, were exhibited on the record to show that up to Multan Can tonment wherever this train stopped proper watch was maintained and the rivets and seals of wagon No. 34103 were found intact until the train reached Khanewal at 1‑57 a. m. and the station‑side door of this wagon was found open. The door was then immediately closed and temporary seals were put on it and the wagon detached from the main train to check its contents in presence of the higher authorities later on. Telegraphic information of this incident was sent by the Guard to the different authorities concerned at once. On 13th of March 1950, the wagon was reopened in presence of a number of Railway officials and it was found that instead of eighty parcels originally loaded at Karachi the two bales consigned by the plaintiff were missing The employees on duty at Multan Railway Station deposed that when the train arrived and left that Station the seals and the rivets of all the wagons were checked and found intact. Under these circumstances, if there was no other stoppage between Multan Cantonment and Khanewal, the only conclusion which could be drawn from the facts deposed to by these witnesses would have been that the two bales consigned by the plaintiff had been stolen from running train somewhere between Multan Cantonment and Khanewal Railway Stations. A copy of the Railway Journal produced by Amir Bakhsh Guard, who accompanied this train, however, shows that after 27‑Up Parcel Express left Multan Cantonment, it stopped for four teen minutes at Multan City Railway Station but curiously enough the defendant did not produce any evidence to show that after the train arrived at Multan City Railway Station and before it left for Khanewal, proper watch was maintained and the rivets and seals of that particular wagon were checked and found intact. This may be due to the negligence on the part of the learned counsel who conducted the defendant's case in the trial Court, but in the absence of any evidence as to what care was taken to protect the plaintiff's goods at this Railway Station, the two Courts below have come to the conclusion that these were stolen with the connivance of Railway employees at Multan City Railway Station. There is no evidence on the record on which the finding of theft with the connivance of the Railway employees could be sustained, but in case the onus lay on the defendant to show that it performed the duty imposed upon it as a bailee under section 151 of the Contract Act, to take as much care of the goods in question as an ordinary prudent man would take of his own goods of the same quality and by bulk, the loss of these goods on account of defendant's negligence could be clearly inferred. In assailing the findings of the Courts below, the main grievance made by the learned counsel for the appellant before us was that the onus of issue No. 2 was wrongly placed upon the defendant. Reliance was placed in this behalf on Dwarka Nath PaiMohan Chaudhary v. Rivers Steam Navigation Co. Ltd. (AIR 1917 P C 173) in which their Lordships of the Privy Council, dealing with an action in respect of two parcels of jute laden on board the flat " Jattrapore", which were lost by fire, observed :‑ " The weight to be attached to the judgment of the learned judge of first instance, who saw the witnesses, is a good deal lessened by reason of his having apparently thrown the burden of proof on the wrong party. He states that it was, in his opinion, incumbent upon the defendant Company to satisfy him that they had taken such care of these goods as a man of ordinary prudence would take of his own goods. This, in their Lordship's view, is not a correct statement of the law. It is true that under the Evidence Act of 1872, section 106, `when any fact is especially within the knowledge of any person, the burden of proving that fact is on him; and it was therefore right that the defendant Company should call the material witnesses who were on the spot, as it seems to have done. But this provision of the law of evidence does not discharge the plaintiffs from proving the want of due diligence, or (expressing it otherwise) the negligence, of the servants of the defendant Company. It may be for the Company to lay the materials before the Court; but it remains for the plaintiffs to satisfy the Court that the true inference from these materials is that the servants of the defendant Company have not shown due care, skill and nerve. "This pronouncement of their Lordships has been recently the subject matter of discussion in two judgments of this Court. In Federation of Pakistan v. Sheikh Fazal Karim, (P L D 1954 Lah. 245)our learned brother B. Z. Kaikaus J., dealing with a suit for damages for non‑delivery or loss of goods against the Railway, observed;- "The matter will, I think, be clarified if we regard the issue framed as a composite issue made up of the two follow ing parts: (a) what did the defendant do in order to discharge his liability as bailee? (b) Was loss of goods occasioned by want of due diligence on the part of the defendant? In proof of the first part of the issue, the defendant has to prove the care that he took, or in other words all that he did to prevent loss of goods. If he leads no evidence the result will be a finding that he did nothing in the discharge of his duties. He will also have to lead evidence as to the manner of loss of goods for it is only his action in relation to the prevention of the loss in the manner in which loss occurred that is material. Section 76 of the Railways Act also casts the duty of proving the manner of loss on the Railway. That is the way I would explain the reasoning in Dwarka Nath PaiMohan Chaudhuri v. Rivers Steam Naviga tion Co. Ltd." In Federation of Pakistan v. Ehsan Elahi (P L D 1955 Lah. 303), the same learned judge again dealt with the question of allocation of onus of negligence in cases of loss or non delivery of goods entrusted to the Railway for carriage and, after dealing with the various aspects of this proposition and reviewing a large number of English and Indian authorities including Dwarka Nath's case, re‑affirmed the proposition already pronounced by him in Fazal Karim's case that the defendant Railway must prove what care it took to protect the goods entrusted to it for carriage as was enjoined upon it by the provisions of section 151 of the Contract Act as a bailee, and it was for the plaintiff then to show that in the discharge of its duties it had acted with negligence. One of us (Akhlaque Hussain J.) who was a party to the decision in Ehsan Elahi's case, while agreeing with the order proposed by B. Z. Kaikaus J. remarked that this Court was bound by the rule laid down by their Lordships of the Privy Council in Dwarka That's case regarding onus in relation to the question of negligence in a case like that; but applying that principle, he had no doubt, upon the evidence produced by both the parties, that negligence on the part of the Railway had been satisfactorily established in that case. Section 151 of the Contract Act subjects a bailee to the duty of taking as much care of the goods entrusted to him as a prudent man would take of his own goods of similar quality and bulk. That the bailee discharged his statutory duty in respect of the goods entrusted to him can obviously be proved by the bailee and not by the bailor. The onus; therefore, to prove what steps had been taken by the bailee in discharge of the duty imposed upon him by law would initially lie on him and not on the bailor. Section 106 of the Evidence Act also lays the onus on him to prove those facts. The question that arises, therefore, is what is the true import of the pronouncement of their Lordships of the Privy Council in Dwarka Nath's case. The learned trial judge in that case had stated that in his opinion it was incumbent on the defendant company to satisfy him that they had taken such care of the goods as a man of ordinary prudence would take of his own goods. This, in their Lordships' view, was not a correct statement of the law. So far as the provisions of section 106 of the Evidence Act are concerned, their Lord ships thought that it was right that the defendant company should call the material Witnesses, who were on the spot, as it seems to have done, but, in their Lordships' view, this pro vision of the law of evidence did not discharge the plaintiff from proving the want of due diligence, or (expressing it otherwise) the negligence of the servants of the defendant company. Does it mean that according to their Lordships section 106 of the Evidence Act places an initial onus on the bailee, and it is discharged by placing before the Court all the relevant material showing what measures were taken by him in discharge of his duty or does the onus remain throughout on the bailor to show that in discharge of his duty the bailee acted with negligence on his part and for that purpose may rely upon the evidence produced by the bailee or lead independent evidence to that effect? A question then arises what would be the result if the bailee omits to place all the material in his possession or power to show as to what steps he had taken in the discharge of his duty as a bailee. In the words of their Lordships, it was only right that the defendant should call all the material witnesses but how can these words be interpreted as laying an initial onus on the bailee to prove that he had taken all the necessary care to protect the goods entrusted to him by the bailor. In case no initial onus lies on the defendant, it is clear that an omission on his part to produce all the material evidence concerning the care taken by him to protect the goods cannot result in decreeing the plaintiff's suit. Section 151 of the Contract Act does not speak of any negligence, but merely states the duty imposed on a bailee. Although in an action, for tort the onus lies on the plaint to prove negligence as a result of which he has sustained wrongful loss, and it may be contended that it was for this reason that their Lordships of the Privy Council remarked that the provisions of section 106 of the Evidence Act did not discharge the plaintiff from proving the want of due to diligence or the negligence of the servants of the defendant company, yet the loss of goods entrusted to a bailee is prima facie evidence of his negligence, and the question still remains to be answered whether in spite of such loss any onus remains on the plaintiff to prove negligence after the defendant bailee has failed to prove that he had discharged his duty as a bailee under section 151 of the Contract. It is obvious that if the defendant satisfies the Court that he took as much care of the goods entrusted to him as a man of ordinary prudence would take of his own goods of similar quality and bulk, there will be no scope for the plaintiff to prove any negligence on the part of the defendant to indemnify him for the loss of his goods. Vice versa, if the plaintiff succeeds in proving negligence on the part of the defendant bailee, it will not be open to the defendant to contend or show that in the discharge of his duty he had acted according to what he was enjoined upon to do under section 151 of the Contract Act. Another possible view of the aforementioned dictum of their Lordships of the Privy Council in Dwarka Nath's case can be that whereas the onus to prove negligence remains throughout on the plaintiff, the omission on the part of the defendant bailee to disclose what steps were taken by him to protect the plaintiff's goods from loss etc. may give rise to a presumption of want of such care on the part of the defendant. But when analysed, it will be seen that this view practically results in allocating the onus to the defendant to disprove negligence on his part and in the absence of his producing satisfactory evidence to that effect the plaintiff need prove no more for decreeing of his claim. The real controversy in Dwarka Nath's case between the parties was whether the defendant company had taken necessary care of the goods entrusted to it to save them from fire. Before applying themselves to a close examina tion of the facts of that case, their Lordships remarked that good sense and the policy of the law imposed some limit upon the amount of care, skill and nerve, which are required of a person in a position of duty, who has to encounter a sudden emergency and cited an authority of the Court of Appeal The Bywell Castle (1879) 41 L T 747) in which, in the words of their Lordships of the Privy Council, each of the Lords Justices expressed himself in different language but to the same effect, as follows : "In a moment of extreme peril and difficulty you are not to expect perfect presence of mind, accurate judgment, and promptitude. If a man is suddenly put in an extremely. difficult position and a wrong order is given by him, it ought not in the circumstances to be attributed to him as a thing done with such want of nerve and skill as to amount to negligence. If in a sudden emergency a man does something which he might, as he knew the circumstances, reasonably think proper, he is not to be held guilty of negligence, because upon review of the facts, it can be seen that the course he had adopted was not in fact the best." Perhaps in a case of sudden emergency, such as fire, in spite of the defendant having proved the steps he had taken for the due care and protection of the goods entrusted to him, such questions might arise as to whether in a situation of emergency and suddenness the care and duty imposed upon a bailee would not vary according to the facts of each case and for this reason the onus would lie or, the plaintiff to prove negligence on the part of the defendant although it would be the duty of the defendant, as in all other cases, to show that he took that amount of care to protect the goods which section 151 of the Contract Act enjoins upon him to take. In the Seventh Edition of the Indian Contract Act by F. Pollock and D. F. Mulla at page 495, the learned commentator, dealing with the‑burden of proof in cases falling under sections 151 and 152, says that the loss or damage of goods entrusted to a bailee is prima facie evidence of negligence, and the burden of proof, therefore, to disprove negligence lies on the bailee; but at page 496 a special class of cases is mentioned where goods are destroyed by fire from some unknown cause while they are in the possession of a common carrier or a railway. Dwarka Nath's case is included in the list of those cases. It is only on this hypothesis that the decision in Dwarka Nath's case can be reconciled with the provisions of section 151 of the Contract Act and section 106 of the Evidence Act; otherwise, unless the bailee is subjected to disproving want of negligence, an omission on his part to lay all the material before the Court or to call witnesses on the spot to show what steps were taken to protect the plaintiff's goods cannot, logically speaking, discharge the plaintiff from independently proving the want of due deligence or negligence of the defendant. . Addressing ourselves now to the facts of this case, on going through the entire evidence, we have come to the con clusion that the appellant's omission to lead any evidence as to what care was taken at the Multan City Railway Station to protect the goods consigned by the plaintiff, it had failed to prove that the employees of the appellant had acted with that care which is imposed upon it by section 151 of the Contract Act. In case, however, the onus lay on the plaintiff to prove negligence on the part of the defendant, no such presumption could be raised against the defendant, for all that we know, the omission on the part of the defendant to produce evidence relating to what happened at Multan City Railway Station may be due to the negligence of its counsel and in any case it was open to the plaintiff to summon relevant evidence on that point. Another objection taken by the learned counsel for the appellant before us was that no interest could be allowed on the amount of damages claimed by the plaintiff in this case. There is no force in this contention because according to the statement of the plaintiff at the trial he claimed this amount as part of the profits which he would have made by the sale of the two bales of cloth in question It obvious that he would have made a fair amount of profit on the price actually paid by him. He had also incurred some expenditure in going to Karachi to make the purchase of these bales. The amount for which the suit has been decreed will, therefore, be taken as the market value of the goods at the time of their loss due to the negligence of the defendant. This appeal was filed in these Court 36 days beyond the prescribed period but in the circumstances of this case we condoned the delay, because the period was spent in obtaining a copy of the judgment of the trial Court. In view of our findings given above, this appeal fails and is dismissed with costs. AKHLAQUE HUSSAIN, J.‑I agree that this appeal should be dismissed. Since, however, this is the third recent case in this Court in which the ruling of their Lordships of the Privy Council in Dwarka Nath's case (AIR1917PC 173) has been the subject of considerable discussion, I feel it necessary to shortly state my own attitude towards it. In Federation of Pakistan v. Ehsan Elahi, I contended myself by saying that we are bound by that ruling because, firstly, I did not find any difficulty in applying the principle laid down by their Lorships to the facts of that case; and, secondly, I was, and am still, of the view that it is not open to any High Court in this country to consider the soundness of that ruling and thus indirectly, and perhaps unintentionally, cast doubt upon it. It is not for us to question the wisdom, or the logic, of a ruling of a superior tribunal; we have only to apply it‑to the facts of a case before us. I personally do not see any difficulty in applying the ruling in question to any possible combination of facts and I proceed to briefly state my reasons for this view. ' A suit against a railway administration for the loss, destruction or deterioration of goods delivered to the admi nistration to be carried by railway may be founded upon a contract or tort. In the former case, it is for the plaintiff to establish the breach of contract and the consequent damage. In the latter case, the plaintiff can succeed only by proving negligence on the part of the administration. Actionable negligence, however, consists in the failure of the defendant to take that care which he is, as a matter of duty, bound to observe and the neglect of which has occasioned the loss to the plaintiff. In either words, the burden in such a case is on the plaintiff to prove: a) that the defendant owed a duty to take a certain amount of care and (b) that he has failed to perform that duty of care. A plaintiff can prove negligence by only proving the failure of the defendant in taking the care which he was bound to take. This is what their Lordships were obviously alluding to when they observed in Dwarka Nath's case that the onus lay on the plaintiff to prove "the want of due deligence, or (expressing it otherwise) the negligence of the servants of the Now, obviously, before a plaintiff can prove negligence, or want of the care due froth the defendant, he has also to establish the amount or extent of care which it was the duty of the defendant to take. In the case of a railway company the measure of the care which it is bound to take has been laid down in the seventy‑second section of the Railways Act, that of a bailee. Therefore in a suit against a railway company or administration the plaintiff has to prove that the defendant failed to take the care, which, under section 151 of the Contract Act, it is the duty of a bailee to take. That section, be it noted, does not lay the onus on a bailee in a suit against him to prove that he took A the care which it was his duty to take. It only defines the measure of his duty; and a plaintiff can succeed only by proving its absence. Therefore it would be entirely erroneous on the part of a Court to cast any burden on the defendant by framing an issue whether he took due care of any care. In Dwarka Nath's case their Lordships observed that the learned judge of the first instance had stated "that it was, in his opinion, incumbent upon the defendant Company to satisfy him that they had taken such care of these goods as a man of ordinary prudence would take care of his goods This, in their Lordships' view, is not a correct statement of the law." (It will be noticed from the language of this question that here their Lordships had clearly the provision of section 151 of the Contract Act in mind while making the observation.) Their Lordships also indicated in unequivocal language that the provisions of section 106 of the Evidence Act cannot shift the onus of proving negligence, or want of due deligence, from the plaintiff to the defendant. They said :‑ "It is true that under the Evidence Act of 1872, section 106, 'when any fact is especially within the know ledge of any person, the burden of proving that fact is on him'; and it was therefore right that the defendant Company should call the material witnesses who were on the spot, as it seems to have done. But this provision of the law of evidence does not discharge the plaintiffs from proving the want of due deligence, or (expressing it other wise) the negligence, of the servants of the defendant Company." They further clarified the position vis‑a‑vis section 151 of the Contract Act by pointing out that:‑ "It may be for the Company to lay the materials before the Court; but it remains for the plaintiffs to satisfy the Court that the true inference from these materials is that the servants of the defendant Company have not shown due care, skill and nerve." Certain considerations, however have clouded a true appreciation of the position stated by their Lordships and it is therefore necessary to examine them. One is that loss is per se proof of negligence. It is true that this has been so laid down in some cases; but these must now be deemed to have been over‑ruled by the ruling in Dwarka Nath's case where it has been held that in such cases a plaintiff can only succeed by proving want of care or negligence on the part of the defendant. Had it been otherwise the suit would not have been for negligence but for loss. Section 72 of the Railways Act makes it clear that a claim against a railway administration can only be based upon "loss, destruction or deterioration" of the goods and the non‑performance in respect to them of the duty of care under section 151 of the Contract Act. Again the loss etc. may have occurred in spite of due care by the defendant. The next difficulty arises from the fact that according to section 106 of the Evidence Act the burden of proving certain facts is laid upon the defendant and from that the inference is drawn that the failure to discharge that onus must have some consequence and then the next step to my mind, fallacious‑is taken that the defendant having failed to prove those, or some of those, facts the plaintiff's suit must necessarily be decreed. Thus the initial onus on the plaintiff disappears without any effort on his part. In the first place, the burden of proving all relevant facts is not necessarily cast upon the bailee. Section 106 of the Evidence Act will be inapplicable to those facts relating to the dealing of the bailee with the goods, which are equally well‑known to the bailor. This is what their Lordships of the Privy Council apparently meant when they said: "It may be for the Company to lay the materials before the Court." Another point to note is that section 106 does not cast the burden of proving due care upon the defendant; it only makes it his duty to prove such facts relating to the care actually taken by him which are "especially within his knowledge". The burden of the issue whether loss has been occasioned by the failure of the defendant to take due care rests squarely upon the plaintiff throughout, under sections 101 and 102 of the Evidence Act; and while evidence is being led on that issue the plaintiff may be exonerated from proving certain relevant "facts" but not the issue itself. The failure to prove facts as required by section 106 may or may not give rise to a presumption against the defendant, e.g., where all the relevant records of the railway administration have been burnt or stolen. It will be for the Court to decide on the particular facts and circumstances of each case whether a presumption should or should not be raised against the defendant; and, if so, to what extent and with what result. Again certain relevant facts may also be in the know ledge of the plaintiff and, apart from the evidence produced by the defendant, he may lead evidence to prove them. Yet, again the evidence produced by the parties is not necessarily the only basis of a Court's finding; there may be certain circumstances apparent on the record, which may influence the mind of the Court. In short when the defendant has to prove certain facts under section 106 of the Evidence Act, the task of the plaintiff to discharge the onus lying upon him in respect of an (the main) issue under sections 101 and 102 Evidence Act may be lightened but he is never completely exonerated on account of that circumstance. If in a given case the defendant has to prove under section 106, even all the relevant facts it still remains for the plaintiff, in the words of their Lordships, "to satisfy the Court that D the true inference from these materials is that the servants of the defendant Company have not shown due care, skill and nerve"‑a task, which is always an essential part of the process of proof of an issue and which can be ignored by a party only at its peril. The only true issue in a case like the present is: Has the loss been caused by want of due care on the part of the defendant? The plaintiff may or may not lead any evidence. In either case, it is the duty of the defendant to prove those facts relating to the handling of the goods while they remained in his bailment which are specially within his knowledge. If he fails to do this, the Court may raise such presumption against him as is warranted by the circumstances of the case. Ultimately it is for the plaintiff to discharge the burden of the issue by satisfying the Court, with reference to the evidence, such presumptions as may arise and the circumstances of the case that the loss has been occasioned by the failure of the defendant to take duel care. A. H. Appeal dismissed.