P L D 1954 Lahore 271 (PLP)

AKHLAQUE. HUSSAIN, J.‑This appeal arises out of a suit for damages brought by the plaintiff‑respondent against the defendant appellant for non‑delivery of parcels containing pieces of cloth of different kinds booked with the North Western Railway at Karachi on the 30th June 1948 for carriage to Lyallpur. Several defences were raised by the defendant‑appellant and they are embodied in the following issues framed by the learned trial Court :‑ (1) Was a notice under section 77, Railways Act, necessary and what is the effect of its not being given ? (2) Was not a valid notice under section 80, C. P. C. given ? (3) Was it necessary to, insure the goods in suit under section 75, Railways Act, and what is the effect of this omission ? (4) Were the goods in suit stolen in transit and, therefore, the defendant is not liable to pay their price ? (5) If issue No. 4 is not proved, what amount is the plaintiff entitled to? The pleas contained in issues Nos. 1 and 2, although mentioned in the grounds of appeal, were withdrawn at the time of the hearing of the appeal. The finding of the 'lower Court on issue No. 4 was also not seriously challenged before us. The learned civil judge, upon a consideration of the evidence on record, held that the alleged theft was not proved and that the responsibility for the loss lay on the railway. We have ourselves considered all the evidence and are in full agreement with the finding of the learned Judge. Learned counsel ‑for the appellant, however, strenuously contended before us that since there was admittedly some silk in certain pieces of cloth contained in the parcel in question, the railway was relieved of all responsibility in respect of the loss, in view of the provisions contained in section 75 of the Railways Act which requires that the ‑value and contents of packages or parcels containing articles specified in the second schedule of the Act should be declared at the time of the delivery of the parcel or package for carriage by railway. Item No. (xii) of the second schedule of the Act is described thus: "Silk in a manufactured or un-manufactured state, and whether wrought up or not wrought up with other materials." In order to determine the meaning of this expression, several questions have to be considered, namely, is the word 'silk' used in its colloquial, business or technical sense ; is the entire article in which silk is wrought up with other materials to be considered silk, in the proportion of the silk to the other materials at all a relevant factor in answering the second question. It would be useful to explain the genesis of the expression under consideration at the very outset. The expression "silks in a manufactured or un-manufactured state and whether wrought up or not wrought up with other materials" is mentioned in section I of the English Carrier Act of 1830 (11 G. 4 and I. W. 4 c. 68). This expression was copied out verbatim in section 10 of the Railways Act (XVIII of 1854), and reproduced in Schedule II of the (Indian) Carriers Act (III of 1865) with the modification that instead of 'silk' 'silk' was inserted. The phrase in the Indian Railways Act (IV of 1879) was the same as in Act XVIII of 1854, but in Act IX of 1890 the word 'silk' was used in the singular as in the Indian Carriers Act. In 1876 Bombay High Court decided the point in question under Act XVIII of 1854 (4 B H C R 129), in 1883, the Madras High Court considered the point (6 Mad. 120) with reference to Act IV of 1879, and in 1915, the High Court of Fort William decided a relevant case under the present Act (I L R 42 Cal 888). As in all the three cases reliance was placed upon the English case of Brunt v. The Midland Railway Company decided by the Court of Exchequer in 1867, under the English Carriers Act (33 L J Ex. 187), it is necessary to consider it at length. In Brunt v. The Midland Railway Company the question arose whether "silk web", a kind of silk webbing, a yard of which weighed about three ounces, comprising about an ounce of silk, one ounce and a quarter of India‑rubber and three quarters of an ounce of cotton ; the value of the materials being, the silk 12 d. or 131 d. per ounce, the India‑rubber 6 d. per ounce, and the cotton about 4J d. per ounce, was or was not 'silk,' within the meaning of the Carriers Act. The learned trial judge reserved the question of whether the elastic webbing was silk within the meaning of the Carriers Act for the Court instead of leaving it to the jury. All the four learned judges answered the question in the affirmative. Pollock C. B. expressed his opinion thus: "I think this is a question of fact which very properly might be left to a jury. It is left to us, and I think there can be no doubt that this precise matter that is now before us was con templated by the act of parliament, and that the article in question is silk wrought up with some other materials. There is no doubt the argument of my Brother Bayes is entitled to great weight, if there was room for it within the compass of the question. But what was said, and the view' presented to us by Mr: Wills, is really an answer. My brother Hayes says "where do you draw the line ? "Mr. Wills says "that is the question we ask you." The line is shifted according to the circumstances. But the question that we have to answer is, not where to draw the line, but whether this‑is within the line. I think, for all practical and reasonable purposes, wherever the line may be, and leaving the line in a state of doubt ..that this is within the line." Martin, B. said: "Who was the proper tribunal to decide this matter ? I cannot entertain any doubt that the proper tribunal is a jury to decide as a matter of fact whether a certain fabric is a silk-manufacture wrought up with other materials. We are put here in the place of a jury. We have a fabric of which the most valuable portion is silk ; the face of it is silk, and the object of the manufacture is to give it a face of silk, and an ignorant person would say it was silk. It is called elastic silk web, and, therefore, it seems to me a jury would draw the conclusion that this was a silk fabric wrought up with other materials......" Channel, B. expressed himself shortly: "It appears to me the question is one of fact for a jury ............ It seems to me, looking at the evidence and forming our opinion on an examination of the article itself, the rule should be made absolute. I decide it sitting as a juror and not on matter of law. The fourth learned judge Pigott, B. expressed his agreement with his learned colleagues because: "Seeing that the ingredient 'silk' amounts to more in proportion and value to any other article. I cannot doubt that this is substantially a silk‑manufacture within the act of parliament," It would be observed that the learned judges treated the question as one of fact and, as such, for the exclusive decision of the jury. There cannot be any doubt whatever that in this Court the question cannot be treated as a question of fact. The interpretation of the meaning to be placed upon the words of the statute is a pure question of law and so is its application to the facts found by the Court. In section 3 of the Evidence Act 'Fact' has been defined as "(1) anything, state of things, or relation of things capable of being perceived by the senses ; and (2) any mental condition of which any person is conscious." Therefore, in Pakis tan (and in India), the question whether a certain article, whose particulars have been determined and found by the Court, is within C the meaning of the word 'silk' as used in the Railways Act, cannot be a question of fact. Even in England a question of fact has been defined as anything which is the subject of evidence. (Best on Evidence) and the question before us is not the subject of evidence but a subject for interpreting and determining the meaning of a certain expression in an Act of the legislature. The Court has to interpret the language of the statute and infer therefrom a test or standard which will be applied to the facts found. The following observation of Pigott, B. in the case under consideration, is not without significance :‑‑ "This is simply a. question of fact and might have been decided by the jury. But I cannot help thinking it partakes very much, of the nature of a question of late, I therefore think it very firstly reserved for the Court to draw inferences." It would thus appear that as the approach of the learned judges in Brunt's case to the question being diametrically opposed to that which judges in this country are bound to make, their opinions cannot be of any particular help in deciding similar cases in Pakistan‑and in India. Coming back to the meaning of the expression in question, we do not find any words either in the English statute, or in the corresponding Indian statutes, to warrant the opinion of Pollock C. B. that no fixed meaning can be assigned to the expression and that in each case it would be s, question of fact to be decided only by 'seeing' and 'examining' the article in dispute, whether a particular article should or should not be treated as 'silks,' within the meaning of the statute. Nor can there be any justification. upon the words of the statute, of the various tests put forward by Martin, B. "a fabric of which the most valuable portion is silk;" "the face of it is silk," "the object of the manufacture is to give it a face of silk;" "an ignorant person would say it was: silk " In fact all these considerations are irrelevant to, and besides, the object of this particular legislation as laid down by Pollock, C. B,‑

and with which we respectfully agree‑namely, "to protect carriers against carrying articles of great value at a low price." The language employed in section 75 of the Railways Act will bear this out. The marginal note of that section runs:-- "Further provision with respect to the liability of a railway administration as a carrier of articles of special value." The section itself lays down that the railway administration shall not be responsible for the loss etc. unless the value and contents of the parcel or package, in which any of the articles mentioned in the second schedule are contained, are declared, "and, if so required by the administration, paid or engaged to pay a percentage on the value so declared by way of compensation for increased risk." It is the "special" or "great" value of the article which is the basis of the provision in question and not its appearance and name etc. There is also nothing in the language used in the expression in question to justify the test which appealed to Pigott B. "that the ingredient 'silk' amounts to more in proportion and value to any other article." The statute does not say that where silk is wrought up with other materials the whole thing is to be decided as silk. In fact, Pollock C. B. does not accept the test. According to him, it would be for the jury, after considering the proportion of the various materials used, to say whether it is silk or not silk. The learned judges in the case reported in 28 I C 245 also remarked :‑ "We do not, and indeed we cannot, bind all Courts to follow the exact test which was adopted by the Madras Court in one case and by the Bombay Court in another, (namely, the test laid down by Pigott B. and followed in 4 B H C R 129 and 6 Mad. 420). Each case must depend upon its own circum stances. If the greater value of the silk be not the test, and the statute does not say so, is it to be left entirely to the whims of a jury‑or a judge‑to say in each case whether the plaintiff is or is not entitled to relief against the railway. In other words, according to the opinion of the learned judges in Brunt's case, it is altogether impossible for a consignor to know definitely at the time of deliver ing the goods to the railway for carriage whether he should or should not comply with the provisions of section 75 of the Railways Act, and, whether, if he honestly decides not to declare, he will be entitled to obtain redress from a Law Court. It is possible that while in one case a judge or jury may consider an article to be silk even though only one per cent of silk is wrought up with other materials, in another case an honest opinion may be expressed that a similar article is not silk even though there is 600% real silk in it. This view is so repugnant to one of the chief objects of legislation, namely, of laying down a definite rule of conduct for the public or the subject; and to fairness and justice, that we find ourselves entirely unable to accept it. In so far as the rules in 4 B H C R 129 and 6 Mad. 420 lay down, following Bunt v. The Midland Railway Company, that the question whether an article is silk or not silk, within the meaning of the statute, is one of fact. We are respectfully, for reasons already stated, unable to follow them. Indeed throughout the two judgments, it lags not been possible for the learned judges to avoid expressions which clearly indicate that the question before them was that of law, e.g., in the Bombay case, it was laid down that "proper test is whether value of the silk wrought up with other materials is more than one‑half of the value of the fabric." What, except the correct meaning and interpretation of the language of the Act, can be the criterion for the propriety of the test? In the Madras case, the learned judges stated: "The decision of this case turns on the construction we are to place on the terms "silks" in a manufactured state and whether wrought up or not with any other materials." We are unable to agree with the Subordinate judge that these terms were intended to apply to all classes of goods in which silk may be introduced ; (A very clear question of law) yet it is difficult to arrive at any precise definition of the term. (This implies an admission that a difficult question of law is involved)! Where there is a larger value of silk than cotton estimated at these rates, we consider the article may fairly be held to fall within the description "silks" in the schedule to the Act." We have already given our reasons for not accepting the tests laid down in the three Indian cases decided by the Indian Courts on the basis of the opinion of the learned judges in Brunt v. The Midland Railway Company. In our opinion, in the absence of anything to indicate that the word `silk' was used in the Act either in the colloquial or business meaning as understood is any particular locality, it must be interpreted in its technical meaning alone. We are fortified in this conclusion by a decision of a Bench of our Court reported in B. B & C. I. Ry. Co. v. Mt. Abdul Raqib and others (A I R 1934 Lah. 186.), wherein it was held that artificial silk cannot be treated as silk within the meaning of the Act‑a propo sition with which we respectfully agree. We also cannot subscribe to the view that where silk is mixed with other material or materials, the entire thing may, either according to the opinion of a particular judge, or if the value of the silk is greater than that of the other material, may be considered as "silk" within the meaning of the Act. One meaning of the expression in question is that it (7) is the "silk"‑the real silk‑alone, whether wrought up or not wrought up with other material, which is an article contemplated by section

75. The other possible‑but highly improbable‑meaning would be that it is (?) an article whether it is composed of pure silk or of silk along with other material which is the subject of the provisions of section

75. If the object of the section is to provide for articles of special value and against the increased risk, why should an article containing only. 1% of silk be considered silk i e., and article of a special value. And we have already shown that there is nothing in the Act to fix, or justify the fixing of, any ratio between the silk and other material in order to bring the article within its meaning. The only fair and reasonable conclusion is that it is only the real silk of the value of more than Rs.300, whether it is wrought up or not wrought up with other materials, which alone has to be declared in accordance with the provisions of section 75 of the Railways Act. We are not unaware that it may be objected, 'how to determine the price of real silk used in a piece of cloth?' The task, though extremely tedious and difficult is not impossible. It would be nearly as difficult to determine the proportion of the real silk; and this has to be done whichever view may be adopted. Considerations of difficulty, however great, should not be allowed to render the law vague and uncertain. It is a matter for the legislature to consider. Turning to the facts of the case before us, we find that in the plaint the allegation was that the cloth contained in the parcels in question was composed of artificial silk. Muhammad Habib (P. W. 2) in. his cross‑examination said that only such pieces of cloth in the parcel which are known as "nasha" and "shanghai" contained a small proportion of real silk and the rest was artificial silk. P. W. 3, the plaintiff himself, stated in his cross‑examination that none of the pieces of cloth was of real silk. We take it that there was a certain amount of real silk in some of the pieces ; but is view of the meaning of the language of the section determined by us, before the third issue can be answered in favour of the defendant‑appellant, we must find that the silk ingredient was worth more than Rs.

300. There is no evidence on the point one way or the other and this leads us to the consideration of the question of onus. According to the ruling reported is I L R 42 All. 76, burden lies on the railway to prove that the parcel contained articles of the kind and value mentioned in section

75. The Calcutta High Court, in the case reported in I L R 58 Cal. 989, has taken the contrary view and has based its decision upon the provisions of section 1.06 of the Evidence Act. While it is true that the railway were not aware either of the quantity or value of the 'silk' contained in the parcels in question, is there, at the same time, anything‑regarding these two facts "specially within the knowledge of" the plaintiff‑respondents. The plaintiff admittedly is not a manufacturer of the cloth in question ; he purchased it in the market through a broker and there is nothing whatever on the record to show that he possessed or could posses the knowledge or data regarding the exact proportion of the silk mixed with other materials in the pieces of cloth in question He is, therefore, clearly not a person possessed of any special knowledge regarding the facts in question and the onus cannot, therefore, be shifted to him. The question of onus was present to the minds of the framers of the Railways Act as will appear from the following quotation from subsection (2) of section 75 itself :‑ "The burden of proving the value so declared to have been the true value, shall, notwithstanding anything in the declaration, lie on the person claiming the compensation.'' The Legislature could, if it so wanted, have laid down a similar rule‑with regard to the provisions in subsection (1) of that section. It may be that it would be extremely bard for the railway in cases like this to discharge the initial onus that rests upon it ; but that cannot be any fair or legal reason to transfer this hardship to the equally innocent consignor. To our mind, therefore, it cannot be laid down as a general rule that in every case the burden of proof lies upon the consignor. In the absence of proof of possession of special knowledge on the part of the consignor, the initial onus must lie upon the railway. In the present case, the railway did not even plead that the alleged silk contained in the parcel was worth more than Rs. 300, nor was this matter mentioned in the grounds of appeal. Indeed, there is not a single ground in the memorandum of appeal challenging the finding of the learned lower Court on issue No.

3. We, therefore, see no reason to disturb that finding, and dismiss this appeal with costs. A. H. Appeal dismissed.