P L D 1956 Karachi 402 (PLP)

VELLANI, J.‑‑The plaintiff has filed this suit against the defendant to recover Rs. 3,733 being the value (including anticipated profit) of one bundle of leather short delivered by the North‑Western Railway at Karachi out of a consignment of six bundles of leather railed from Sailcotranus on the Madras and Southern Mahratta Railway. The main defenses relate to the notice under section 80, Civil P. C. and' the exemption from liability clamed under rule 29 (2) of Goods Tariff Part I‑A On the 19th March 1951, the parties filed consent issues, but at the trial I re‑settled the issues as follows :‑ (1) Is the plaintiff firm registered ? (2) Whether the rights under the Railway Receipt bearing No. 58307 have been transferred to Abdul Raoof ? If so, whether the plaintiff can maintain the suit ? (3) Whether the notice under section 80 Civil P. C. is bad for not having been addressed to the General Manager, North‑Western Railway, Lahore ? (4) Whether Rule 29 (2) of the Goods Tariff Part I‑A exempts defendant from liability ? (5) To what relief if any is the plaintiff entitled ? Neither party sought any further issue. Documents Exhs. 6/1 to 6/12 were admitted in evidence by consent of parties. Upon Exh. 6/13 which is a certified copy of the entry from the register of firms showing that the plaintiff is a regis tered firm being produced, the defendant dropped issue

1. At the beginning of his arguments, the learned advocate for the defendant accepted the position that Abdul Raoof was only the clearing agent of the plaintiff‑firm, and that the endorsement by the plaintiff‑firm of the railway receipt Exh. 6/1 in favour of Abdul Raoof was meant merely to enable him to clear the goods from the Railway, and to effect no transfer of the goods. The plaintiff examined Abdul Latif, Exh. 7 one of its partners who said that Abdul Raoof was their clearing agent who was not then present at Karachi and whose where-abouts could not be found. He said that the plaintiff went to take delivery of the goods after 25th March 1948, as soon as it came to know that the goods had arrived. Five out of six packages were delivered on the 8th April 1948, and the Railway servants informed the plaintiff that one of the packages appeared to have got under other goods, but no delivery of it was made in spite of calls upon the railway. Before 8th April 1948, Abdul Raoof went daily and the plaintiff's representative went occa sionally to make enquiries as to the arrival of the goods but could get no information of arrival till just before 8th April 1948. He proved that the value‑of the leather goods in the undelivered package was Rs. 3,397‑8‑0 which was the invoice price. In cross‑examination he said that the railway receipt Exh. 6/1 was received by the plaintiff in the last week of March i.e. between the 2?nd and the 31st March, but could not say exactly on what date, although he admitted that it may have been one or two days after 23rd April 1948. The defendant examined Nabi Gul Khan, Exh. 8, the plinth delivery clerk of the Karachi City Station who produced the gate pass which authorised the plaintiff to take delivery of the six packages of which five only were delivered, Jamil Hassan, Exh. 9 who was then the goods unloading clerk at Karachi City Station, who said he had unloaded the consignment of six packages on the 25th March 1948, and found them to tally with the "summary" which is a list of goods loaded in each wagon usually placed inside the wagon before being sealed, Aquiq Ahmad Exh. 10 the goods clerk, Karachi City, who proved the procedure under which the posting clerk makes entries from the "summary" into the delivery book which each delivery clerk has from which he ascertains what goods have arrived at Karachi. Issue 1.‑The defendant has accepted that Exh. 6/13 proves that the plaintiff is a registered firm. I therefore answer this issue in the affirmative. Issue 2.‑This issue was rightly dropped by the defendant at the time of argument. The evidence of Abdul Latif Husseni Exh. 7 is that Abdul Raoof was the plaintiff's clearing agent and there appears no reason to think that this statement is not true. The endorsement of Railway Receipt Exh. 6/1 in his favour was necessary to enable him to clear the goods for the plaintiff. I therefore answer the first part of issue 2 in the negative and the second part in the affirmative. Issue 3.‑The plaintiff sent two notices in respect of the missing package one dated 5th July 1948, addressed to the General Manager (Claims), North‑Western Railway, Lahore, Exh. 6/3, and the other dated 7th September 1948 to the Secre tary, Government of Pakistan, Railway Department, Karachi, Exh. 6/6 respectively under section 77 of the Railways Act and section 80, Civil P. C. It was rightly said for the defendant that Exh. 6/6, dated 7eh September 1948 is not a valid notice under section 80, Civil P.C. because it was not addressed to the General Manager of the North‑Western Railway, as amending Central Act VII of 1948 passed on the 15th June 1948, requires. As Harries, C. J., observed in Sandhya Trading Co. v. Governor‑General, Dominion of India (A I R 1950 Cal. 426) in a similar case, The Government of the Province of Bombay v. Pestonji Ardeshire Wadia and others (A I R 1949 P C 143 P L D 1949 PC 31) is authority for saying that the provisions of section 80 are imperative and should be strictly complied with before it can be said that a notice valid in law has been served on the Government. The plaintiff however has relied upon Exh. 6/3 dated 5th July 1948. which is also a notice under section 77 Railways Act contending that it complies with the provisions of section 80, Civil P. C. For the defendant it was said that the word 'Claims' appears in brackets after "the General Manager," and there is no railway officer so called, but it is clear from Exh. 6/4 that au answer was sent for the General Manager of the North Western Railway to Exh. 6/3 asking the plaintiff to communi cate further with the Divisional Superintendent, Northwestern Railway, Karachi. There therefore appears no force in the contention raised. It was not contended that Exh. 6/3 did not state the cause of action, the name, description and the place of residence of the plaintiff or the relief claimed. It was then objected that notices under section 77 of the Railways Act and section 80, Civil P. C. must be two separate notices, and reference was made to (Firm) Balakram Atmaram v. Secretary of State (A I R 1935 All. 900), but there it was held that a notice under section 80, Civil P. C., served on the Collector of a District is not a sufficient notice for the purpose of section 77 Railways Act upon the Central Government. That case is now also distinguishable on the ground that section 140, Rail ways Act requires the notice under section 77 of that Act to be served upon the Manager of a Railway and section 80, Civil P. C. requires the notice under it to be left with the General Manager of the Railway concerned, both apparently being the same officer. I, therefore, hold that Exh. 6/3 satisfies the pro visions of both section 77 of the Railways Act and section 80, Civil P. C. The answer to issue 3 as framed is in the affirmative, but that issue was framed with reference to Exh. 6/6. I find however that Exh. 6/3 is as well a notice under section 80, Civil P. C. Issue 4.‑Rule 29 (2) of the Goods Tariff Act, Part I‑A is the same as rule 28 (2) of the same Tariff as it used to be. It reads as follows :‑ That in respect of goods not removed from railway premises at station of destination within the time allowed free of demurrage and wharfage the railway is not liable in any respect for any loss, destruction, deterioration of or damage to such goods arising from whatever cause notwith standing that the railway may have warehoused or otherwise kept the goods and notwithstanding that the railway shall be entitled to be paid the authorized charges for goods so left on their premises. The free time allowed is 24 hours after the arrival of the goods. Walsh, J., in Sohan Pal Munna Lai v. The East Indian Railway Company (I L R 44 All. 218 at 226) adverted to section 54, Railways Act and said that what it contemplates in rules prescribing general con ditions with regard to receiving, forwarding and delivering of goods by the railway, and that if the rules attempt to cut down the definition of delivery, they would be inconsistent with the provisions of the Act and would, therefore, be bad. To the learned judge's mind, section 54 has nothing to do with the responsibility y of the railway as a bailee. In Governor‑General in Council v. L. Jagannath (A I R 1943 Lah. 244), the same rule came up for consideration before Dhawan, J.. and was sought to be supported under section 54 of the Act as being a rule with respect to delivery of goods. But the learned judge found after considering the previous case law that the contract of the railway is not only to carry but also to deliver the goods, and therefore the liability of the railway extends to a reasonable time after the arrival of the goods at the destina tion. He held that the rule in fact curtails the responsibility of the railway under sections 151, 152 and 161, Contract Act declared by section 72 of the Railways Act. The same question came before Achhruram, J., in hidya Sagar v. Governor‑General in Council (A I R 1949 Lah. 166) where the learned judge referred to the case in Governor‑General in Council v. L. Jagamnath but did not consider its ratio decidendi. The learned Judge there held that the 'railway was exonerated independently of the provisions of the rule. Before me the defendant has sought to support the rule not under section 54 but under section‑47 (1) (f) of the Rail ways Act, which requires the railway to make general rules consistent with the Act for regulating the terms and conditions on which the railway administration will warehouse or retain goods at any station on behalf of the consignee or owner. Reliance was placed upon Bengal and N.‑W. Railway and another v. Mulchand (I L R 42 All. 655 at p. 6581) and it was said that 24 hours is a reasonable time for a consignee to take delivery, that the railway in a contract of carriage does not undertake the res ponsibility of a warehouseman, and that beyond 24 hours the question of responsibility is one mainly for warehousing. The short answer to this argument is that the rule does not in fact regulate any terms and conditions on which the railway will warehouse the goods. The period of 24 hours prescribed is inconsistent with the responsibility of the railway to deliver within a reasonable time, and what is reasonable time necessarily depends upon the facts of each case. The answer to issue 4 therefore is that rule 29 (2) of the Goods Tariff Part I‑A purports to curtail in point of time the defen dant's statutory liability, and that it is bad in so far as it seeks to do so. Issue 5.‑The defendant appears to have assumed that in order to succeed all it had to show was that the plaintiff did not take delivery within 24 hours and the Court would assume that the loss took place after that period. There will therefore be a' decree for the plaintiff for Rs. 3,393‑8‑0 which is the value of the leather in the package lost, interest thereon from date of suit till judgment costs of the suit and interest on the decretal amount till payment. K. B. A. Suit decreed.