P L D 1960 Dacca 66 (PLP)

5. When the Steamer Companies preferred the Second Appeal No. 875 of 1954, a Rule was issued calling upon the plaintiff and defendants Nos. 2 and 3 opposite parties to show cause why permission should not be given to the petitioners to file a Second Appeal against the judgment and decree passed by the Subordinate Judge, 4th Court, Dacca, on the 20th February 1954, in Money Appeal No. 58 of 1953. On the 12th July 1954, the Court passed the following order in the Rule: "Let the Rule be made absolute, and permission be given to the petitioners to file the Second Appeal against the judgment and decree passed by the 4th Subordinate Judge, Dacca, on 20th April 1954, and any objection as to the competency of the appeal will be heard at the time of the hearing of the appeal."

6. On the 15th November 1954, this appeal was admitted under Order XLI, rule 11 of the Code of Civil Procedure. In view of the above order, we are unable to accept the contention of Mr. Acharyya that in the Rule the Court had left open the question as to the admission of this appeal. In the Rule, the Court clearly gave leave to file appeal. Further, the order admitting the appeal under Order XLI, rule 11 of the Code of Civil Procedure may also be interpreted to mean that such a leave was granted. We are, therefore, of the opinion that the Steamer Companies have obtained necessary leave and direction for filing this Second Appeal. Hence, we overrule this objection.

7. Now, coming to the merits, we find that the plaintiff's case was as follows : He delivered one bale of handloom cloth at Narayanganj Ghat to the Steamer Companies for carriage to Prodaba Railway Station of the E. B. Railway, partly by steamer and partly by rail, and to be delivered to the plaintiff under Parcel Way Bill No. 2925, dated the 5th February 1952. The plaintiff demanded the delivery of the said bale at Poradah Railway Station, but the Railway Company failed to deliver the same. Hence, the plaintiff alleged that he bad suffered a loss for the non‑delivery of the consignment, and was entitled to recover the value of the goods amounting to Rs. 3,365 from the Railway and Steamer Companies. He further claimed Rs. 635 as damages. Thus, he laid his claim at Rs. 4,

000. The plaintiff further stated that lie had served notices under section 10 of the Carriers Act, under section 77 of the Indian Railways Act, and under section 80 of the Code of Civil Procedure on the defen dants, but they did not care to settle his claim.

8. The defence of the Steamer Companies was that they made over the consignment to the Railway at Goalundo in good condition under a clear receipt, and, in view of clause 10 of the Forwarding Note, they could not be made liable for the con signment.

9. The defence of the Federation of Pakistan representing the Railway Company was that the bale in question was received in good condition at Goalundo, and it was loaded in Van No. 2810 of 24 Down Train on 5/6th February 1952 ; that the said bale was, however, lost due to a theft in the running train over which the Railway Administration had no control ; and that their attempts to trace the lost bale did not meet with any success. They further contended that the plaintiff's claim was excessive.

10. The learned Munsif found (1) that all the statutory notices had been served ; (2) that the suit as framed was main tainable ; (3) that the contract was not divisible, and, as such, the Steamer Companies were also liable for non‑delivery of the consignment ; (4) that the bale in question was misappropriated by the Railway employees, and that they had concocted the story of theft in order to save their skin ; and (5) that the plaintiff was entitled to claim Rs. 3,365 as price of the missing bale, and Rs. 135 as damages. He, therefore, decreed the suit for Rs. 3,500 against defendant No. 2, Federation of Pakistan, and defendants Nos. 4 and 5, the Steamer Companies.

11. The Federation of Pakistan representing the Railway Administration preferred an appeal against the judgment and decree of the learned Munsif.

12. The learned Subordinate Judge, who heard the appeal, upheld the finding of the learned Munsif that the suit was maintainable, and that the Steamer Companies would also be liable for the loss, if any. He was, however, unable to agree with the learned Munsif that the Railway employees were res ponsible for the loss. He found (1) that the loss was on account of theft in the running train by some unknown persons over which the Railway had no control ; and (2) that the Railway had taken such care of the bale in question as a man of ordinary .prudence would do. Hence, he allowed the appeal, and set aside the judgment and decree of the trial Court so far as defendants Nos. 1 to 3 were concerned.

13. As stated above, one of these two appeals was preferred by the Steamer Companies. Hence, the question is whether, in view of the fact that they had delivered the consignment to the Railway Company on a clear receipt, they would be absolved from the liability.

14. In view of the Division Bench decision of this Court in I. G. N. & Rly., Co. v. Baroda Kanta Dey (P L D 1954 Dacca 84) Mr. Motilal Acharyya has found it difficult to contend that the Steamer Companies were liable for the loss. In the above case, a similar question arose, and Guha, J., observed, after discussing various authorities: "On a review of the above authorities and on a consideration of the Forwarding Note (Exh. 3), and the circumstances of the case, we hold that the Steamer Companies were agents of their disclosed principal the B. and A. Railways, and that the contract was not one and indivisible, but was divisible contracts, and as the goods were delivered to the Railway Administration in good order on `clear receipt' by the Steamer Companies, and admittedly lost in carriage over the Railway transport system, the Steamer Companies are not liable for loss of or damage to the consignment, and we accept the contention of the appellants as sound, and reject that of the respondent as untenable."

15. Hence, the only question for consideration in these appeals is if the Railway Administration is liable for the loss. Mr. Acharyya, the learned Advocate for the plaintiff‑appellant in S. A. No. 671 of 1954, has contended that the learned Subordinate Judge was not justified in reversing the finding of the learned Munsif that this loss was due to the negligence of the Railway employees. On the other hand, the learned Advocate for the Federation of Pakistan has contended that the Railway was not guilty of any negligence, and hence the learned Subordi nate Judge rightly dismissed the claim of the plaintiff as against the Railway Administration. Hence, we have to consider whether circumstances have been established in this case to justify an infe rence of negligence on the part of the Railway Administration.

16. Section 72 (1) of the Railways Act provides that the responsibility of the Railway Administration for loss of goods shall, subject to other provisions of the Act, be that of a bailee under sections 151, 152 and 161 of the Contract Act.

17. Under section 151 of the Contract Act, the bailee is bound to take such care of the goods baled to him as a man of ordinary prudence would, under similar circumstances, take of its own goods. The learned Munsif has found that the story of theft was concocted and that the Railway employees really misappropriated the bale in question. On the other hand, the learned Subordinate Judge has accepted the story of theft. Now, this finding of fact is binding on us in a Second Appeal. The learned Subordinate Judge has, however, not fully considered whether the act or conduct of the Railway servants at the time of theft amounts to negligence or not. In our opinion, this is a question of law, and we are entitled to enter into this question in this appeal.

18. The following facts are not in dispute. The bale in question weighed 4 maunds 28 seers. The theft took place between Kushtia Court and Jagati Station. The distance between these two stations is about 2 or 3 miles. The train takes 7 to 8 minutes to cover this distance. The van had no footboard, and that the lock was checked by the Railway employees at Kushtia Court. The theft was detected soon after the arrival of the train at Jagati Station, and the train halted there for about twenty‑six minutes. The night was a moon‑lit night. From the above facts, it is obvious that the miscreants must have taken at least 4 or 5 minutes to break open the lock of the running van. Hence, one would be justified in inferring that this theft took place within a mile‑or a half from Jagati Station. In these circumstances, it would have occurred to any person of ordinary prudence that it would not be possible for the theft or thieves to remove a bale weighing 4 maunds 28 seers from the place of theft within a very short time. If the Railway employees cared to look for the bale they would have found it not far away from the station. As a matter of fact, sometime afterwards, the porter did recover another bale from a short distance from Jagati Station. The Van Clerk, the Guard or even the Station Master did not care to look for this stolen bale. One may, therefore, be inclined to think that it was intentional. In any event, one can safely say that the Railway employees acted in a negligent manner in not carrying to recover the stolen bale. In other words, the action or omission on the part of the Railway employees amounts to negligence in this case. We may here further observe that from the evidence it appears that there were cases of theft on the running train ; but, curiously enough, no sentry accompanied this train. In view of the facts and circumstances of the case, we are of opinion that the Railway servants did not take such care of the goods as was required of a prudent man.

19. It is thus clear that the Railway Company cannot escape from liability for this loss.

20. As regards the quantum of loss, no argument was advanced before us. The trial Court had found in the plaintiff's favour, and the lower Appellate Court did not touch that finding.

21. The result is that Appeals Nos. 671 of 1954 and 875 of 1954 are allowed, and the judgment and decree of the lower Appellate Court are set aside. The plaintiff's suit is decreed for Rs. 3,500 with proportionate costs throughout as against defendant No. 2, Federation of Pakistan only. The plaintiff's suit is, however, dismissed as against defendants Nos. 4 and 5, the Steamer Companies, without any order as to costs.

22. The alternative application under section 115 of the Code of Civil Procedure is, however, dismissed without any order as to costs. CHOWDHURY, J.‑I agree. K. B. A./A. H. Appeals allowed.