Choudhary, J.:— This is a plaintiff's appeal which arises out of.

2. Admittedly, on 20-2-1944, the plaintiff purchased and booked 75 tins of butter weighing 37½ maunds from Kamtaul station (O.T Railway) for Chapra Station (O.T Railway) per railway receipts Nos. 286503 and 284505, and the said consignments reached Chapra Station on 21-2-1944, by 143 up parcel express train at 7.5 a.m The case of the plaintiff is that the butter was to be delivered to the plaintiff at Chapra and he had to supply it to Mr. G.P Saraf, military supplier at Chapra, on 21-2-1944. The plaintiff endorsed the aforesaid railway receipts when the said consignments reached Chapra on 21-2-1944, and handed them over to the station Master. The consignments, however, owing to culpable negligence and misconduct of the railway servants, were not unloaded at Chapra and were carried over to Bhatpar Rani Station (O.T Railway) where they were unloaded. Attempts were made on behalf of the plaintiff to have the consignments rebooked for Chapra so as to be delivered to him at that place, but notwithstanding all efforts they could not be delivered to the plaintiff. The butter ultimately deteriorated and was spoiled. The plaintiff, therefore, instituted the suit for recovery of Rs. 4003/2/6 as being the price of the butter, Rs. 800/10/- as profit at 20 per cent, which would have been made in case the consignments had been delivered to him in time, Rs. 245/12/- as interest at 12 per cent, per annum from 21-2-1944, to 25-7-1944, Rs. 1500/- as general damages and Rs. 400/- by way of loss suffered by him on account of taking steps for delivery of the consignments. The total claim that was made amounted to Rs. 6950/8/6.

3. Defendant No. 1 is the Central Government of India, Governor-General in Council, and defendant No. 2 is the O.T Railway through General-Manager, O.T Railway, Gorakhpur, district Gorakhpur. The suit was contested only by defendant No. 2 who will be referred to hereinafter as the defendant. The defendant did not deny that the butter was to be supplied by the plaintiff to Mr. G.P Saraf at Chapra. The suit was, however, contested on the ground that the consignments were not carried over to Bhatpar Rani due to the negligence of the railway staff. The defence as raised was that the plaintiff with dishonest motive and for reasons best known to him, in spite of having signed in the railway receipts and the register, managed not to get the tins unloaded at Chapra Station and allowed the same to go up to Bhatpar Rani where they had to be unloaded, and the Station Master of Bhatpar Rani suspected some foul play by the plaintiff as he found the tins near the end of the eastern platform after the departure of 143 up, and from an enquiry from the plaintiff he was informed that the tins had been brought for booking to Gorakhpur.

4. It is alleged that, after having suspected the statement of the plaintiff, the Station Master of Bhatpar Rani reported the matter to the Sub-Inspector of police at Khampur, who ordered him to detain the tins until a thorough inquiry was made into the matter. The defence has raised a further plea that on 7-3-1944, the Station Master ??? Manager, O.T Railway, to send the tins to Chapra booked under prepaid way bill or invoice as the owner desired, no wharfage being charged, but in spite of the said order having been passed and the plaintiff having been instructed to take delivery accordingly, refused to do so, whereupon on 24-3-1944, the Station Master of Bhatpar Rani had to report to the Traffic Manager that the owner refused to pay the railway freight and also to produce the Magistrate's permit for booking the tins, which was quite essential, there being a ban on the transport of butter outside Gorakhpur district.

5. It is also said that in spite of repeated askings the plaintiff did not produce the permit and show his readiness to have the tins booked on payment of all the railway charges due, and, therefore, the consignments remained undelivered and, at last, was taken possession of by the Sub-Inspector of police, Chapra under the Defence of India Rules.

6. At the trial the defendant adduced evidence to show that the tins of butter were unloaded at Chapra railway station and, thereafter, the plaintiff, by bringing some of the railway staff in collusion, managed to reload them in the said parcel train and got them unloaded at Bhatpur Rani Station. In view of the definite plea that the defendant had taken in the written statement that the plaintiff managed not to get the tins unloaded at Chapra station and allowed the same to go to Bhatpur Rani Station, the learned Subordinate Judge should not have permitted the defendant to adduce evidence to make out a case not pleaded in the written statement and which was contrary to what was said in that written state-men. In — ‘Hem Cliand v. Pearey Lal, AIR 1942 PC 64 (A) their Lordships of the Judicial Committee held that the procedure in allowing the parties to adduce evidence on points which arose on the evidence led by the parties but were not raised in the pleadings or issues is irregular and should not be allowed without amending the pleadings and raising the necessary issues.

7. The point has been thoroughly discussed in a Bench decision of this Court in — ‘Jaigobind Misir v. Nagesar Prasad’, AIR 1953 Pat 326 (B), to which brother Narayan, J., was a party, wherein it has been held that when a particular claim has not been made in the defence no amount of evidence could be allowed to be adduced with regard to it. In an earlier decision their Lordships of the Judicial Committee in — ‘Siddik Mohamed Shah v. Mt. Saran’, AIR 1930 PC 57 (1) (C) held that where a claim has been never made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward. On the authorities referred to above, it is clear that the learned Subordinate Judge erred in permitting the defendant to adduce evidence, in proof of a case which was never pleaded in the written statement but, on the other hand was contrary to the case made out therein, and even if such evidence was adduced, it should not have been looked into while deciding the case. The evidence on this point, therefore, has to be discarded altogether from consideration.

8. The learned Subordinate Judge found that ??? the consignments at Chapra station and reloading the same has not been established by the defendant and the evidence adduced to prove the same was unreliable and collusive entries were made in certain registers to show the unloading and delivery of the tins at Chapra. He has also held that exhibits E, E(5) and F which were produced in support of the contention raised by the defendant that the consignments were not over carried due to negligence or the railway staff were forged documents, but nevertheless he came to the final conclusion that the consignments in question were carried from Chapra to Bhatpar Rani in an unbooked condition as a result of collusion between the plaintiff and some railway employees and that it was not on account of the negligence or misconduct of the defendant's servants that the consignments in question were not actually delivered to the plaintiff at Chapra, and on this finding he dismissed the suit of the plaintiff who has, therefore, preferred this appeal.

9. The first point that has been strenuously argued by the learned Counsel appearing for the defendant-respondent is that the consignments were unloaded and delivered to the plaintiff at Chapra and they were then reloaded under some collusion. As already observed, the case of unloading and reloading at Chapra as made out in the evidence is against the pleading raised in the written statement, according to which, the consignments were never unloaded at Chapra but the plaintiff managed not to get them unloaded at Chapra and allowed the same to go up to Bhatpur Rani. The defendant should not have been allowed, as already observed, to adduce evidence on this point and the evidence of the witnesses regarding unloading and reloading at Chapra has to be discarded. Even if we take into consideration the evidence adduced on this point, it, in my opinion, is not satisfactory to prove the case so made out.

(His Lordship discussed the evidence and proceeded:)

10. The other question that has to be considered is whether the consignments were overcarried and unloaded at Bhatpar Rani railway station due to the negligence of the Railway staff or due to the collusion of the plaintiff with the men of the railway staff.

(His Lordship discussed the evidence and after observing that the evidence on the side of the defendant was unreliable and frabricated proceeded:)

11. It has also been argued that the consignments could not be rebooked for Chapra railway station on account of the failure of the plaintiff to obtain a permit for booking them from Bhatpar Rani which is in the province of Uttar Pradesh to Chapra which is in Bihar, inasmuch as butter could not be booked from Uttar Pradesh to Bihar without a permit. It was not, however, the business of the plaintiff to obtain a permit. The consignments were overcarried due to the negligence of the staff of the railway administration and it was for defendant to have taken proper steps either by procuring a permit or in any other way that could be possible to rebook the consignments to Chapra railway station to be delivered ??? to do that cannot escape its liability on the ground that the plaintiff failed to procure the permit.

12. The finding of the learned Subordinate Judge that the consignments in question were carried from Chapra to Bhatpar Rani in an unbooked condition as a result of collusion between the plaintiff and some railway employees is based on surmises and conjectures, and, is not, in my opinion, supported by any evidence on the record. In my opinion, his finding on this point is absolutely wrong, and the consignment in question was overcarried to Bhatpar Rani due to the negligence of the railway staff. It is, therefore, clear that; the defendant is liable to pay damages to the plaintiff.

13. The plaintiff has claimed Rs. 4003/2/6 as price of the butter, and the learned Subordinate Judge has rightly held that it was really purchased for that amount. The learned Counsel appearing for the defendant-respondent has not challenged this finding. With regard to the claim of profit, the learned Subordinate Judge has held that in case of success the plaintiff would have been entitled to it at a rate of 10 per cent, and not at the rate of 20 per cent, as claimed by him. This finding also has not been seriously challenged by the learned Counsel for the respondent, and, therefore, the plaintiff is entitled to Rs. 400/5/- by way of profit that he could have made if the consignments had been delivered to him in time. The plaintiff has claimed Rs. 1500/- as general damages. The learned Subordinate Judge has held that he could never be entitled to this amount for this item, and I quite agree with him. Nothing has been shown to us on the basis of which we could award any amount for this item.

14. He has also claimed Rs. 400/- as loss suffered by him on account of taking steps for delivery of the consignments, and in support of his claim he has filed a memorandum of expenditure, exhibit 6. The learned Subordinate Judge has rightly held that in case of success the plaintiff could have been given Rs. 200/- on this account, and, in my opinion, he is entitled to get this amount of Rs. 200/- for this item. Interest has been claimed prior to the institution of the suit, but the learned Counsel appearing for the appellant has frankly conceded that he is not entitled to any interest prior to the institution of the suit, there being no contract for payment of interest. The plaintiff is, therefore, not entitled to the interest prior to the institution of the suit. He is, however, entitled to interest from the date of the institution of the suit at the rate of 6 per cent, per annum. The plaintiff is, therefore, entitled to a sum of Rs. 4603/7/6 on account of the price of the butter, profit that he could have made and the loss suffered by him in taking steps for delivery with interest at 6 per cent, per annum from the date of the suit till the date of the decree. He is also entitled to future interest at the rate of 6 per cent, per annum on the decretal amount from the date of the decree to the date of realization.

15. In the result the appeal succeeds in part, the judgment and decree of the court below are against the Defendant To The Extent Indicated Above with Proportionate Costs Throughout.

Naitayan, J.:— I agree. This is a singular instance bringing to light the gross misbehaviour of the employees of the Railway administration formerly known as O.T Railway and now as N.E Railway. A businessman was harassed in a crude & a disgraceful manner, and but for the care and circumspection shown by the Additional Sessions Judge who heard the appeal against his conviction the mischief of the Railway employees would have succeeded and their improper acts would not have come into prominence. The tins were intentionally overcarried, and when the plaintiff protested and moved higher authorities, documents were forged, and the employees invented and put forward absurd pleas for defending themselves. It is regrettable that the administration should have sanctioned the filing of a written statement containing absurd pleas, and if these Railway employees had no scruple in giving false evidence in this case, that is probably for the reason that the administration had undertaken their defence. In fact, however, there is no legitimate answer to the claims of plaintiff, and the perjured and the fabricated evidence which is forthcoming in this case has simply exposed the dishonest nature of the defence and the malpractices of these Railway employees. The matter cannot be allowed to rest here, and steps ought to be taken for bringing to book the Railway employees whose mischievous deeds have given rise to this litigation and had led to the prosecution of the plaintiff.

V.R.B

16. Appeal partly allowed.