1. In the suit which is the subject-matter of this appeal the plaintiffs alleged that they had purchased cotton piece goods from Messrs Sagar Mall Subhkaran of Ahmadabad and the bales were booked from Ahmadabad railway Station to Kishangunj railway station on the O.T Railway. There were 108 bales which were securely and properly packed; but at the time of delivery it was found that out of the total consignment three bales were fund tampered with and the contents thereof partly missing while one of the bales was found completely empty. Notices were served under Section 77 of the Railways Act and also under Section 80 of the CPC, but the Railway Administration failed to settle their claims. The plaintiffs, therefore, claimed a sum of Rs. 3,100/- from the defendants, namely, the O.T Railway Administration and the B.B and C.I Railway Administration. The suit was contested by defendant No. 1, namely, the O.T Railway Administration, and it was contended that notices were-not properly served and defendant No. 1 was not responsible for the loss.
2. Both the lower couts have held that the O.T Railway Administration was not the contracting railway and since the plaintiffs had not proved that the loss took place on the O.T Railway the suit was not maintainable. With regard to the claim against the B.B and C.I Railway, it appears that the suit was not maintainable because it was found that notice under Section 77 of the Railways Act was not served upon the B.B and C.I Railway Administration within the statutory period of six months as contemplated by the section. So the suit of the plaintiffs was dismissed as against all the defendants.
3. In support of this appeal learned Counsel on behalf of the appellants did not challenge the finding of the lower courts that the notice served under the Railways Act was not served on the B.B and C.I Railway within the statutory period mentioned in S. 77, but the point taken on behalf of the appellants is that the suit should have been decreed as against the O.T Railway because it had failed to show that the loss did not occur while the goods were in course of transit over that railway.
4. We are unable to accept this argument as right. Section 80 of the Railways Act gives the plaintiffs the choice of claiming their remedy either against the railway administration to which the goods were consigned or against the railway administration on which the loss occurred. Section 80 is in the following terms:
“80. Notwithstanding anything in any agreement purporting to limit the liability of a railway Administration with respect to traffic while on the railway of another administration, a suit for compensation for loss of the life of, or personal injury to, a passenger, or for loss, destruction or deterioration of animals or goods where the passenger was or the animals or goods were booked through over the railways of two or more railway administrations, may be brought either against the railway administration from which the passenger obtained his pass or purchased his ticket, or to which the animals or goods were delivered by the consignor thereof, as the case may be, or against the railway administration on-whose railway the loss, injury, destruction or deterioration occurred.”
5. It is settled that where the goods are consigned to a railway for delivery at a railway station on another railway and the suit for damages for short delivery is brought against the Governor-General or the Union of India representing the latter railway where, however, the loss does not take place, the latter cannot be made liable for the loss on the theory of agency or partnership; see for instance the decision of this High Court of Sinha and Das JJ., in Governor-General in Council v. Sukhdeo Ram, AIR 1949 Pat 329.
6. In the present case the suit of the plaintiffs against the B.B and C.I Railway, which is the contracting railway, is not maintainable since notice under Section 77 of the Railways Act was not served upon it within the statutory time imposed by that section. But if the plaintiffs were able to prove that the loss occurred while the consignment was in the custody of the O.T Railway, they could have substantiated their claim against the O.T Railway and got a decree under the provisions of Section 80 of the Railways Act.
7. In the present case there is no allegation in the plaint that the goods were lost while they were in the custody of the O.T Railway. One witness, namely, Lachmi Narain, was examined in support of their case; but we have examined his evidence and we find no statement of his that the loss or deterioration took place while the consignment was in the custody of the O.T Railway.
8. In these circumstances it is obvious that the claim of the plaintiffs against the O.T Railway must also fail and the order of dismissal of the suit made by the two lower courts is correct as a matter of law. But the argument on behalf of the appellants is that the onus was upon the O.T Railway to make a disclosure of all the relevant documents in their possession and to show that the consignment was not lost or damaged while it was in their custody. We do not think that this argument is right.
9. In a case of this description the procedure to be followed is clearly laid down by the Privy Council in Surat Cotton Spinning and Weaving Mills Limited v. Secy, of State, 41 Cal WN 837 : (AIR 1937 PC 152), as follows:
“In a dispute arising in a case coming under the proviso to risk note B, the procedure is the following: On the occurence of either of the cases, (a) or (b), the obligation on the part of the railway to disclose the nature of their dealings with the consignment, while under their control, arises immediately and is not postponed to the stage of litigation. If the consignor is not satisfied, recourse to a Court of law is contemplated and the railway should submit their evidence first at the trial.
If the consignor be not even then satisfied with the disclosure made, he should say so and the Court will decide whether the consignor's demands go beyond the obligation of the railway. The railway should then have an opportunity of meeting the demands of the consignor, so far as endorsed by the Court before their case is closed; but if they fail to take this opportunity, they will be in breach of their contractual obligation of disclosure.
The question that next arises is whether misconduct may fairly be inferred from the evidence of the railway; if so, the consignor is absolved from his original burden of proof. But in this case the decision of the Court may be given after both sides have closed their evidence. It is for the railway to decide whether they have adduced all the evidence they consider desirable in avoidance of a fair inference of misconduct. If they withhold any material evidence, they may either be in breach of the contractual obligation of disclosure or on the next question of a fair inference may expose themselves to the presumption under Section 114(g) of the Evidence Act. If the obligation of disclosure has been discharged and the evidence given by the railway does not lead to a fair inference of misconduct, the proviso will cease to operate and the consignor will be relegated to his original burden of proof of misconduct.”
10. This passage is quoted with approval by Rai J., in Governor-General in Council v. Visheshwar Lal, AIR 1947 Pat 84 at p. 90, and we hold that this is the correct procedure to be followed. In the present case it is admitted by the appellants that after the suit was instituted the defendants did not give any evidence, nor did they disclose how the consignment was dealt with in the course of transit. It was, therefore, the duty of the plaintiffs to apply to the court that the defendants should be asked to discover all the documents in their possession with regard to the custody of the goods in the course of transit on the O.T Railway.
11. The plaintiffs could have made an application under O. II, R. 12 of the CPC, for discovery of documents, and also under O. 11, R. 14 of the CPC, for the production of documents. In the present case no attempt was made on behalf of the plaintiffs to ask for discovery of the documents from the defendant railway and, therefore, the plaintiffs cannot rely upon the abstract doctrine of onus of proof and ask that a presumption should be drawn that the loss took place while the goods were in the custody of the O.T Railway. The onus of proof was certainly on the plaintiffs before they could succeed in their claim against the O.T Railway. The plaintiffs could discharge that onus by asking for discovery of the documents from the defendant railway under the provisions of O. 11, R. 12 or O. 11, R. 14.
12. But the plaintiffs did not make any such application for discovery. It was observed by Sinha J., in a similar case, Firm Badridas of Purulia v. Governor-General for India in Council, AIR 1947 Pat 118, that in similar circumstances the plaintiffs cannot ask for a remand of the case to the lower court for filling up the lacuna in the evidence. In that case the plaintiff filed a suit for damages for loss incurred by him for short delivery, but did not call upon the railway administration in the trial court to furnish material facts relating to the carriage of the goods from stage to stage to make out a case of misconduct on the part of the railway administration. It was held by the High Court that the plaintiffs were not entitled to make a grievance in the High Court in the absence of any application made by him in the trial court calling upon the railway administration to make a discovery of the documents in their possession. A similar view was taken by Meredith J., in Governor-General in Council v. Thakursi Dass, AIR 1948 Pat 45, and it was held by him that where the plaintiff did not call for further disclosure from the railway, there was no onus on the court to see that the parties followed the proper procedure indicated in the Privy Council case; and where the plaintiff did not call for further disclosure from the railway administration in the lower court and thus failed to conduct his case properly and from the evidence either disclosed by the railway administration or led by the plaintiff an inference of misconduct could not be drawn, there was no case for remand by the High Court. We hold that the decisions in AIR 1948 Pat 41 and AIR 1947 Pat 118, lay down the correct law on the point, and for the reasons enunciated in those cases, the plaintiffs in the present case are not entitled to a remand in order to be able to produce further evidence with regard to the question whether the loss of consignment took place within the limits of the O.T Railway.
13. In our opinion, there is no merit in this second appeal and it must accordingly be dismissed. There will be no order as to costs.
M.K.S
14. Appeal dismissed.