Sulaiman, J.:— This is as civil revision from the decree of a learned Judge of the Court of Small Causes. 93 bags were despatched in one wagon from Turtipur be Agra in a goods brain. When the train arrived at Magarwara station, in was reported be the Station Master that a door of the wagon was open. He resealed the door. When the brain arrived at Cawnpore, the contents of the wagon were checked and in was discovered that five bags were missing. When the goods were despatched they were placed in the wagon which had been fastened with a piece of twine and seals were pub on the doors. But admittedly the doors were not looked. The learned Judge of the Small Cause Court had before him evidence that thefts were constant so much so that about ten wagons with broken seals were discovered every month, and that in spite of this circumstance no precautions were taken to look the wagons or to keep any extra watch on the trains or the stations. The learned Judge was not bound to bring on record the whole of the oral evidence which was tendered before him, nor was he bound to refer in his judgment to all the evidence that had been produced before him. He has however referred to the above-mentioned circumstances in the judgment, and has then recorded a categorical finding that the five bags were lost and that in was proved that they were lost by the wilful neglect on the part of the Bail way administration in not securing the wagon properly and the wilful neglect of its servants in not watching in properly. The learned Advocate for the applicant contends before us that the learned Judge of the Court below was not justified in drawing this inference from the above circumstances. He urges that the question of wilful neglect is a mixed question of law and fact and that it is open be this Court be go into the matter. In cannot be disputed that when a suit is instituted for damages for the loss of certain packages the burden lies on the plaintiff in the first instance be prove the wilful neglect or negligence on the part of the Bail way administration. The Court below has not placed the burden on the Company. In has however recorded a clear finding that negligence has been established. Unless there was no evidence before the Judge be support the finding or unless the finding was an impossible or a perverse one, in is unfair to interfere on the revision side, we are not even justified in assuming that there was no evidence before him other than what now appears on the record.
2. Great reliance has been placed fay the learned Advocate for the applicant on the case of East Indian Railway Company v. Nathmal Behari Lal (1). A reference be the facts as stated on page 321 would indicate that probably the Court below had there laid the burden of proof on the Railway Company and held that the Company had failed be discharge that burden, Furthermore, in is be noted that in that case in had been established that the examination of the seals had been continued at every station until the last but one before the arrival of the train at Cawnpore. The seals had been found intact all along except when the train arrived at Cawnpore. There was no finding that the door was found open. The case also was one under risk-note H and not B. Having regard be these points one may be able to distinguish that case from the present case. On the other hand the case [Bengal and North Western Railway Company v. Haji Mutsaddi (2)) does help the respondent. That was a case of second appeal where apparently all the evidence had been brought on the record. The only two circumstances pointed out by the Court below be support a finding that the negligence had been established were that the carriages were not properly looked and that thefts were constant. The High Court in second appeal affirmed the finding of negligence and even expressed the view that the finding was justified.
3. The learned Judge of the Court below had before him all these circumstances and possibly other evidence also and had the case reported in 7 A.L.J 833 brought to his notice. He has recorded a clear finding that the negligence was established. In is impossible be say that he was wrong. I would therefore dismiss this application.
Mukerji, J.:— I agree that we should not interfere in this revision.
4. Two cases have been cited one by the Court below and one in this Court, and in has been contended on behalf of the applicant that the two cases are inconsistent and we ought be follow the later case of East Indian Railway Company v. Nathmal Behari Lal in preference be the case [Bengal and North Western Railway Company v. Haji Mutsaddi ).
5. In my opinion both the cases were rightly decided, having regard be the facts found in those cases. The earlier case was decided on facts found by the lower appellate Court as in was a case of second appeal. In the later case the learned Judges differed from the inference drawn by the Judge of the Small Cause Court, and on the facts found by the learned Judge of the Small Cause Court held that no case of wilful neglect had been established.
6. If we bake the findings of the learned Judge in this case, which, by the by, may not be exhaustive, we find at least this fact established that thefts from brains were constant. They were being reported be the Station Master and according to one of the witnesses produced by the Bail way Company themselves he found 10 cases of breaking of seals of goods wagons in the course of every month.
7. It is clear therefore that, the circumstances were such as be pub the Railway Company on their guard and induce them be arrange things in such a way that these constant thefts should become rare. In the circumstances, I am prepared be infer, with the Court below that, a case of wilful neglect on the part of the servants of the Company has been established. In this view, I would uphold the decree of the Court below.
8. By the Court:— The order of the Court is that the application in the revision is dismissed with costs.
9. Revision dismissed.