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First Appeal No. 20 of 1951 decided on 23rd November, 1954 from the decree of the Court of Muhammad Ayub Khan, Civil judge, 1st Class, Rawalpindi, dated the 7th November 1950.
S. 80‑Substantial compliance enough‑Literal construction leading to absurdity to be avoided‑Notice need not set out that Railway Administra tion has been served with notice under S. 77, Railways Act (IX of 1890)‑Notice based on non‑delivery of goods, plaint based on loss‑Discrepancy would not render suit liable to dismissal‑S. 80 C. P. C. and S. 15 (2), Limitation Act‑New for classification in case of several successors‑in‑interest having to serve notices under S. 80.
Notices of action under section 80, C. P. C. should not be regarded like plaints and substantial compliance should be regarded as sufficient.
Literal interpretation of section leading to absurdity should be avoided.
For instance it would be immaterial if the Railway Station at which goods were delivered for despatch is described in notice as Karachi instead of Karachi Bunder if the original Railway receipt had been received by the defendant from the plaintiff.
Notice under section 77 Railways Act is not a part of cause of action but only a preliminary to the institution of the suit ; notice under section 80 C. P. C. therefore need not set out that requirement of section 77 has been complied 1with inasmuch as there is no bar to the giving of notice under section 80 before the filing of a claim under section 77.
Where the notice under section 80 was based on non delivery of goods and the plaint as drafted was grounded on loss, the discrepancy did not render the suit liable to dismissal. The admission as to loss was only gratuitous, which had only relieved the defendant of a burden and by which the defendant had not in any way been prejudiced.
Reading section 80 C. P. C. and section 15 (2), Limitation Act together, it becomes clear in case of several successors in‑interest having to serve notices under section 80, that either it should be clarified in section 80 C. P. C. that it does not bar a suit by the successor‑in‑interest of a person who has already served a notice, or section 15 (2) of the Limitation Act should be so amended as to exclude the period of all notices served by predecessors‑in‑interest of the person suing. The former appears to be the proper step to take (obiter).
[Case‑law referred to] .
S. 72 (1)‑Plea of loss without plea of negligence‑Whether amounts to plaint not disclosing any cause of action.
In the absence of an express plea of negligence or want of care on the part of the Railway resulting in loss of goods, it maybe that the words used with reference to loss may be capable of an interpretation that the plaintiff is placing the responsibility of loss on the defendant though no express words imputing want of care are used, e.g., "the defendant has lost the goods in transit." In such a case it could not be said that the plaint did not disclose a cause of action.
S. 75‑Onus on Railway to prove that articles were of special value ‑Evidence Act (I of 1872), S. 106‑When shifts onus‑Artificial silk not silk within meaning of Schedule 2, Railways Act.
The onus of proving the non‑existence of circumstances bringing the case under section 75 cannot be placed on the plaintiff.
To hold that onus of disproof of applicability of section 75 is upon the plaintiff would mean that the Court should assume the existence of scheduled articles of the value of Rs. 100 in every consignment till the contrary is established.
The onus will be shifted by the application of section 106 of the Evidence Act if the article, the existence of which is in dispute, is of a kind that the consignor can be said to have special knowledge of it.
In this case the objection was that parachute cloth contains an element of silk sufficient to attract the provisions of section 75 Railways Act. Held, that that is not a matter of which the plaintiff: can be said to have special knowledge and that in this case onus did not shift under section 106.
Artificial silk is not silk as mentioned in Schedule Second to the Railways Act.
[Case‑law referred to]
Common carriers‑History of law relating to, in. British India.
Onus‑Every onus involves an opposite presumption in the absence of proof discharging such onus.
An onus has always a relation to a presumption. When ever we say the onus of proving a particular fact is on a party, it is tantamount to saying that in the absence of proof of that fact, k Court will presume in the proceedings before it, the non‑existence of that fact. It is without any meaning to say that the onus of proof of fact is on a party, unless the Court is to assume the non‑existence of that fact in the absence of proof.
Ss. 72 and 76‑Loss Negligence of Railway‑Burden of proof‑Railway to prove what they did to discharge their liability as bailee‑Plaintiff to prove negligence‑Nature of evidence indicated.
The existing state of the law in relation to burden of proof of negligence as regards cases of loss of goods by Railway is confusing.
The issue consists of two parts: (a) What did the railway do in order to discharge its liability as a bailee
Does the conduct of the railway amount to want of due care
The Court will first determine what the railway did. The Court will then consider whether its acts did not amount to due care.
Everything that the bailee did for taking care of the property entrusted to him is within his special knowledge and the onus of proving it is on him and the presumption in the absence of such proof is that he did nothing in relation to it or in other words took no care.
Onus to prove negligence is on plaintiff who may prove the same by circumstantial evidence. In some cases loss is prima facie negligence.
Nature of evidence as regards onus on Railway indicated.
[Case‑law referred to]
S. 72‑Theft by Railway's own servants‑Railway not absolved.
The liability of a railway as carrier cannot be less in case of criminal acts of its servants than in the case of negligence.
A master is liable in tort for all kinds of wrongs committed by his servant, whether they may be criminal or not if they are performed in the course of the employment.
It could only be with the collusion of the very servants whose duty it was to protect the goods that the goods were either stolen or misappropriated.
If the servants whose duty it is to take care of the goods misappropriate them instead of taking care of them, it can very well be said that this is the performance of their duty in an unauthorised manner and that the act is within the course of their employment.
There is all the more reason for fixing liability of the Railway for loss of goods through theft committed by their own servants because action here is founded on a contract.
The liability in the case of a Railway is determined by sections 151 and 152 of the Contract Act.
The responsibility of the bailee cannot be the mere employment of men for the purpose of taking care. It is the responsibility of care itself. If care is not taken of the goods he is liable. It makes no difference whether he personally takes care or employs others to do it.
When theft, whether by a servant or by a stranger, is due to the negligence of its staff, the railway cannot be absolved of its responsibility.
[Case‑law referred to.]
Syed Ali Shah, for Appellant.
Tasadduque Hussain, for Respondent.
‑This appeal arises out of a suit filed by Ehsan Ilahi respondent against the Federation of Pakistan to recover Rs. 5,630‑9 being the value of five bundles of cloth which were entrusted to the North Western Railway at Karachi Bunder for being carried to Rawalpindi, and were not delivered. The claim has been decreed in full.
The plaint stated that the goods had been delivered to the defendant at Karachi on the 17th of July 1948 but that the defendant had failed to perform its part of the contract and had lost the goods in transit. The defendant admitted receipt of articles but pleaded that :‑
(1) the plaint did not disclose any cause of action,
(2) the notice served under section 80 C. P. C. was not valid,
(3) consignment was booked at owner's risk under risk note A,
(4) loss took place by theft in a running train, and
(5) the consignment contained excepted goods for which no declaration as required by section 75, Railways Act, had been made.
The following issues were framed :‑
1. Whether the plaint does not disclose a cause of action
1(a). Whether the notice served on the defendant by the plaintiff under section 80, C. P. C. is valid
2. Whether the suit consignment did not contain excepted articles
3. Whether the defendant is not liable to pay the damages prayed for by the plaintiff
Issue No. 1 (a) was tried as a preliminary issue and was found in favour of the plaintiff. Under issue No. 1 the learned judge found that the plaintiff had made sufficient allegations for a cause of action. Under issue No. 2 the learned judge found that the consignment was of artificial silk and, therefore, section 75 did not apply. Under issue No. 3 the learned Sub‑Judge found that the defendant failed to make out a prima facie case for being exonerated.
Before us learned counsel for the appellant has argued the following points :‑
(1) Notice under section 80 C. P. C. was not valid.
(2) Plaint discloses no cause of action.
(3) Section 75 protects the defendant.
(4) Want of care on the part of the railway is not proved.
(5) Value of the goods in dispute is not proved.
I will deal with these points in order.
Following is the notice given by the plaintiff under section 80 C. P. C.
"From
Ch. Feroze‑ud‑Din, B.A., LL.B.,
Advocate, Rawalpindi.
To
The General Manager,
N. W. Railway, Lahore.
Notice under section 80 C. P. C.
As instructed by my client Ehsan Ilahi son of Ahmad Din, Bazar Kalan, Rawalpindi, I serve you with the following notice :‑
(1) That Ehsan Ilahi purchased by invoice dated the 12th July 1948 from Karachi five bundles of Artificial Silk Parachute for Rs. 5,630‑9 to be brought to Rawalpindi for sale.
(2) That the five bundles mentioned above were booked from Karachi to Rawalpindi on the 13th July 1948, vide R/R No. 277582.
(3) That the same has not reached Rawalpindi, and Ehsan Ilahi in spite of several attempts failed to take delivery of the same.
(4) That the claim was put before Railway authority, but in spite of many reminders the client was not favoured with any reply.
(5) That the Railway authority is legally and morally bound to deliver the goods or its price viz., Rs. 5,630‑9.
(6) That if the goods or the said amount is not paid within two months from the service of their notice, my client will be obliged to file suit proceedings for recovery of the same and you will also be responsible for the costs incurred by the client.
Yours faithfully,
Rawalpindi.
The 28th January, 1949.(Sd) Feroze‑ud‑Din
Advocate."
The objections to the notice are :‑
(a) It mentions Karachi as the station from which goods were despatched. Karachi is not the name of any railway station. The names of Karachi's railway stations are Karachi City, Karachi Bunder etc. This consignment was sent from Karachi Bunder.
(b) The notice does not mention that a claim under section 77 of the Railways Act had been submitted within six months. The making of a claim under section 77 is a part of the cause of action. The notice should have stated that the claim under section 77 was made within six months.
(c) The cause of action on which notice is based is non delivery while the suit is based on loss of goods.
As regards (a) it is to be noted that the defendant hadl received the original invoice and railway receipt relating to this consignment on 20th of October 1948. This fact is stated in para. 3 of the plaint and has been admitted in para. 3 of the written statement. It is clear that the defendant knew very well that the goods had been sent from Karachi Bunder. It is also note worthy that in para 3 of the preliminary objections defendant itself refers to the station from which goods were despatched as Karachi' and not 'Karachi Bunder'. In fact it is not the position of learned counsel for the appellant that the defendant was in any way misled. He says section 80 is to be strictly complied with as held by their Lordships of the Privy Council in Bagchand Dagduse Gujrathi and others v. Secretary of State for India (A I R 1927 P C 176.) and Government of the Province of Bombay v. Pestonji Ardeshir Wadia and others (AIR1949PC143=PLD1949PC31.). By strict compliance according to him, is meant literal compliance. Even if there be some slight clerical error in the notice, for instance if the number of the house men tioned in the address of the plaintiff be incorrectly given, the notice would be invalid.
The position taken up by the learned counsel for the appellant, and which position he is forced to take up because of the arguments he is putting forward, can only illustrate the surety to which the rule as to literal construction will lead. We ought to avoid such an interpretation. I do not consider any further consideration of this objection essential and I will discuss the requirements of a valid notice when dealing with the second and third objections.
The second objection is of a kind similar to the first. It is not the case for the defendant that as the date on which the claim had been put in was not mentioned, it was in any way misled. The claim was already with the defendant and there could be no difficulty in finding out the date. It may also be mentioned that notice under section 80 was itself delivered only six months and fifteen days after the date when goods were despatched. No objection has been taken in the suit itself that the claim under section 77 was not put in within six months. The objection is purely technical. Learned counsel says as notice under section 77 is a part of the cause of action, the date of such notice ought to have been mentioned and the notice under section 80 is invalid without any regard to the question whether the defendant knew of such date.
It is in the first place, not correct that a notice under section 77 is a part of the cause of action. The fact that non compliance with a particular procedure makes the result defective does not mean that compliance with that procedure is a part of the cause of action. A cause of action must exist before a notice under section 77 is given, for unless a person has a cause of action he would have no right to give a notice. That it is not a part of the cause of action should be apparent from the fact that notices of action can be waived. Even a notice under section 80 C. P. C. can be waived as held by their Lordships of the Privy Council in Dwarka Nath Pai Mohan, Chaudhut a and another v. Rivers Steam Navigation Co. Ltd. (A I R 1917 P C 173.). Can a cause of action, be waived If a claim under section 77 is part of the cause of action, a notice under section 80 would also on the same reasoning be a part of the cause of action, but section 80 requires that cause of action be stated in the notice. Suppose a leave is granted to a plaintiff to withdraw a suit and to file a fresh suit on the same cause of action but the institution of the fresh suit is much conditional on his depositing a certain sum as costs, is the deposit of costs a part of the cause of action If a suit is to be filed against a receiver or a liquidator, leave of Court is essential. Is the leave of Court a part of the cause of action A good many other examples can be cited for showing that procedural preliminaries are not parts of cause of action. A cause of action is the actual or apprehended infringement of a right.
The machinery of justice exists for the enforcement of rights. For the enforcement of rights a procedure has to be provided by complying with which the right can be enforced. But the procedure assumes an already existing cause of action and does not form part of it. Notice of suit, payment of Court fees, deposit of costs, presentation of plaint, payment of process fee, printing fees etc., are all requirements of procedure. The mere fact that some of them are antecedent to and a condition precedent for, the institution of a plaint would not make them parts of causes of action.
I may also point out that under Article 120 of the Limitation Act, time runs from the date of cause of action. Suppose this Article was applicable to a suit against the Government or to a suit governed by section 77, would limitation run from the date when a notice under section 77 or under section 80 C. P. C. was given I find no difference in this respect between section 80 C. P. C. and section 77, Railways Act.
There is another way of looking at the matter and this will by itself demonstrate that a notice under section 77 is not a part of the cause of action. Suppose a notice under section 80 was served within six months when as yet a notice under section 77 had not been given, would the notice under section 80 be invalid because a notice under section 77 had not as yet been given Section 77 makes it incumbent upon plaintiff to give notice of suit within six months but it nowhere provides that a notice under section 80 cannot be given unless a claim has already been made under section 77. There is no bar to the giving of notice under section 80 before' the filing of a claim under section 77. In fact in some case notice under section 80 has, when it was served within six months of delivery of goods, been considered as sufficient compliance with section 77.
There is another question one might ask. Is a notice under section 77 a condition precedent to an action at all Suppose the suit is brought soon after the delivery of goods and even comes up for decision within six months, can the suit be dismissed It is not necessary for me to decide the. question, but the argument that the suit itself would serve as a notice is not without force What difference would it make to the defendant, if simultaneously with or one hour before the institution of the suit (within six months) a separate claim under section 77 was also preferred. It is to be observed that section 77 does not provide for the expiry of any time after notice as is the case with a notice under section 80 C. P. C. In respect of a notice under section 80 C. P. C., time is granted to the Government to make up its mind. But in respect of section 77 it cannot be said that that is the object.
Learned counsel for the appellant relies upon Golab Rai Paliram v. Secretary of State for India in Council (I L R (1941) 2 Cal. 160.), where Lord Williams, J. held that the giving of a notice under section 77 was a part of the cause of action. The question in that case was whether a suit could be filed against the Secretary of State in Calcutta. The learned Judges held that he could be so sued, firstly, because the Secretary of State carried on business in Calcutta and, secondly, because the notice under section 77 had been received at Calcutta, notice being part of the cause of action. With all respect I am unable to agree.
The third objection to the notice is that whereas the notice is a claim based on non‑delivery without reference to loss, the plaint is based on loss. Para. 2 of the plaint runs :‑
"That the defendant failed to perform his part of contract having lost the property somewhere in transit. The defen dant according to the contract is liable to compensate the plaintiff for the loss of his goods which according to invoice of the buyer is worth Rs. 5,630‑9."
It will be observed that the loss of goods in transit is admitted in this paragraph. Learned counsel for the appellant concedes that if the plaintiff had simply stated that the goods were not delivered to him without reference to any loss, the suit would be maintainable and would in the present case be in accord with the notice under section 80. The admission in the plaint as‑to the goods having been lost changes, accord ing to him, the nature of the suit and there having been no mention of loss in the notice there is a discrepancy between the notice and the plaint.
I do not think by merely making a gratuitous admission, which the plaintiff need never have made, the suit became liable to dismissal. Had the plaintiff simply stated that goods were delivered to the defendant at Karachi Bunder for being carried to Rawalpindi, but were never handed over to the plaintiff, there would be a plaint before the Court which was not liable to any objection. In that case the defendant would have to allege and prove loss of goods and if he succeeded in doing so the Court would have to decide further whether the loss was due to want of care. The defendant has not in any way suffered on account of the admission made by the plaintiff. The admission has relieved the defendant of a burden and it is not urged, nor can it be reasonably urged that the defendant has in any way been prejudiced. Another reply to this objection is that at the time the notice was given the plaintiff may not have known whether goods were in fact lost. If before filing a suit he comes to know that they have been lost he need not give another notice, for he will set another limitation for the suit from his knowledge of the loss.
Even if I were to find that the notice is not a technical, compliance, I would not decide this point in favour of the appellant. I have already held in Federation of Pakistan. v. Muhammad Iqbal (P L D 1952 Lah. 460), that though the section is to strictly comply with in the same sense that a non‑compliance would entail the dismissal of the suit. In order to determine whether a particular notice satisfied the requirements of law we have to see whether or not it is a substantial compliance and not whether it is a technical compliance. I relied for this pro position on the Privy Council judgment in Union Steamship Co. of New Zealand v. Malbourne Harbour Trust ((1884) A C 365), Halsbury's Laws of England and a number of Indian cases. I will not repeat all that I said there but will add to it and will notice some cases cited in argument. That notices of action should not be regarded like plaints and substantial compliance should be regarded as sufficient is a proposition grounded in reason and backed by too much authority to be lightly discarded. In Jehangir M. Cursetji v. The Secretary of State for India in Council (I L R 27 Bom. 189), a Deputy Commissioner sued the Secretary of State for damages for defamation on account of a resolution of the Government imputing dishonest conduct to the plaintiff. The plaint contained allegations of malice while in the notice under section 80 C. P. C. there was no reference to malice and the validity of the notice was attacked on this ;round. The learned judge said :‑
"The authorities on these points show very clearly that the object of such notices as that required by section 424 of the Civil Procedure Code is to inform Government, or the public officers concerned generally of the nature of the suit which is intended to he filed against them. It has been decided that these notices must not be too strictly or too narrowly construed They must not be construed as if they were pleadings and they need not set out all the details and facts of the case which the plaintiff intends to prove, and that the notice must be considered sufficient if it substantial fulfils its object in informing the parties concerned gener ally of the suit intended to be filed. This proposition of law is borne out by the following cases : Secretary of State v. Perumal Pillai ((1900) 24 Mad. 279), Stokes v. Hill (1901 1 K B 493), Smith anti Co., v. West. Derby Local Board ((1878) 3 C P D 423 at pp. 427 and 428), Parbutti v. Nobin Chunder ((1883) 13 Cal. L R 195), Sabin v. Deburgh ((1809) 2 Camp. 196), Jones v. Bird ((1822) 5 B & Ald. 837‑844) On the whole, therefore, I am of opinion that the notice is sufficient to cover the case as now made by the plaintiff, viz., that including the allegations of malice against officers of Government who were parties to tho issue of the Resolution"
In M. Venkatakrishneer v. Secretary of State and another (A I R 1926 Mad. 408) the notice stated only that the plaintiff was the owner of certain trees and the ground beneath them, and would sue for a declaration of his right. The suit filed included other consequential reliefs. It was held that there was no surprise to the defendant as regards those reliefs which arose out the declaration of ownership and that the notice was sufficient. In Jones v. Nicholla (153 E R 149) Pollock C B while considering the validity of a similar notice of action had said : " We must import a little commonsense into notices of this kind." The observation has been quoted with approval in a number of Indian cases dealing with section 80. In Jones v. Bird (106 E R 139) a notice stating the cause of action was required under a local Act as a condition precedent to an action against Commissioner of Sewers for Westminister. The notice served upon the Commissioner stated that the plaintiff's house had fallen down on account of the negligent, un skilful and improper manner in which the sewers which ran through, under, or adjoining, ‑or hear the plaintiff's house had been constructed or altered. At the trial it was found that the sewers did not run under, through or close to the plaintiff's house which had fallen in consequence of the fall of the chimney of another house which had damaged. It was objected that the notice was insufficient. Abbot C. J. said :‑
" I think the notice is sufficient, and that it ought not to be construed with great strictness, its object being merely to inform the defendants substantially of the ground of the complaint, but not of the mode or manner inn which the injury has been sustained. That may be, either by their having done an act injurious to the plaintiff, or, as in the present case, by omitting to do an act proper and necessary to be done. It is said that this notice is only applicable to the case of damage arising immediately from the act of the defendants ; but I think it is not material or necessary to specify whether the injure be direct or remote.'
In the same case Best J. said : " It is no ground of non suit that there is a variance between the notice and the proof."
It is not necessary to refer to the facts of numerous other cases which support the proposition that only a substantial compliance is needed. They can be founded in any commentary on the Civil Procedure Code. The present is a stronger case for the defendant than many of those cases. In fact, in view of the pronouncement of their Lordships of the Privy Council in the Union Steamship Company of New Zealand v. Malbourene Harbour Trust which I quoted in Federation of Pakistan v. Muhammad Iqbal, it cannot be urged that such notices should be regarded with extreme strictness " or like pleading.
Learned counsel for the appellant relies in the first place on Hiralal Sahu and others v. Lachhmi Prasad Narain Singh where their Lordships had said that the section was to be strictly complied with. Their Lordships were dealing with the question whether in a suit for injunction a notice was necessary at all and were not dealing with the sufficiency of a particular notice. In K. Ramaswami Naicher and others v. Secretary of State, (A I R 1933 Mad. 105) the learned Judge did not feel hampered by this decision of their Lordships of the Privy Council in deciding whether the notice before him fulfilled the requirements of the law. The learned judge said :‑
"I consider myself at liberty notwithstanding the words imputed to their Lordships to determine the question in the light of decisions germane to the subject. There are several of them, but it is sufficient to refer to decisions of our own Court such as Secretary of State v. Perumal Pillai ((1901) 24 Mad. 279) and Venkarta Ramakrishna Ayyar v. Secretary of State (A I R 1926 Mad. 408). The substance of it all is that in determining whether a particular document satisfied the requisites of section 80 we are not bound to abdndon all common sense, but on the contrary we must look at the document and understand it in a fair and reasonable sense in the way in which the writer meant and the addressee under stood it."
The nest case relied upon by the learned counsel for appellant is Government of the Province of Bombay v. Pestonji Ardeshire Wadia and others. In that case two trustees of the Wadia Trust had given notice of an intention to file a suit against the Government. Subsequently one of the trustees died and two other trustees were appointed in his place. Without any further notice under section 80 the three trustees filed a suit. It was objected on behalf of the defendants that the suit was not maintainable as there was no notice on behalf of two of the plaintiffs. The High Court gave effect to this objection and dismissed the suit. It was not contended and could not have been contended that all the plaintiffs in a suit need not give a notice. All that was argued was that the suit was in, fact on behalf of the trust and the same argument was repeated before their Lordships of the Privy Council. The learned judges of the High Court had rejected this con tention saying that there was no rule of law by which a trust could be made a plaintiff. Their Lordships of the Privy Council who were dealing with this contention said after referring to the observation of the learned Judges of the High Court :‑
"Their Lordships fully concur with the above view. The provisions of section 80 of the Code 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. In the present case it is not contended that any notice on behalf of plaintiffs 2 and 3 was served on the Government before the filing of the suit. Their Lordships have not been shown any provision in the Code enabling the trustees to sue in the name of the trust. For these reasons the suit against the Government must be held to be incompetent and the appeal fails."
From the proposition that a notice is necessary on behalf of every plaintiff it does not necessarily follow that while construing a particular notice we should not "import a little common sense into notice of this kind". Really the proposi tion that a notice as required for every plaintiff is not disputable and was not disputed by the plaintiff in Government of the Province of Bombay v. Pestonji Ardeshir Wadia and others. We have to distinguish between two kinds of cases, one concerned with the necessity of a notice‑ and the other concerned with whether a particular notice sufficiently states the cause of action. If we read the two Privy. Council judgments i.e, Government of the Province of Bombay v. Pestonji Ardeshir Wadia and others and the Union Steamship Co., of New Zealand v. Malbourne Harbour Trust, side by side, that difference will readily appear. While dealing with the question whether a notice is needed or not their Lordships have said that the section is imperative and should be strictly complied with, and while dealing with the question of sufficiency of statements in a notice their Lordships have said
"Some cases have been quoted for the purpose of showing that notices of action are not to be construed with extreme strictness, a rule to which their Lordships subscribe. Cases have been quoted in which notices of action have been upheld which would have been bad upon special demurrer, or perhaps upon general demurrer; but those cases have no bearing on the present, where the notice of action is not, in form or substance, a compliance with the Act".
The two pronouncements are entirely consistent with and complementary to each, other. I' have already quoted K. Ramaswami Naicher and others v. Secretary of State where Pandalai J. felt at liberty to go into the question of sufficiency of the statement of cause of action in the notice in spite of the words of their Lordships in Hiralal Sahu and others v. Lachhmi Prasad Narain Singh saying that section 80 is to be strictly applied.
The next case relied upon by the learned counsel for the appellant is Konnoth Neenakshi Amma v. Province of Madras (A I R 1946 Mad. 73.). In that case a notice had been served for the setting aside of a revenue sale relating to R. S. No. 722/4b but the suit was filed to set aside a sale of R. S. No. 722/4a. The learned judge held that the notice was defective as there was a difference in the subject‑matter. M. Venkata krishneer v. Secretary of State and another was cited before the learned Judge. It was not dissented from but distinguished on the ground that the error committed in the case before the learned judge was substantial. The judgment proceeds on the basis that in order to vitiate a notice the error should be substantial and in that view instead of being an authority for the defendant is a case against him. The learned Judge said
"I do not agree that an error in the description of the subject‑matter of the suit is an insubstantial error. I may also add that there is no evidence in this case that the error was bona fide and due to an accidental slip. There can be no doubt that the particulars required by section 80, Civil Procedure Code, to be set out in the notice should be accurately given. The ruling in 23 M L W 464 which was relied on cannot help the appellant in this case, because the error here is fundamental".
Prasaddas Sen and others v. K. S. Bannerjee (A I R 1931 Cal. 61.), the next case relied upon is also, on a careful reading a case, against the defendant. A suit had, in that case, been filed against a receiver for damage caused by negligence. It was objected that the suit did not lie without a notice under section 80, C. P. C. The plaintiffs relied upon a letter sent to the receiver as a notice. The learned judge who decided the case was clear that the letter was not sent with the intention of serving any notice and was of opinion that at the time the letter was sent the plaintiffs had not made up their minds to bring a suit, The learned judge went however into the question whether the letter could in law constitue a notice and he rejected the letter on the ground that the addresses of the plaintiffs were not mentioned in the letter. The observations of Pollock C. B. in Jones v. Nichollas were quoted before the learned judge and he said he was not departing from that rule. The learned judge was of opinion that "in a case in which it is reasonably clear that the defendant would have no real difficulty in approaching the plaintiff for the purpose of making a tender of amends, or otherwise negotiating with him, it is open to the Court, where a name, or description, or place of residence is given, to take a broad rather than a meticulous view as to the sufficiency of the particulars given under any of these heads". Learned counsel for the appellant cannot cite a single case Indian or English where the state ment of cause of action in a notice was strictly construed. I have no hesitation in holding that the notice is valid in law.
I have to refer once again to Government of the Province of Bombay v. Pestonji Ardeshir Wadia and others while I was studying that judgment it struck me that in respect of suits filed by successors‑in‑interest there is a situation calling for legislative clarification on interference. If Government of the Province of Bombay v. Pestonji Ardeshir Wadia and others means that if a person who has already given a notice under sec tion 80 dies, his successor‑in‑interest must give another notice before he can file a suit. We should at the same time exclude the time of both notices under section 15 (2) of the Limitation Act, otherwise limitation for the suit is improperly curtailed and in some cases limitation may expire without there being at any time an opportunity for a suit. An example will explain what I mean. Suppose a cause of action arises to A for a suit against the Government the limitation for which is six months. The very next day after the cause of action arises A serves a notice under section 80 C. P. C. but five days before the expiry of the period of two months he dies. His sole heir B serves a notice under section 80 C. P. C. but he too dies five days before the expiry of two months. His sole heir C, and after him D similarly give notices and die and ultimately the suit is filed; by E, sole successor. More than nine months have already elapsed in spite of the fact that notices have been given in quick succession. If under section 15 (2) only one period of two months is to be excluded from limitation the suit has become time‑barred although during the whole of the period there has been a virtual suspension of the right of suit. I have taken an extreme case in order to illustrate my point. To take an ordinary case. A serves a notice of suit five days before expiry of limitation which is six years, but dies two days before the period of two months elapsed. If a fresh notice by the successor is necessary the suit will be barred unless the period of both notices be excluded in computing limitation. But it will not be easy to argue that section 15 (2) of the Limitation Act provides more than one period of notice. It runs :‑
"15 (2) In computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded".
It can reasonably be urged that it is only the period of notice of the suit as filed that can be excluded and that is only the last notice, The previous notice, in accordance with Government of the Province of Bombay v. Pestonji Ardeshir Wadia and others is not a valid notice of the suit as filed and its period could not be excluded. Also notice under section 80 refers to a particular plaintiff for the address of the plaintiff has to be stated in the notice. It is clear that either it should be clarified in section 80 C. P. C. that it does not bar suit by the successor‑in‑interest of a person who has already served a notice or section 15 (2) of the Limitation Act should G be so amended as to exclude the period of all notices served by predecessor‑in‑interest of the person suing. The former appears to me to be the proper step to take. The plea that the plaint discloses no cause of action has, similarly, no force. The argument put forward is that as the plaintiff has admitted loss but has not imputed negligence to the defendant, there is no cause of action disclosed as the defendant is not liable on account of loss inflicted but only if there is loss by its negligence In the first place it cannot be said that the words, used by the plaintiff are not capable of an interpretation fixing liability for loss on the defendant. The plaintiff says "the defendant has lost the goods in transit". This is capable of an interpretation that the plaintiff is placing the responsibility of loss on the defendant though no express words imputing lack of care are used. It will be observed that Article 30 of the Limitation Act simply says "against a carrier for losing or injuring goods". Losing has been placed in the same category as injuring and involves the idea that it is by some, act of the defendant that the goods have been lost. In any case the parties knew well that they were at issue on the question of negligence. Parties led evidence and the Court presumably after hearing arguments on the point gave a finding that due care had not been proved and on that basis gave a decision. Neither in the trial Court nor in the grounds of appeal to this Court did the defendant urge that the question of want of care had not been properly tried.
On the applicability of section 75, Railways Act, learned counsel for the appellant contends :‑
(a) onus of proving that the consignment did not contain excepted articles of the value of Rs. 100 or upwards should be on the plaintiff,
(b) the plaintiff has failed to prove that the consignment contained artificial silk and not real silk,
(c) artificial silk is also included in silk.
It will be convenient before proceeding to consider this point to quote section 75 of the Railways Act. It runs :‑
"(1) When any articles mentioned in the second schedule are contained in any parcel or package delivered to a railway administration for carriage by railway, and the value of such articles in the parcel or package exceeds (three hundred rupees), the railway administration shall not be responsible for the loss, destruction or deterioration of the parcel or package unless the person sending or delivering the parcel or package to the administration caused its value and contents to be declared or declared them at the time of the delivery of the parcel or package for carriage by railway and, if so required by the administration, paid or engaged to pay a percentage on the value so declared by way of compensa tion for increased risk.
(2) When any parcel or package of which the value has been declared under the subsection (1) has been lost or destroyed or has deteriorated, the compensation recoverable in respect of such loss, destruction or deterioration shall not exceed the value so declared and the burden of proving the value so declared to have been the true value shall, not withstanding anything in the declaration, lie on the person claiming the compensation.
(3) A railway administration may make it a condition of carrying a parcel declared to contain any article mentioned in the second schedule that a railway servant authorised in this behalf has been satisfied by examination or otherwise that the parcel actually contains the articles declared to be therein".
By this section a declaration is required in respect of articles of special value. The object is to give the carrier notice of the value of the article so that he may take greater care and may charge higher rate. This provision was introduced in England by section 17 of the Carriers Act of 1830, and it has been incorporated in our Carriers Act as well as the Railways Act. I am of opinion that the onus of proving the non-existence of circumstances bringing the case under section 75 cannot be placed on the plaintiff. It is not necessary for the plaintiff to allege in the plaint that the goods were not of a description covered by articles mentioned in the Schedule to the Act. The cause of action on which the plaintiff sues is a contract of bailment. He either alleges : "I delivered goods to the defendant at A. He agreed to carry them and deliver them to me at B. He has not delivered the goods", or. "I delivered goods to the defendant at A to be carried and delivered to me at B. He has (by lack of care) lost them in transit". These are all the allegations he need make, for on proof of these allegations, he is, under the Law of Contract, entitled to succeed in the suit. It is not, and need not be, a part of his case that goods were of a particular description. It is the defendant who pleads section 75 as a bar to a claim for damages and it is for the defendant to establish the bar. We have to distinguish between facts that constitute cause of action and those which constitute bars to their enforcement. A cause of action arises when a right is infringed and the Court will enforce the right unless a bar is established. Another way of looking at the matter is that section 75 is in the nature of a penal provision which entails the forfeiture of a right of action or it is in the nature of an exception. It is on those who rely upon penal provisions and exceptions to prove them. To hold that onus of disproof of applicability of section ‑75 is upon the plaintiff would mean that the Courts, should assume the existence of scheduled articles of the value of Rs. 100 in every consignment till the contrary is established.' Such a presumption, apart from the applicability of section 106 Evidence Act, to which I will revert is not permissible.
In London and North Western Railway v. Ashlar ((1920) A C 84.) a question arose under section 1 of the English Carriers Act as to on whom lay onus of proof of the applicability of the Act. The goods were admittedly of the excepted kind and no declaration had been made under section 1 of the Act. But the goods were to be carried partly by land and partly by sea and it is only if they were lost while they were being carried by land that the carrier would be absolved from liability. There was no evidence as to when and where the goods were lost. It was held that the defendant had failed to show that the goods were lost during carriage by land and was, therefore, liable to pay compensation. It is stated in Halsbury Volume IV, page 29, with reference to section 1 of the Carriers Act of 1830 that "the onus of showing the statute applies lies upon the person endeavouring to rely upon it".
It is urged that under section 106, Evidence Act, the contents of a consignment are within the special knowledge of the plaintiff and onus of proving that they contained none of the scheduled articles should be on the consignor. In case of articles which present no difficulty in finding out whether they are within the schedule, it is permissible to rely upon section 106 which will shift onus in such cases. For instance if the question was whether pure and simple gold was con tained in a consignment the consignor would be very well knowing whether gold was contained in it or not and the onus of proving that it did not contain gold may very well be placed on him. The plea however would have to be taken by the defendant and onus being of the proof of a negative will, according to the circumstances be discharged by such evidence as may be available. But it can hardly be argued that the consignor would have special knowledge of the constituents of a particular cloth which he has delivered for carriage. He can be expected to know whether it is boski, or latha or parachute cloth, that is, he would know that a layman or a dealer of his type would know, but he cannot he fixed with knowledge of such ingredients as only an expert could find out. In the present case the plaintiff should know that he has consigned parachute cloth, and even that it is called parachute artificial silk for that is the name by which he purchased it, but of the ingredients of that cloth he need not have the knowledge of an expert.
My conclusion on this point may be thus stated : It is not necessary for the plaintiff to allege in each case in his plaint that the consignment did not contain scheduled articles, it is for the defendant to take the plea ; the initial onus is on the defendant to establish the, plea ; the onus will be shifted by the application of section 106 of the Evidence Act if the article, the existence of which is in dispute, is of a kind that the consignor can be said to have special knowledge of it.
Learned counsel for the appellant relies on two cases for the proposition that the onus of proving that scheduled articles were not contained in the consignment is on the plaintiff. The first case cited is Secretary of State v. Gopalmal Purusotham Das (A I R 1932 Cal. 3.), In that case the learned judges started with the observation that under section 102, Evidence Act, the onus would be on the defendant but for section 106 which is an exception to section 102. The line of reasoning adopted so far is, I respectfully say so, the same as mine. The defendant wants the Court to believe that the consignment contained excepted goods and the onus of proof would be on him but if section 106 applied it would shift onus. It is to be observed that it is only by the application of section 106 that onus was placed on the plaintiff. My objection is that, as I have stated above, section 106 will not apply in all cases, and if a general rule be laid down that the onus of proving the contents of the package shall be on the plaintiff it will apply to cases which are not covered by section 106 and will produce results which may not have been intended. Suppose the question before the Court is whether silk of the value of Rs. 100 was contained in the consignment or not and a piece of cloth is produced before the Court which both parties admit is the kind of cloth that was in the consignment. Both parties led evidence as to whether there is any silk in that cloth but the evidence is unconvincing and the Court can reach no positive conclusion at all, so that the case has to be decided in accordance with onus. If the general rule laid down in the headnote of Secretary of State v. Gopalmal Purusotham Das be accepted as correct, the suit ought to be dismissed because the plaintiff leas failed to prove that the consignment did not contain silk of the value of Rs. 100.
But it is obvious that there is no question of special knowledge involved in the case and there is no occasion for the applica tion of section 106. The cloth in the consignment is before the Court. That the initial onus should be on the plaintiff is accepted by the learned judges when they refer to section 102 and rely upon section 106 as an exception to section 106. When explaining the liability created by section 72 and giving their own version of the section as read with section 75 the learned judges regarded section 75 as proviso to section 72. Provisos are in the nature of exception and the person relying upon them to prove circumstances attracting their application. I have already stated that the absence of the applicability of section 75 is not a part of the action. It is a penal provision or an exception. Considering that the learned judges have only relied upon section 106 I venture to doubt whether they would dismiss the suit in the example I have given.
The learned judges had in Secretary of State v. Gopalmal Purusotham Das dealt with the hardship to the railway if a sealed packet were given to the railway for carriage and the railway was called upon to prove that it contained a scheduled article. But what about the hardship of a person who purchased an article about which he is unable with the best of effort to find out whether it contains a scheduled article. He cannot make a declaration under section 75 that the consignment does contain that article. Under subsection (2) of section 75 if he makes such a declaration a railway officer can examine the consignment to see if it contains the articles mentioned. Should a suit be dismissed only for the reason that the consignor is unable with all effort to find out the contents of the article he is delivering to the railway for carriage Another agreement employed in Secretary of State v. Gopalmal Purusotham Das was that the plaintiff has to prove the nature of the goods in the consignment for proof of value of goods. That is so, but that does not necessarily settle the onus under section 75. The railway may plead that in addition to what is proved there was a scheduled article in the consignment, or the nature of the article may be proved to the extent that its price is ascertainable but ingredients of the article may not be proved. For instance in this case if it is proved that the cloth was of the kind called parachute cloth which is sold in the market at a particular rate, the value may be proved and the question of applicability of section 75 may remain unsolved.
The second case relied upon in this connection is Ghulam Abbas v. Secretary of State for India (A I R 1927 Nag. 328.). There is no dis cussion in this case on the point involved. The basis of the decision is that the contents of the package are in the special knowledge of the plaintiff. I have already dealt with this argument.
In the present case the objection taken on behalf of the defendant is that the consignment contained silk. We have already stated in R. F. A. 19 of 1951 that the words "silk in a manufactured or unmanufactured state" as used in the Second Schedule of the Railways A'ct cover only the actual amount of silk in an article and do not apply to the whole article of which silk is a part. The plaintiff can, under section 106, Evidence Act, be fixed with knowledge of what the cloth he purchased was called in the market and what it was believed to contain. He says it was parachute cloth and it cannot seriously be disputed in the face of evidence on record that it was parachute cloth. It is not the objection of the defendant that it was silk and fraudulently the plaintiff represented it as parachute cloth. The objection is that parachute cloth contains an element of silk sufficient to attract the provisions of section 75 Railways Act. That is not a matter of which the plaintiff can be said to have special knowledge and I would hold that in this case onus is not shifted under section 106.
The plaintiff has led evidence to prove that the cloth in dispute was artificial silk. In the consignment note Ext. D. W. 1/2 the bundles are described as "parachute cloth artificial silk". The plaintiff made his own statement in the witness bog that the consignment was of artificial silk and produced three witnesses. P. W. 2 stated that the cloth was purchased in his presence and it was artificial silk. P. Ws. 1 and 3 are cloth merchants. Both stated that parachute cloth is of two kinds, boski and artificial silk, and that the weight of boski is two seers and four chhatanks per parachute, while that of artificial silk is eight seers and four chhatanks per parachute. As will appear from the beechak Ext. P. 1 the total number of parachutes as in the consignment was 46 while the weight as appears from the forwarding note is 9 maunds and 32 seers. This would show that it was not boski but artificial silk. The witnesses have not been cross‑examined as to whether they were in a position to know the ingredients of the cloth and I would in the circumstances accept the evidence and hold that the cloth was artificial silk. As regards the argument that artificial silk is covered by the words silks mentioned in the Second Schedule, I do not see any reason for differing from what the learned judges held in B. B. & C. I. Railway Co. v. Mr. Abdul Raqib and others (A I R 1934 Lah. 186,). It was held therein that artificial silk is not silk as mentioned in L Schedule Second to the Railways Act. Learned counsel for the appellant says the learned judges who decided B. B. & C. I. Railway Co. v. Mr. Abdul Raqib and others were under the mis‑apprehension that in the schedule the word "silk" is used whereas it is "silks". To my mind that circumstance is not of much consequence. When you add the word artificial' or a similar word to a noun, the object is to show that it is not the object denoted by the noun though it looks like it.
I will now take up next the question whether the defendant has failed in its duty of taking care of the goods. I may point out that this objection does not find any place in the grounds but it has been argued without objection because its absence from ground of appeal was not noticed at the time and I will give my finding on it. For this purpose I will first review the relevant evidence, P. W. 1 is Mehr Ali who was Goods Booking Clerk at Karachi Bunder Railway Station in July 1948. After looking at the record he stated that five bundles of artificial silk were booked on 13th July 1948 for Rawalpindi. The consignment was marked 3076 and was placed in wagon No. 31279. P. W. 2 was Booking Clerk at Karachi Bunder on the relevant date. He states that he had put five bundles marked 3076 in Wagon No. 31279 along with other packages and had riveted and sealed the wagon in the presence of Hasan Din, Special Inspector. The railway has a special staff for cloth and a few other articles and the cloth in dispute was loaded in the presence of that staff. Mr. Hasan Din, Special Inspector, and the Head watchman Mr. A. H. Khan had beer specially summoned for the purpose. Learned counsel for the plaintiff has objected that neither Hasan Din nor A. H. Khan has been produced. P. W. 3 is Ansar Husain who was Train Clerk at Kotri Railway Station in July 1948. According to him the Goods train containing wagon No. 31279 reached Kotri at 11. 14 hours on the 14th July 1948. The guard of the train and the watchman on duty came to him and told him that some wagons including wagon No. 31279 were without seals. He found the seals of off side of wagon No. 31279 broken and in the presence of the guard and the watchman he put kacha seals on the wagon and sent telegrams to railway officials and the police. When cross‑examined he stated that he had not seen whether the rivets were intact or not and that no suspicion had been aroused that any theft had taken place. P. W. 5 is a foot constable who accompained the train as an escort from Karachi to Kotri, He simply states that from Karachi to Kotri nothing had happened. He says he saw wagon No. 31279 at Kotri and found the seal of the off side broken but the rivets were intact. He is quite positive from the condition of the rivets that no theft could have taken place up to that time. P. W. 4 is the goods clerk of Rawalpindi Railway Station. He found the kacha seals of Kotri as well as the seal of Karachi intact on wagon No. 31279 but the goods in dispute were missing. The wagon contained 152 packages whereas it should have contained 161. In cross‑examination he stated that he had not paid any attention to the rivets. He had not done so even when he found the goods missing.
The purport of the evidence is that goods were duly placed in wagon No. 31279 at Karachi Bunder. At Kotri one seal was found broken but the rivets were intact and no theft could have taken place up to that stage. At Kotri kacha seal was put and both the seals were found intact at Rawalpindi. The goods were however missing.
Under the circumstances what exactly happened to the bundles in dispute is a matter of surmise, but one can be reasonably certain that one of the following alternatives has taken place :‑
(a) the bundles in dispute were not put in the goods train at all and were merely shown as having been so placed ;
(b) at some place between Karachi Bunder and Kotri rivets were removed and then very carefully replaced so as to avoid detection ;
(c) at some place between Kotri and Rawalpindi, the kacha seal of Kotri was removed, goods stolen, and then with the help of the person who had the Kotri seal, the same seal was again fixed ;
(d) the goods arrived at Rawalpindi but were misappropria ted. It was wrongly shown that they had not arrived at all.
Learned counsel for the appellant argues that the onus of negligence according to Dwarka Nath v. Rivers Steam Navigation Co. Ltd. (AIR 1917PC173) is on the plaintiff, that the circums tances are insufficient to raise an inference of want of due care, that the case is one of theft by railway servants themselves, and that in such a case the appellant is not liable in damages. He relies as to non‑existence of liability in case of theft on E. 1. Railway Company v. Shewbux Roy (AIR1928Cal.491). There is no doubt that alternatives (a), (c) and (d) are clear cases of misappropria tion or theft by the railway servants and even in the case of alternative (b) the possibility of a theft by an outsider without the active collaboration of Railway servants is too remote to be considered.
Learned counsel for the plaintiff‑respondent contends that we should find in his favour on the question of neg ligence even without going into the question of the effect of theft by railway servants, for even if it be held that such theft does not give a cause of action to the plaintiff proposition which he does not concede‑the question of want of care remains to be decided in spite of the finding of theft by the railway servants as has been recognised in the very case on which learned counsel for the appel lant relies, i.e., I. E. Railway Co. and another v. Shewbux Roy Chanshyamdas. Learned counsel for the respondent urges that the defendant has failed to produce evidence as required by the Privy Council judgment Dwarka Nath Pai Mohan Chaudhri and another v. Rivers Steam Navi gation Co., Ltd. and for that reason the question of want of care should be decided against the appellant. In any case, he argues an inference of negligence should be raised from the circumstances of the case.
Two questions, therefore, have to be decided. The first is : what is the extent and nature of the burden of proof on the parties in such a suit ; and the second is: Is the defendant liable even in case of theft or misappro priation by or with the connivance or collusion of its own servants
It may be conducive to a proper understanding of matters for determination if I refer in brief to the history of the law relating to liabilities of common carriers in British India. The common law of England was applied to common carriers in British India as will appear from The Irrawaddy Flotilla Company v. Bugwandas and continued to be applied subject to statutory modification till the partition of India. According to that law, a carrier is an insurrer of goods and is liable for loss of or damage to goods in all events except when such loss or damage arises solely from an act of God or King's enemies. This obligation is not contractual in its origina and is a duty imposed by the common law on the carrier on account of his exercising a public employment for reward. It is an incident of the contract though it has no basis in contract. In 1854 the first Act relating to carriers was passed in British India. It is Indian Railways Act XVIII of 1854 and relates to Railways only. Section 11 of this Act runs :‑
" The liability of such Railway Company for loss or injury to any articles or goods to be carried by them other than those specially provided for by this Act shall not be deemed or construed to be limited or in any wise affected by any public notice given, or any private con tract made by them ; but such Railway Company shall be answerable for such loss or injury when it shall have been caused by gross negligence or misconduct or the part of their agents or servants ".
In spite of the wording of the section, which may give rise to the impression that the Company is only liable for misconduct or gross negligence, it was held by Peacock C. J., and Macpherson, J. In East India Company v. Jordan (4 B L R O C 97) that the railway company were common carriers and insurer of goods. In 1865 was passed the Carriers Act. It excluded government from the definition of ' carriers ' as used in the Act. The Act did not define the liability of a carrier but assuming an already existing liability limited and regulated it. It made provisions for a declaration of the value of articles of special value. It allowed the carrier to contract out of his liability but not so as to avoid liability for criminal acts of himself and his servants and even as regards negligence he could be absolved only in cases where the declaration required by the Act in respect of articles of special value was not made. It relieved the plaintiff in a suit for damages from proving neglect or misconduct of the carrier or his servants. In 1872 was enacted the Con tract Act. It deals with bailments and in sections 151 and 152 defines the extent of the bailee's liability. The Railways Act IV of 1879 replaced the Railways Act 1854. This new Railways Act provided in section 2 that nothing in the Carriers Act would apply to Railways. Section 10 of the Act runs :‑
"Every agreement purporting to limit the obligation or responsibility imposed on a carrier by Railway by the Indian Contract Act, 1872, sections 151 and 161 in the case of loss, destruction or deterioration of, or damage to, property shall, in so far as it purports to limit such obli gation or responsibility, be void unless :‑
(a) it is in writing signed by, or on behalf of, the person sending or delivering such property, and
(b) is otherwise in a form approved by the Governor- General in Council".
This section, taken by itself, was capable of an inter pretation that the liability of a Railway Company was hence forth the liability of a bailee. In Hukomchand v. Hira Lal (3 Bom. 109) the Bombay High Court held that apart from statutory pro visions in the Railways Act and the Carriers Act the law appli cable to carriers in India was the Contract Act and not the common law of England, A Full Bench of the Calcutta High Court took a contrary view in Moothora Kant Shaw v. The India General Steam Navigation Co. (I L R 10 Cal. 166) The view of the Calcutta High Court was upheld by their Lordships of the Privy Council in The Irrawaddy Plotilla Company v. Bugwandas wherein it was pointed out that the Carriers Act assumed an already existing liability of carriers under some law and that was the common law of England and that this liability was not dealt with by the Contract Act at all. Their Lordships referred to section 10 of the Railways Act IV of 1879 and definitely held that that section did not imply a liability only under the Contract Act. The section could, according to their Lordships, only imply that the liability could not be reduced below that imposed by the Contract Act. Their Lordships said :‑
" But it did negative the application of the common law of England to such carriers. In section 10 it spoke of 'the obligation imposed on a carrier by railway by the Indian Contract Act, 1872'. It did not, however declare that that obligation was to be the measure of the liability of carriers by railway, but only that their liability was not to be reduced below that limit except in a specified manner. It may be that section 10 was so expressed, in view of the decision of the High Court of Bombay, which had been pronounced in the preceding year, and it may be that the Legislature then assumed that decision to be correct. But, however, that may be, the section is much too obscure in meaning to throw any light on the present question ".
The reference is to the same Bombay judgment to which I have already referred. Incidentally, the judgment of their Lordships shows that we are not bound by wrong assump tions of the legislature even though such assumptions are made the basis of the Legislation. Even if the Legislature enacted section 10 of Act IV of 1879, assuming the Bombay judgment to be good law, the law remained as it was.
It was held by the Calcutta High Court in The Irrawaddy Flotilla Company v. Bugwandas (ILR18Cal.620.), that after the passing of the Railways Act IV of 1879 the position of railways as carriers became the same as it was before the Railways Act of 1854, as the Carriers Act was not applicable to the Railways on account of section 2 of the Railways Act, 1879. As a result the liability of the railways was the same as that of common carrier in England, when the present Railways Act IX of 1890 was passed. Section 72 of the Railways Act runs:‑
"(1) The responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall subject to the other provisions of this Act, be that of a bailee under sections 151, 152 and 161 of the Indian Contract Act 1872.
(2)An agreement purporting to limit that responsibility shall, in so far as it purports to effect such limitation, be void, unless it‑
(a) is in writing signed by or on behalf of the person sending or delivering to the railway administration the animals or goods, and
(b) is otherwise in a form approved by the Governor- General in Council.
(3) Nothing in the common law of England or in the Carriers Act, 1865, regarding the responsibility of common carriers with respect to the carriage of animals or goods, shall affect the responsibility as in this section defined of a railway administration".
By this section, the liability of the railway is limited to that of a bailee and there is a provision for its further limita tion by special contract in forms approved by the Governor General.
I will now consider the two questions involved. On the first question the existing state of the law is to a great o extent confusing, The liability of the defendant is, on account, of section 72 of the Railway Act that of a bailee. If you' consult any commentary on the Contract Act, you will find it stated that in a suit by a bailor against the bailee in respect of loss or damage to goods, the onus of proving due care is on the bailee. I will only refer to Pollock and Mulla's Contract Act (p. 495 of 7th Edition). The learned com mentator after stating that burden of proof is on the bailee, goes on to say that the same rule applied to a railway administration. The following cases are cited in support of this proposition :‑
(1) Nanku Ram v. Indian Midland Railway Co. ((1900) All. 361)
(2) Sundar Lal v. Secretary of State. ((1917) 25 Cal. L J 37, 40.),
(3) Hirji Khetsey d Co. v. B. B. & C. I. Rly. Co. ((1915) 39 Bom. 191)
(4) Gauri Mal‑Narain Das. v. Secretary. of State (91 I C 963)
(5) Secretary of State v. Kesho Prasad ((1932) All. L J 788)
(6) Moolji Sicka & Co. v. Bengal Nagpur Rly. Co. (A I R 1932. Cal. 257)
I have gone through the cases and they do support the proposition put forward. Yet the Privy Council case which lays down that in a suit by a bailor against a bailee onus of proof of negligence is on the plaintiff (though material for proof is to be provided by the defendant) is of the year 1917. I am referring to Diva ka Nath Pai Mohan Chaudhri and another v. Rivers Steam Navigation Co. Ltd. The case is just mentioned in the commentaries without being made basis of a rule. Looking to the cases decided after this judgment I find that there are a large number of cases which cast onus of disproving negligence on the railway. The Privy Council case is not referred to in many judgments and even if it is referred to it is not always regarded as laying the full onus on the plaintiff. In Narsinggirji Manufacturing Company v. G. I. P. Railway (A I R 1918 Bom. 26) the case was brought to the notice of the learned judges, yet Scott C. J. simply says without reference to this case :‑
" The first question being answered in the affirmative and against the Railway Co., the question remains whether the defendants have discharged the onus which is upon them, of showing that they took proper care of goods committed to their charge as bailees".
Shah J. the other learned judge referred to the case in the following words :‑
"Mr. Binning for the defendant company has not suggested before us that the lower Court's view as to the onus being on the company is wrong. This view is supported by certain decisions of the Indian High Courts. But it must be considered in the light of the observations of their Lordships of the Privy Council in the recent case of Dwarkanath v. Rivers Steam Navigation Company (A I R 1917 P C 173)"
Secretary of State v. Ramdhan Das (A I R 1934 Cal. 151) is another case where the learned judges referred to Dwarka Nath Pai Mohan Chaudhri and another v. Rivers Steam Navigation Co. Ltd. After referring to that passage in their Lordships' judgment, which lays down that onus of proof of negligence is on the plaintiff, the learned judges said :‑
"It must be admitted that it is not easy to reconcile this decision with other pronouncements of no lesser authorities, to some of which reference has been made above, but the principle enunciated in it is there and must be applied".
Dwarka Nath Pai Mohan Chaudhri and another v. Rivers Steam Navigation Co. Ltd. was not a case under the Railways Act. It was a case of a common carrier and the law relating to the liability of a common carrier would have applied to it, were it not for the fact that the time for delivery of goods had already expired and henceforth the liability of the carrier was that of a simple bailee. As the case related to a bailee and not a railway a distinction between Dwarka Nath Pai Mohan Chaudhri and another v. Rivers Steam Navigation Co. Ltd, and the case of a railway might have been based under section 76 of the Railways Act. The learned judges who decided Secretary of State v. Ramdhan Das Dwarka Das Firm (A I R 1934 Cal. 151) did, as regards burden of proof divide cases into three heads, i.e.
(1) those governed by section 9 of the Carriers Act ;
(2) those governed by sections 151 and 152 of the Contract Act; and
(3) those governed by sections 151 and 152 of the Contract Act as well as by section 76 of the Railways Act.
The learned Judges did not, however, lay down that there was in fact a difference in burden of proof in the second and third classes of cases and regarded section 76 of the Railways Act only as a reiteration of section 106 of the Evidence Act.
In Halsbury the onus of proof in. suits against a bailee is thus stated in para. 1234 of Bailment :‑
"When a chattel intrusted to a custodian is lost, injured or destroyed, the onus of proof is on the custodian to show that the injury did not happen in consequence of his neglect LC use such care and diligence as a prudent or careful man would exercise in relation to his own property" in Story of Bailments, which was published in 1870, it is stated that the onus of proof of negligence is on the bailor. It is further stated that there are some cases to the contrary and the difference of opinion is due to the lack of proper appreciation of the meaning of burden of proof. In some cases, according to the learned commentator the inference of negligence from loss may be raised but not in other cases.
There can be no doubt that in view of Dwarka Nath Pai Mohan Chaudhri and another v. Rivers Steam Navigation Co, Ltd., in an ordinary case of bailor and bailees, the burden of proof or negligence is always on the bailor and we have only to consider what is the effect of their Lordships' finding that section 106 of the Evidence Act does apply and for that reason the material for the inference of negligence is to be supplied by the defendant. I have already dealt with Dwarka Nath Pai Mohan Chaudhri and another v. Rivers Steam Navigation Co. Ltd., in the Federation of Pakistan v. Fazal Karim (R. S. A. No. 105 of 1952=P L D 1954 Lah. 245), and I need not repeat all that I said there. I will only state my conclusions as to the effect of that judg ment and will add some comments. I stated in that case that it is for the railway to prove all that they did for the discharge of their duty as bailees, but that it was for the plaintiff to prove that what the railway did was not due care. I pointed out that the onus of issue as to want of due care was on the plaintiff but that the onus of proof of acts of the railway in relation to the consignment and of circums tances under which the consignment was lost, was on the defendant in view of Dwarka Nath Pai Mohan Chaudhri and another v. Rivers Steam Navigation Co. Ltd., and section 76 of the Railways Act. I suggested that the issue should be split into two following parts in order to comply with the directions of their Lordships :‑‑‑
(a) What did the railwax do in order to discharge its liability as a bailee
(b) Does the conduct of the railway amount to want off due care
The railway has, under the first part of the issue, to prove the steps it took to protect the consignment. It may prove facts by direct or circumstantial evidence and may rely upon presumptions. The Court will first determine what the railway did. The Court will then consider whether its acts did not amount to due care. It may be asked : What is the finding that the Court will record under the first part The true finding would obviously include the whole of what, in the opinion of Court, the railway did, but there is no need to record a formal finding on this part. The issue will be one though consisting of two parts and the Court will first record its finding as to the facts it regards established and without formally enumerating those facts will give a finding on the second part of the issue on the basis of the facts it has held proved.
I stated in Federation of Pakistan v. Fazal Karim that if the defendant does not place on the record the materials from which the plaintiff has to substantiate negligence, it is not merely a question of, the Court drawing a presumption under section 114 though that presumption is no doubt available. The Court hits to go further and hold that the defendant has failed to discharge the onus placed on him. A presump tion under section 114 is merely discretionary while the application of section 106) involves failure to prove a relevant fact, which failure may, by itself and without recourse to a presumption under section 114 result in a judgment against the party. Their Lordships of Privy Council had definitely held that section 106 of the Evidence Act was applicable and that the onus of proving facts of which the defendant has knowledge was on the defendant. An onus has always a relation to a presumption. Whenever we say the onus of proving a particular fact is on a party, it is tantamount to saying that in the absence of proof of that fact, the Court will presume in the proceedings before it, the non‑exsistence of that fact. It is without any meaning to say that the onus of proof of fact is on a party, unless the Court is to assume the non‑existence of that fact in the absence off proof. Now in this case, what are the facts of which the onus is on the defendant and what is the presumption if that onus be not discharged. In my opinion, the only answer to the question is this: everything that the bailee did for taking care of the property entrusted to him is within his special knowledge and the onus of proving it is on him and the presumption in the absence of such proof is that he did nothing in relation to it or in other words took no care. This is the only way in which section 106 can be applied in the present case. Section 106 of the Evidence Act is one which is not quite easy of application in such cases and Rankin J. (as he then was) felt the difficulty of applying section 106 in a case like the present in Dekhari Tea Co, Ltd. v. Assam Bengal Railway Co. Ltd. (A I R 1920 Cal. 758.). He asked the question as to what was to happen if the defendant led no evidence. I have given the answer. The Court wi11 presume that the bailee did nothing at all in relation to the Consign ment.
It may he asked, what is to be done if the defendant led evidence which the Court is not prepared to accept The answer again is not difficult if the composite issue which I have framed is kept in mind, The Court will first determine under the first part of the issue the facts proved by the defendant, i.e., the acts of the defendant in relation to the consignment. I am not excluding proof of facts by presump tions or circumstantial evidence. The defendant may rely upon everything available in proof of a particular fact but the onus of proving his acts is on him and on considering the whole material before it the Court will decide as to what acts by the defendant have been proved. If on account of the unreliability of the evidence no acts can be proved the result would be the same as if no evidence had been led.
Another matter that is to be kept in mind in relation to the proof of negligence is this. Although onus of proof of negligence is on the plaintiff, he may prove negligence by circumstantial evidence and, in certain case though not in all, S may rely upon the presumption of negligence arising from loss. Although it could not be laid down that in every case proof of loss cal: raise a presumption of negligence, it may be so in some cases There is abundent authority in favour of the proposition that is prima facie negligence vide Trustees of the Harbour Madras v. Best & Co. (I L R 22 Mad. 525.), Choutmal Doogur v. The Rivers Stream Navigation Co. (I L R Cal. 786.), Arjun Das Nai Tram Firm v. Secretary of State (A I R 1925 Cal. 737.), Firm Gauri Mal Narain Das v. Secretary of State and another (A I R 1926 Lah. 217) and Ralliaram Dingra v. Governor‑General of India in Council (A I R 1946 Cal. 249) In fact some of the cases which cast onus of proof of due care on the defendant proceed on this principle while I do not agree that loss is per se proof of negligence, I would agree that loss may, in the circumstances of a case, raise a presump tion of negligence. The presumption arises only under section 114 of the Evidence Act and whether it is to be raised or not would obviously depend upon ,the circumstances of each case.
I may now refer to section 76 of the Railways Act. In Dwarka Nath Pai Mohan Chaudhri and another v. Rivers Steam Navigation Co. Ltd., their Lordships of the Privy Council were not dealing with a case under the Railways Act and were simply considering the production of evidence as between a bailor and a bailee. Section 76 of the Railways Act runs :‑
"In any suit against a railway administration for compen sation for loss, destruction or deterioration of animals or goods delivered to a railway administration for carriage by railway, it shall not be necessary for the plaintiff to prove how the loss, destruction or deterioration was caused."
It may be argued that the section simply absolves the Plaintiff from the duty of proving how the loss, destruction or deterioration was caused, and does not in any way cast a duty upon the defendant to prove it. But then what is the effect of the section If the question as to "how the loss or destruction is caused" be relevant, then what is the benefit of the section to the plaintiff There is no law which makes the proof of a manner of loss, destruction or deterioration, a condition precedent to a decree in favour of the plaintiff so that by this section that requirement of law may have been waived. What the plaintiff has to prove is want of care and the only assistance which this section can render to the plaintiff is that the defendant, who has special knowledge of the circumstances in which loss occurred, may provide the plaintiff with the material from which an inference of want of care may be raised. A comparison of this section with section 9 of the Carriers Act will be useful. Section 9 of the Carriers Act No. III of 1865 runs :‑
"In any suit brought against a Common Carrier for the loss, damage, or non‑delivery of goods entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage, or non‑delivery was owing to the negligence, or criminal act of the Carrier, his servants or agents."
The words used "it shall not be necessary etc." occur in both sections. Now it is not the effect of section 9 that the question of misconduct or negligence of servants becomes by means of this section wholly irrelevant in a suit against a carrier for compensation, for carriers are permitted to limit their liability to acts of misconduct or negligence. The section only regulates the burden of proof. There is authority for the proposition that the section regards loss as presumptive proof of negligence vide India General Steam Navigation v. Bhagwan 'Chandra Pai (ILR40Cal.716.) and Rivers Steam Navigation Co. Ltd. v. Bisweswar Kundu (AIR1928Cal.371). The effect of section 76 is similar to that of section 9. Whereas section 9 places burden of proof of negligence on the defendant, section 76 requires the defendant to prove how the loss etc. was caused. Of course, the word how' does not necessarily refer to the exact cause of the loss, which may not be known to the defendant even. It refers only to circumstances under which the loss occurred. The duty of the defendant is only to produce such evidence as is within his power. This section has, in some cases, been regarded as laying down the onus of proof of want of negligence on the railway. In Nanku Ram v. Indian Midland Railway Company (I L R 22 All. 361) the learned judges said :‑
"The passages quoted from the learned judge's judg ment show that he overlooked the important provisions of section 76, which cast, not on the plaintiff, but on the railway company, the burden of establishing the circum stances which, under sections 151 and 152 of the Indian Con tract Act, would exonerate the bailee from liability. It was sufficient for the plaintiff to prove delivery of goods to the railway company and the fact that the goods were destroyed whilst in the custody of the company. Those facts being admitted in this case, it was for the company to establish the circumstances which would entitle them to be relieved from liability. This the defendant company in this case failed to do".
In Sesham Patter v. L. S. Moss (I L R 17 Mad. 445) similarly the learned Judges regarded section 76 as shifting the onus to the defen dant.. They said :‑
"Under section 76 of the former enactment, it is not necessary for the plaintiffs to prove how the loss was caused. Act III of 1865, sections 8 and 9 are declared by section 72 not to affect the responsibility of the Railway Company as defined by the latter section. The plaintiffs must show in the first instance the alleged loss or deficiency, and then the Railway Company will be bound to show that the loss occurred under circumstances which would exempt a bailee from responsibility for it".
I will not go to the extent that section 76 lays the duty of proving want of negligence on the appellant. If this had been the intention, I would expect the section to be in words similar to section 9 of the Carriers Act 1865. In any case, the section does not refer to negligence or want of care but only to the manner of the loss. The word how' is used in the present section but the words in the corresponding section of the Act of 1879 (section 13) were 'the manner of the loss'. I would respectfully agree with what learned judges said in Secretary of State v. Ramdhan Das Dwarka Das Firm that section 76 only recognises the already existing allocation of burden of proof by section 106 of the Evidence Act.
I have now to consider as to whether the plaintiff has succeeded in proving want of care. For this purpose I will proceed in the manner I have indicated above. I will find out what are the facts proved by the defendant. Learned counsel for the plaintiff‑respondent urges that in this case the defen dant has not at all proved that he took any care of the goods. He has not given anv evidence as to how the goods were looked after from the time when they were handed over to the railway at Karachi Bunder. There is no doubt, as I have already stated, that circumstances in this case show a theft or misappropriation by the railway servants, but at present I am considering the question from a different point of view, i. e., whether the defendant took proper care of the consignment. The evidence led, as I have already stated, is only to the following effect: the goods were put in a wagon at Karachi Bunder and were riveted and sealed ; at Kotri it was observed that the seal on the off side was broken, but it was clear to those who saw the rivets that they had not been tempered with and no theft had yet taken place ; kacha seals were put at Kotri and then the clerk at Rawalpindi found the seals intact, but the goods missing. Where is the evidence, assuming that I accept the evidence of booking clerk at Karachi Bunder that the goods were in fact put in a wagon and riveted, that any care was taken of the goods after they were put in a wagon. No person from the Watch and Ward Department has been produced to state that he was accompanying the train in which the goods were loaded and that it was his duty to keep watch in order to protect the train from thieves. Only a policeman has been produced, who says he was on escort for this train up to Katri where the seal was found broken and he says nothing happened up to Kotri, but a policeman is not a person whose special duty it may be to keep a watch over the goods in a goods train. He is just a policeman who will perform his duties in all cases where the duty of police is called for. Every train may be carrying goods worth lacs or rupees. The railway charges a reasonable fare and is expected to make proper arrangements, as far as possible for the protection of the goods from the thieves. It can hardly be said that it would be no part of its duty to direct members of the watch and ward force to keep an eye over the train. There should also have been some evidence that the train was kept under watch at the railway stations where it stopped. Of course, after such a lapse of time we cannot expect railway servants to give evidence as to keeping watch over a particular train when no incident which might be retained in the memory occurred, but there should at least be evidence of some directions which were being obeyed as to the ordinary arrangements of keeping watch over trains on stations. The Watch and Ward man who was accompanying the train might also have given evidence as to the arrangements at the railway stations. But there is no evidence at all as to what precautions the railway takes. There is also no evidence of any checking of seals or rivets at any station between Karachi Bunder and Rawalpindi. There would be a record of these checkings which could be produced. Every Guard who accompanies a train has a journal in which are mentioned all material facts relating to the journey. That journal is not produced. Apart from clerks of Karachi Bunder who are not expected to know anything after the train left Karachi Bunder only two clerks, one from Kotri and the other from Rawalpindi, are produced and both of them say that they did not pay any attention to the rivets. The evidence placed on the record by the defendant is altogether meagre. That the defendant has altogether failed to explain how the loss occurred may in certain circumstances be excusable when it is shown that the defendant did take necessary precautions and that in spite of that a loss occurred but the evidence of what the defendant did ought to be there.
Although the loss of these packages may in fact be due to theft or misappropriation by servants of the railway, it can be said that the railway has not taken proper care. It has not taken precautions which ought to have been taken. One other matter deserves attention. There is nothing at all to show that after the loss was discovered, there was any report made to the police and any enquiry made. It is the duty of a bailee not only to take care of the goods when they are in his possession, but to take ail those steps which a person would take of his own goods when a theft, misappropriation or loss is discovered. A telegram had been sent to the police when the seal was found missing at Kotri but the clerk who sent the telegram has stated that he did not suspect any theft and there was no report of any theft. The telegram itself is on the file and only mentions absence of seal. It was the duty of the railway after the goods were found missing to have reported the matter to the police. In this respect too the defendant was negligent.
I now proceed to discuss the second question i. e. whether a theft by the servants would absolve the railway in this case, The position taken up by the learned counsel for the appellant is that there should be a positive finding of theft or mis appropriation by the railway servents and that in such a case the appellant is absolved from all liabilities. Reliance, as already stated, has been placed on Rivers Steam Navigation Co. Ltd: v. Bisweswar Kundit. In that case it was held that if a cri minal act of a, servant "is an act of his own deliberately done of his own choice and done to effect a purpose of his own" the master is not liable unless the master has by his negligence facilitated the act. Reliance was placed on two English cases, Senderson v. Collins ((1904) 1 K B 628) and Cheshire v. Bailey ((1905) I K B 237). These cases relate to torts and, as I will presently show, suits based on contract stand on a different footing, but I will consider the question whether even in cases of torts a master is not liable for the criminal acts of his servant. The first of the two cases cited was a case of negligence and there is only an observation with respect to burglary. Here is the observa tion :‑
"Burglary is perhaps an extreme instance of something not done under any mandate from the master, but any other act outside the scope of the authority given by him would equally relieve the master. If the servant in doing any act breaks the connection of service between himself and his master, the act done under those circumstances is not that of the master".
It will be observed that the reason for excluding burglary was that it was not regarded as within the scope of authority. We are not concerned in the present case with burglary. The case does not lay down that every criminal act is outside the scope of authority and if it does it is, as I will presently show, opposed to authority. The second case relied upon i. e. Cheshire v. Bailey has by this time become quite well‑known not because it lays down good law but because of its inconsis tency with a later House of Lords case Lloyds v. Grace. Cheshire v. Bailey is no doubt quite similar in some respects to the present case and had the principle laid down in this case been sound it might have had afforded some help to the appellant. In this case the coachman of a hired brougham had driven the coach in collusion with thieves to a place where the goods in the brougham were stolen. The question for decision was whether the master of the coachman was liable The master of the coachman, in the opinion of Collins J., was not liable as the moment the servant intended to commit a criminal act, he became a stranger and his act could not be one in the course of employment. The reason the learned Judge gave for this conclusion will appear from the following quotation:‑
"It is a crime committed by a person who in committing it severed his connection with his master, and became a stranger."
Cheshire v. Bailey has, as pointed by Lindsell in his Law of Torts, been severely criticised. The proposition stated in the case namely, that the moment the servant intends to do an act he becomes a stranger and is, therefore, no longer acting in the course of employment is one which cannot in view of a large number of authorities be supported and is opposed to the judgment of the House of Lords in Lloyds v. Grace, Smith and Co. ((1912) A C 716). That was a case of forgery. A managing clerk of a firm of solicitors had defrauded a customer by getting her signatures on deeds which she did not read and had thereby secured transfers of her property in his favour. It was held that the firm was responsible for the fraud committed by its servant during the course of employment. For the purpose of showing that a master may also be held liable for criminal acts of a ser vant, I will just refer to some standard commentaries and cases. Lindsell in his Law of Torts 1947 Edition states at page 117 :‑
"The mere fact that the act of a servant amounts to a criminal offence will not exonerate the master if it is done in the course of the employment".
Similarly at page 111, we find it stated that there is no sensible distinction between a case of fraud and of any other wrong by a servant. In the following passages at page 113 the learned commentator has fully explained the position :‑
"An act is said to be within the scope of the servant's employment when, although in fact unauthorised, it is so directly incidental to some act or class of acts which the servant was authorised to do that it may be said to be a mode, though no doubt an improper mode, of performing them. For an impropriety or excess on the part of the servant in the course of doing something which was autho rised the master will be responsible; but not for an act wholly unconnected with the class of acts which the servant was authorised to do. In short, as stated above, the master's liability for the unauthorised torts‑of his servant is limited to unauthorised modes of doing authorised acts. As was said by Willes, J. in Barwick v: English Joint Stock Bank ((1867) L R 2 Ex. 259 at p. 266). In .all these cases it may be said that the master has not authorised the acts. It is true he has not authorised the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of his master to place him in'.
In the same way, although a master cannot lawfully com mit a fraud, he may be liable for it when committed by his servant. The ground of this liability is‑not that the servant has any implied authority to commit the fraud, but that the servant has authority to conduct the transaction lawful in itself in the course of which the fraud is committed and that the fraud is merely an improper mode of conducting it. It is on this view that in the opinion of some authorities Cheshire v. Bailey (post p. 117) might have been decided against the coachman's employer".
Salmond in his Law of Torts says at page 110 :‑
"The liability of a master extends to frauds and other wilful wrongs, no less than to negligence and mistake. If his servant does fraudulently what he is employed to do hon estly, the master must answer for the fraud".
Bowstead in his Law of Agency says in Article 103 :‑
"Where the money or property of a third person is received by an agent while acting within the apparent scope of his authority, or is received by the principal, and is mis applied by the agent, in either case, the principal is liable to make good the loss".
In Article 102, Bowstead thus explains the ordinary liability of a master for wrongs committed by his servant:‑
"Where loss or injury is caused to a third person by the wrongful act of an agent who is acting within the course of his employment, the principal is liable jointly and severally with the agent".
Batt in his Law of Master‑Servant thus states Master's liability for acts of the servant at page 271 :‑
"The number of cases illustrating the master's liability for the negligence of his servant in carrying out the duties of his service is legion, and calls for no comment, and his liability extends to every form of tort committed by the servant within the scope of his employment; such as fraud, malicious prosecution, false imprisonment, assault, conspiracy, defama tion, breach of copyright, nuisance, issue of threats, conver sation, as well as negligence."
In Dyer v. Munday (64 L J Q B 448) it was held that it makes no differ ence that the tort is a crime. In Machay v. Commercial Bank of New Burnswick (43 L. J. P. C. 31) fraud of agent was held to be fraud of principal. In Doe on the Demise of the Willis v. Marti (100 English Reports 882) it is held that fraud and misconduct of an agent is to be imputed to his principal. In Sturmy Oui Tam v. Smith (103 E. R. 912) a sheriff was held responsible on account of the act of his bailiff in deliberately allowing a prisoner to escape. In Aitchison v. Page Motors Ltd. (154 L T 128) it was held that a theft by a servant of a laundry does not absolve the launderer. The principle deducable from the abovementioned cases is that a master is liable for all kinds of wrongs committed by his servant, whether they may be criminal or not if they are performed in the course of the employment. As pointed out by Lindsell in the passages quoted above it is the doing of something which was authorised in an unauthorised manner. It is an impropriety or recess in the course of doing something which was authorised. That is the test. Of course it may be possible to argue, in the particular circumstances of a case, from the fact of an act being criminal that it was beyond the scope of the servant's employment, but it is quite obvious that it is not necessarily so. The decided cases leave no doubt as to that. It is also not always easy to determine whether an act is in the course of employment. What we have to decide is: Is the servant doing an authorised act in an authorised manner The distinction will be whether the act done can be said to be made of doing the act allowed or whether it is a new act altogether which is unauthorised‑a distinction which it may not always be easy to discern.
With respect to theft by a servant, there is some useful discussion in Salmond's Law of Torts. The learned commenta tor reaches the conclusion that the master is liable if theft is committed by a servant whose duty it is ‑to take charge of the goods, but the master is not liable if the theft is committed by his servant who is not entrusted with the duty of taking care of the goods. The learned commentator says:‑
"It would appear (unless the general principle of an employer's liability for torts is modified in cases of bailments by the express or implied terms of the contract) that the responsibility of a bailee must depend on whether the ser vant by whom the theft is committed is one to whom the charge or custody of the thing stolen has been intrusted by his master. If such a servant steals the thing intrusted to him, he is acting nevertheless in the coure of his employment he is doing fraudulently what he is employed to do honestly and his employer is liable. But if the theft is committed by a servant to whom the property has not been intrusted, the theft is outside the scope of his employment, and the master is not responsible unless he has been negligent in the selection of the servant or the theft has been induced by his own negligence or by the negligence of some other servant to whom the charge of the property has been committed."
It would be apparent that if we apply the test stated by Salmond, the decision should be in favour of the plaintiff, for in the present case it could only be with the collusion of the very servants whose duty it was to protect the goods that these v goods were either stolen or misappropriated.
That is the position so far as the Law of Torts is concerned and I would accept the statement of law by Salmond and quoted above. If the servants whose duty it is to take care o the goods misappropriate them instead of taking care of them, it can very well be said that this is the performance of their duty in an unauthorised manner and that the act is within the course of their employment. I have already quoted Article 103 of Bowstead's Law of Agency which makes the principal liable in case goods are received by the agent acting within the scope of authority and are misappropriated. The doctrine of the liabi lity of the master for the act of his servant is really, as pointed out by Lindsell at page 111, a principle of the Law of Agency.
I have held that the master would be liable even on account of his liability in tort, but the position of this case is entirely different from a case where the action is founded on tort. In a case based on tort, the cause of action is the wrong itself. The person primarily responsible for the wrong is the servant because he has committed the wrong. The master is, according to authority, only jointly liable on account of the fact that the servant committed the act in the course of employment. The present case is based on a contract between the plaintiff and the defendant and not on any theft or wrong by the servant. The servant is, in the present case, not liable at all, there being no privity of contract between him and the plaintiff. The liability of the defendant springs not from the wrong i. e. the theft or misappropriation by the servant, but on account of the fact that the defendant has failed to take care. The plaintiff: neither alleges nor stands in need of proving that a theft was committed by the servants of the defendant. He bases his claim on failure to take care and the theft can only avail to him in proof of the fact that the person whom the defendant employed did not take care. If under the circumstances, we can say that the defendant is liable for the acts of his servants in not taking proper care, it makes no difference to a plaintiff that not only did they not take proper care but went a step further and misappropriated the goods themselves. He is really not concerned, for the purpose of this case, with that part of the conduct of the servants.
The liability is in this case determined by sections 151 and 152 of the Contract Act and it is on a proper interpretation of those sections that the answer to the question, whether the defendant is liable even in case his servants misappropriate, must depend. The first matter to he determined is the inten tion in the use of the words "the bailee is bound to take as much care of the goods hailed etc." Do the words mean that the bailee is responsible if care is in fact not taken of the goods It might well be argued, at least it is. a way of looking at the matter, that the bailee is only to do all that he would do if the property were his own. What would he do He would employ servants for taking care of the property. He would choose his servants carefully and give them proper directions. But if we are to accept this interpretation, the result would be that by the employment of persons for the taking of care the duty of the bailee would end. That, however, cannot be the law in view of the judgment of their Lordships of the Privy Council in Dwarka Nath Pai Mohan Choudhri and another v. Rivers Steam Navigation Co. Ltd., where their Lordships say that the question for consideration is the conduct of the ser vants of the bailee i. e. whether the servants of bailee show sufficient care, skill and nerve.' It is obvious, therefore, that the responsibility of the bailee cannot be the mere employment of men for the purpose of taking care. It is the responsibility of care itself. If care is not taken of the goods he is liable. It makes no difference whether he personally takes care or employs others to do it. The act of those whom he employs is his act. I have tried to find out whether there can be any interpretation of section 151 which will include negligence by the servants but will exclude the criminal acts of the servants. I am unable to reach any such formula. We can either accept the interpretation that the responsibility of the bailee is of care in fact, in which case, whatever be the reason for the care not being taken, the bailee becomes liable. It may be negligence, malice or a criminal act. Or we can accept the other interpre tation namely that his responsibility was not that of care of the goods in fact but of employing all the agencies for taking care but in that case he would not be liable even for the negligence of his servants if he is not negligent in the choice of servants and in giving them proper directions.
There are good reasons, in public policy for holding a bailee liable for the acts of his servants. If the law were otherwise the bailee may be altogether negligent as to the choice of servants for it would be very difficult to prove that in the choice of servants he was negligent. It is only if the bailee is burdened with the responsibility of care that he can be expected to take sufficient interest in the protection of the goods which are placed in his charge. If his duty ended with the choice of good servants it would be difficult to prove that he was negligent in such choice. In cases of tort too the rule that the liability should fall on bailee is a rule of convenience and justice. As pointed out in Lloyds v. Grace, Smith & Co. at page 727, if the agent is guilty of a deceit and either his master or a stranger is to suffer for the loss, it is better that the person who employs an agent and puts a trust and confidence in the deceiver should be a loser rather than a stranger.
One way of deciding the question of liability of bailee for criminal acts of his servants is to enquire at what stage the duty of bailee ends. Suppose goods are handed over to a carrier for carrying them to another place. The carrier carefully selects a servant and hands over the goods to him for taking them to ' the agreed place. Has the duty of the bailee been discharged when he has placed the goods in the hands of the servant Obviously not, for the servant may be negligent. If the duty is not discharged when the goods are placed in the hands of the servant, is the duty discharged if the next monent the servant hands over the goods to a confederate in crime
In cases of torts there may be reason for holding in a particular case that the crime committed was not in the course of employment. That is the only ground on which a master can be absolved of liability for the acts of his servant. If the duty of a servant of a solicitor be to get documents of transfer signed by the clients, it would be within the course of his employment if he gets signatures on a deed different from that which is represented to the client so that the servant commits forgery and fraud. The forgery and fraud is in the ostensible performance of the servant's duty and the master would be liable. On the other hand, if the same servant were to pick the pocket of a customer by taking advantage of the fact that the client was in his master's office, the master will not be liable, for the act is not in the course of employ ment. But in the case of a contract of bailment, is there any principle on which there be any difference in the master's liability in cases of negligence and misappropriation (or theft). The cause of action is the want of care. Suppose the servant instead of just being negligent deliberately destroys or injures the article on account of a sheer perversion of mind. Why should the master be exonerated If a servant sees the thieves taking away the goods and, on account of mere indolence, fails to take any action to prevent the goods being taken, the master will be liable. Now suppose that when the servant sees the thieves taking away the goods and has a mind to raise an alarm, thief puts a ten rupee note in his hand and the servant refrains from taking action: Can it be said that in case the failure to take action is induced by indolence the master will be liable and in case it is induced by a ten‑rupee note the master would not be liable If such were the case the railway may very well say to its servants, "you can steal the goods, but you are not to be negligent". This law is to be applied to all bailees and as a result of this view the bailee in order to escape liability will merely have to see that his servant decamped with the goods. The onus of proof of negligence is on the bailor and the bailee will always be able to say : there is no necessary inference of negligence of my servants. They may have been dishonest and might either themselves have appropriated the goods or have colluded with others. It would be difficult to exclude the hypothesis of misconduct of servant.
Even if we are to apply the principle underlying the rules as to master's liability as to torts of his servants the case of theft or misappropriation will also entail the master's liability. The rule there is based on whether the act is in the course of employment of the servant. The cause of action in this suit is the failure of bailee to take care of the goods. The act of the servant so far as it is relevant to suits like the present is the failure to take care. This failure is always in the course of employment. I have already referred to Bowstead on Agency. Article 103 according to which a principal is responsible for misappropriation of goods delivered to his agents. I have also referred to Aitchison v. Page Motor Ltd., a case of theft by the servant of a launderer. The present case is covered by the principles of Article 103 and the case cited.
A reference to the Carriers Act, the previous Railways Act and the Risk Notes approved under the present Railways Act will support the argument that the liability of a railway as carrier cannot be less in case of criminal acts of its servants than in the case of negligence. Railways Act I of 1858 referred in section 10 to the neglect or misconduct of the servants of the railway and clearly assumed a liability in both cases. Section 8 of the Carriers Act provides the extent to which a carrier may limit his liability. It runs :‑
"8. Notwithstanding anything hereinbefore contained, every common carrier shall be liable to the owner for loss of or damage to any property delivered to such carrier to be carried where such loss or damage shall have arisen from the criminal act of the carrier or any of his agents or servants and shall also be liable to the owner for loss or damage to any such property other than property to which the provisions of section 3 apply and in respect of which the declaration required by that section has not been made, where such loss or damage has arisen from the negligence of the carrier or any of his agents or servants."
The effect of the section is that so far as ordinary goods are concerned the carrier cannot get rid of liability in cases of either criminal act or negligence of his servants, but in cases where declaration of goods of special value provided in section 3 is not made he is absolved from the consequences of the negligence of his servants but not of their criminal acts. This would show that the legislature takes a more serious view of the responsibility of a carrier as regards the criminal acts of his servants than of his liability for their negligence. Section 7 of the Carriers Act provides that owners of railroads and tramroads constructed under the provisions of Act XXII of 1863 shall be liable only in cases caused by negligence or criminal acts of their agents or servants.
The argument based on the risk notes under the present Railways Act, properly appreciated is a strong one. Section 72 provides that the railway may limit its liability under sec tions 151/1.52 of the Contract Act by entering into contracts approved of by the Governor‑General. The forms of contracts approved of by the Governor‑General and now in use are con tained in risk notes A, B, C, D, E, F, G, Z X and Y. In all these forms, barring C, X and Y which relate to open wagons arid exceptional articles and absolve the railwdy altogether, the liability of the railway is stated as arising either from negligence or misconduct' of its servants or from 'misconduct' of its servants. That the word 'misconduct' would include theft, misappropriation etc., of the railway servants is not a matter open to any doubt in view of Surat Cotton Spinning and Weaving Mills Ltd. v. Secretary of State (A I R 1937 P C 152). There is no reason for supposing that by the use of the special contracts there was any intention to enhance the liability of railway. Two of these forms that is B and D apply to cases where goods are sent at 'special reduced' rates. B relates to ordinary goods and D to dangerous goods like explosives. It cannot be imagined that while the Indian legislature had by the enact ment of section 72 of the Railway Act of 1890 absolved the railway of liability for theft and misappropriation by its servants the executive Government was introducing the same liability at specially reduced rates and even with respect to dangerous goods. The Law Member of the Government of India would probably be responsible for section 72 as. well as for the risk notes. It will be observed that in risk notes A and Z the railway is liable only for misconduct, negligence being excluded. This is in line with the provisions in the Carriers Act, which, as I have already stated, show that the legislature takes a more serious view of the criminal acts of the servants of the carrier than of their negligence In this connection I may refer to the very case which has been cited by the appellant, that. is, E. I. Railway Co. and another v. Shewbux Roy Ghanshyamdas. It was held therein that it could not be the intention to enhance the liability of the railway by means of a risk note. That in case of risk note B the railway is liable if there be a theft by the complicity of its servants is clear from Surat Cotton Spinning and Weaving Mills Ltd. v. Secretary of State to which I have clearly referred. There the railway was held liable because of the inference that the same servants of the company were involved in the theft. If the proposition that liability of the railway is not enhanced by risk note B be correct, obviously the railway would be liable in a case not governed by the risk note. I would hold that the defendant is liable because the loss occurred due to the misconduct of its servants.
The last point urged is that there is no proof of the value of the lost goods. The plaintiff has made a statement in the witness‑box that he purchased the cloth for Rs, 5,630 and he is supported by the beechak. The weight of the cloth is 9 maunds and, 32 seers and Rs. 5,630 would not be an over estimate. There is no rebuttal and the ‑point was not argued in the lower Court. I find the value to be as claimed by the plaintiff,
I would dismiss the appeal. with costs.
--‑Since I agree with the order proposed by my Learned brother in this appeal I need only briefly indicate the reasons which have led me to the conclu sion. It is altogether unnecessary for me to express an opinion on the question whether notice under, section 77 of the Railways Act is a part of the cause of action in a suit against a railway company. Even if it is, the notice given by the plaintiff. in this case under section 80 C. P. C ., is not invalid for that reason. Para 4 of this notice runs ; That the claim was put before the Railway authority, but in spite of many reminders the client was not favoured with any reply'. The absence of reference to section 77 of the Railways Act does not mean that the claim referred to in this paragraph was not under that provision and, therefore, the notice does not substantially comply with the provisions of section 80 C. P. C. nor was it necessary for the plaintiff to have mentioned in the notice that the goods had been lost. Both the notice and the plaint in this suit are based upon the non delivery of the goods. Loss of the goods is only a reason of the non‑delivery.
We are bound by the rule laid down by their Lordships of the Privy Council in Dwarkanath's case regarding onus in relation to the question of negligence in a case like this. Applying‑that principle I have no doubt, upon the evidence produced by both the parties, that in this case negligence on the part of the Railway has been satisfactorily established. There is not the slightest justification to be found in the proved facts of this case for the contention that the loss was due to theft by some servant of the Railway. Even if that fact had been established it could not help the appellant in this case in view of the proved negligence on the part of the railway. When theft, whether by a servant or by a stranger, is due to the negligence of its staff concerned, the railway cannot be absolved of its responsibility. Therefore, it is not necessary to decide the abstract contention that in case of a theft by its employee no liability attaches to the railway.
I agree that the appeal should be dismissed with costs.
A. H. Appeal dismissed.
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