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Revision Application No. 43 of 1950, decided on 24th August 1959.

Ss. 72, 76 & 80‑Consignment booked in Pakistan for transmission to India‑Loss of goods in India‑‑Consignor proving loss in transit‑Railways under obligation to prove absence of negligence on their part‑Pakistan Railway not proving that Indian Railway was not negligent‑Suit decreed.

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S. M. Sadiq for Applicant. Asif A. Zahidi for Respondent.

Date of hearing: 24th August 1959.

The applicants in revision sued the Federation of Pakistan in the Small Causes Court for non‑delivery of goods delivered to the N. W. Railway for transmission to a destination to India. The N. W. Railway, so the learned Judge found, had transferred to goods to wagons on the Jodhpur Railway at Mirpurkhas and the wagons had been despatched across the border. This finding has not been challenged by Mr. Sadiq and the position, therefore, is that the loss of goods, if it occurred at all, occurred not in Pakistan, but in India.

There had been no issue whether non‑delivery of the goods was proved or not, and hence I had remanded the case to the Small Causes Court for a finding on this issue. That issue has now been found in favour of the applicant, and Mr. Asif Zaidi for the Railway has not attacked that finding.

The applicant, therefore, contends that under section 80, Railways Act, the N. W. Railway is liable. This section, so far as is material, provides‑

"Notwithstanding anything in any agreement purporting to limit the liability of a railway administration with respect to traffic while on the railway of another administration a suit for compensation for loss of . . . . goods where . . . . goods were booked through over the railways of two or more railway administrations, may be brought either against the railway administration to which the goods were delivered by the consignor thereof, . . . . . . or against the railway administration on which railway the loss . . . . . occurred."

It is not disputed that the goods had been booked through over the two Railways. Mr. Zaidi contends that despite this section the responsibility of the railway is merely that of a bailee under the Contract Act, and, therefore, if he proves that on his system no negligence occurred, that is a good defence. This, however, seems to me to make non‑sense of section 80; for otherwise I cannot see any reason why the consignor should be given the right to sue either the railway to whom he delivered the goods or the Railway on whose system the loss occurred, if it is a good defence to prove that loss did not occur.

The point arises whether section 80 should be considered as having extra‑territorial effect. Section 80 at the date when the Act came into force had obviously extra‑territorial effect, for it is common knowledge that in some States there were Railway Administrations belonging to the State and not to British India. Strictly speaking, these States were foreign it is true that they were no so foreign to the suzerain Crown of England as the Union of India is to Pakistan, but I still think that the extra‑territorial construction of section 80 should be adhered to.

The result, therefore, is that the consignor has proved that the goods were not delivered to the consignee, and, therefore, has proved loss of goods. By section 76 he is exempt from proving how the loss was caused. The railway has under section 72 the contractual liability of a bailee and must prove it has not beet negligent in respect of the goods, but the statute requires that the 6 proof must extend to both the Railway Administrations. Pakistan has not proved that no negligence has taken place upon the railway in India.

The suit is, therefore, decreed for Rs. 1,870 with interest at 6% per annum thereon from date of suit till realization within the statutory period. The defendant will pay the costs of the plaintiff throughout.

K. M. A. Petition accepted.

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