1. CORNELIUS, C. J.--This appeal by special leave arises out of a suit brought by the respondent Muhammad Ali against the General Manager of the Eastern Bengal Railway (now Pakistan Eastern Rail--way) for damages in the sum of Its. 5,000 by reason of non-delivery of a bale of textile goods which Muhammad Ali had on the 24th November 1957 booked by train at Kumarkhali Railway Station for delivery to one Abdul Kawan at Rangpur. The actual cost of the goods was fixed at Rs.
2. 4,713-13-0 and the balance was claimed by way of compensation. It was said that the railway receipt was endorsed for delivery to the plaintiff itself on the 28th November 1957, but the consignment was never received and after repeated enquiry he was informed by the Railway that the bale had been lost. It was averred that "complete lose of the consignment of cloth was due to the sheer wilful negligence and misconduct on the part of the railway". The Railway had accepted the allegation of the non-delivery, but pleaded in defence that "in spite of due care and precaution taken for safe carriage the suit consignment was lost due to running train theft which occurred in circumstances beyond the control of the Railway Administration". The relevant issue was framed in altogether too general terms as below:--- "Is the plaintiff entitled to a decree for the amount claimed in the plaint?"
3. The trial Judge while discussing this issue first referred to section 72 of the Railways Act, laying down that the responsibility of the Railway Administration in the matter of the carriage of goods is that of a bailee and not that of an insurer, so that the duty of care and caution, in respect of the goods carried, which falls on the Railway is no more than that which a prudent person would apply for the protection of his own goods. The following observation in the judgment of the trial Judge would appear to state the law correctly:- "The Railway Administration will be absolved from responsibility if it can satisfactorily explain
(away) by full disclosure of the circumstances how the consignment in transit was dealt with by the Railway."
4. In this respect, he found that full disclosure had in fact been made. The bale in question was shown to have been loaded by Sultan Ahmed, Assistant Station Master, at Kumarkhali along with 36 other bales in wagon No. S. E. 30872, which was sealed "for Parbatipur", meaning probably that it was not to be interfered with for purposes of onward transmission of the goods, until it reached the junction Station of Parbatipur. Documents in proof of this were also produced by A. S. M. Sultan Ahmed. This witness also proved that the wagon in question was attached to train No. 266 Down, and documentary proof of this was furnished by the wagon despatch register signed by the guard of that train named Alimuddin Sarkar. It was suggested to Mr. Sultan Ahmed that the consignment was not loaded in the wagon at all, but he denied it, and the documentation which he produced confirms the truth of that denial. Guard Alimuddin Sarkar, D. W. 2, proved that the wagon was taken intact from Kumar--khali up to Iswa rdi at which place he was relieved by Guard D. A. Siddiqui, D. W.
4. At Iswa rdi the wagon No. S. E. 30872 was also examined by train clerk, Anisur Rahman D. W. 3 who found it "well-sealed and riveted". Guard Siddiqui proved that the wagon in question was attached to train No. 265 up, which he took from Iswardi to Parbatipur. He produced a memo book showing the timings and the composition of the train, and that the wagon in question was sealed and riveted on both sides. Leaving Iswa rdi at 13-00 hours, the train reached Bhowanipur Station at 19-45 hours and left after a very shors halt, during which however, Guard Siddiqui observed the condition of the wagon which was immediately behind his brake van and found that the labels, seals and rivets were intact. The next halt was at Parbatipur, where the train reached at 20-5 hours. Before it had quite stopped, a watch---and-ward man named Korban Ali Khan, D. W. 5, noticed that a door of this wagon was open and immediately brought this to the notice of the Guard, who on checking the contents of the wagon found that there were only 36 bales in the wagon i. e. That one bale was missing. He immediately sent an express message to the Railway Police at Parbatipur, to the Watch and Ward Inspector, to the Claims Inspector at Parbatipur as well as to the Station Master as Kumarkhali, to the Divisional Traffic Superintendent, and even to the Chief Traffic Manager at Chittagong. He also lodged a report at the local Railway Police Station. All this is matter of documentation and a number of these documents were actually produced. Watchman Korban Ali Khan supported the statement of Guard Siddiqui whose evidence was further supported by A. S. I.
5. Jaffar Ali, P. W. 6 of the Watch and Ward who immediately went down the line up to Bhowanipur Station in case the bale might still be lying by the track. It was not found. Further documentation concerning the shortage of one bale in wagon No. S. E. 30872 was proved by the transshipment clerk at Parbatipur, Nizamuddin, P. W. 7 who also communicated the matter to other authorities.
6. Police evidence in the case was given by Constable Inna Khan, D. W. 8, who was present when the contents of the wagon were checked at Parbatipur on the day following the loss, and by S. I. Babu Priya Nath Barman who proved the initial report as well as the report of his investigation.
7. As a matter of interest, the final report showed that suspicion fell on one Pir Muhammad, but none of the stolen property was recovered. The Sub-Inspector, on information received, valued the contents of the lost bale at only Rs. 600.
8. These witnesses were questioned regarding the precautions taken for the safety of the goods in the wagon. A. S. M. Sultan Ahmed said that the wagon was not locked, but it was rivetted, and that the rivetting could not be broken except with a strong hammer. There was sealing as well, which is proved by Guard Alimuddin, train clerk Anisur Rahman and others. When the theft was discovered, it was found that the seals and rivets were intact on one side. There seems no question but that in using. Seals and. Rivets, the Railway officials followed the standard practice in this respect, which in all but a very few cases is found to be effective for the purpose of protection of goods in transit. A.
9. S. M. Sultan Ahmed in cross-examination said that the wagon had no foot-- board. This question was obviously put in order to sustain an argument that in such a wagon, a running train theft was impossible, because there was no place on which the thief could stand while he was dealing with the rivets and the seals. Guard Siddiqui, however said that below the lower flap door, there is an iron plate attached on which a person may climb and thus open and close the upper door. The width of this plate, which is described as the "flap door protector" is about 2-- ". Although there are no handles fitted to these wagons, there are rings and chains and the Guard was clear that it is possible for a person "to catch the rings and chains and get upon the flap door protector even when the train is running". This witness also said that he had seen an instrument, namely, a pliers with which the rivet could be opened very easily. This was with reference to A. S. M. Sultan Ahmed's view that for such a purpose only a heavy hammer would do and that could hardly be used efficiently by a person, clinging to the side of the wagon, particularly when it was in motion. To a question in cross-examination, watchman Korban Ali Khan, who may be presumed to have some knowledge of such things, said "thieves do not require much time to break the rivetting". This witness denied the suggestion that when the wagon arrived at Parbatipur, it was intact, but later when it was found that there was a bundle short, a false report of a running train theft was prepared. This suggestion is further falsified by the documentation in the case including the initial report to the Police which was recorded at 22-00 hours. The time being fairly late at night, and it being clear that the wagon had to be detached at Parbatipur, which is a junction station it is entirely unreasonable to suppose that so soon after the arrival of the train, the regular check of the contents of the wagon was carried out, and on the discovery that a bale was missing afalse report that the wagon had arrived open at Parbat' ur was prepared. In the natural course, had the wagon arrived n sealed condition the check of contents would have taken place on the following day.
10. These matters were considered by the trial Judge in detail, and thereafter he recorded the conclusion that "the Railway Administration took due care of the disputed consignment in transit from Kumarkhali to Parbatipur, when it was being carried in a covered wagon rivetted and sealed and that the disputed bundle must have been lost in between ' Bhowanipur and Parbatipur Stations due to a- running train theft from that wagon in circumstances beyond the normal control of the Railway."
11. The trial Judge further observed that the Railway Administration had "successfully made a full and satisfactory disclosure of all facts how the disputed consignment was dealt with in transit" and the plaintiff had riot been able to establish any negligence or misconduct on the part of the Railway.
12. Accordingly, the suit was dismissed, parties being left to pay their own costs. On appeal, however, this decision was reversed for reasons which will be discussed presently, and when the matter was taken up before the High Court in second appeal, a summary order of dismissal under Order XLI, rule 11, 1C. P. C. Was made by a Division Bench.
13. It may be presumed that the summary dismissal was based on the consideration that the only questions arising in the case were questions of fact, and the findings thereon by the first appellate Court could not in law be disturbed by the High Court. However, there is no such binding rule to operate against the exercise of this Court's jurisdiction in regard to any question arising in a matter before the Court. We have accordingly examined the evidence for the purpose of determining whether the first appellate Court's findings of fact can be sustained.
14. The general conclusion reached by the Additional District Judge appears in the following sentence: "All the D. Ws. Are Railway employees. It is not unlikely that they have made out a case of running train theft just to cover up their negligence and misconduct."
15. He observed that he could not take the evidence of A. S. M. Sultan Ahmed as "gospel truth" and that "it might be that he did not put the suit consignment into the wagon". This conclu--sion can only have been reached by overlooking the ample documentary evidence to support the case for the Railway that the bale in question was actually put into the particular wagon; which was duly attached to the train the same day, and later in the evening when the train arrived at Parbatipur, a door of the wagon was found open, and on a check this particular bale was found missing, whereupon, immediate documentary reports were made of a considerable number of officials including the local Railway Police Officers. A search was actually undertaken along the track between Bhowanipur and Parbatipur showing a genuine belief at the loss occurred while the train was in motion between these two points. It is impossible to imagine that the whole of this evidence was manufactured. The District Judge emphasis the shortness of the run between Bhowanipur and Parbatipur, which took 18 minutes, and found it impossible to believe that this could have been a sufficient interval of time for the thief or thieves to get on to the wagon to open the door and to throw out the bale. He made no mention of the evidence of watchman Korban Ali Khan, who said that such a feat could be accomplished in a very short time. It being the time of the night when the train left Bhowanipur, it is possible to imagine that the thief managed to climb on to the protector plate just as the train ran out of the station, and did not have to jump on to it while it was in motion.
16. With a suitable instrument as was stated by Guard Siddiqui, the breaking of the rivets would be a matter of a few seconds. The Additional District Judge thought it was difficult to throw a bundle weighing 5 maunds and 30 seers out of the wagon. This conclusion obviously fails to take into account the probability that the 37 bales were piled one on top of the other, and it would be a simple matter to push out that one of the upper bales which was nearest to the open door. The Additional District Judge emphasised that there was no foot-board on the wagon, and concluded that a thief would have found nothing on which to stand, but he ignored the evidence of Guard Siddqui, who had said in so many words that a thief could stand on the Rap door protector, and held on the rings and chains while he cut open the door. The Additional District Judge found fault with Guard Alimuddin who took charge of the train at Kumar--khali for not opening the wagon and verifying its contents, when he took charge of the train. That was, however, not the guard's business at all; he was to take over the train as it was delivered to him, and his evidence proves that this wagon was duly sealed and rivetted when he took charge of the train. He also found fault with the Railway Administration for attaching this goods wagon behind the Guard's brake van and not in front. The words he has used are as follows:- "I do not understand why a wagon containing so many bales was behind the guard's brake. In all fairness and in case of care and caution they should have been before the guard's brake. This in another negligence on the part of the Railway Administration."
17. The documentary evidence shows that this wagon was attached at Kumarkhali Station to a train which had come from Goalundo, and in the circumstances, it was hardly conceivable that it should be attached elsewhere than in the rear of the train. It is not an invariable practice that the guard's brake is at the very end of the train, and the idea that a van is better protected if it is in advance of the guard's brake than it is behind seems clearly to be far--fetched. In any case, this wagon was only just behind the guard's van, where he could keep it under observation from time to time as is the practice in running trains, without any difficulty. The Additional District Judge also criticised the use of rivets to secure the doors of the wagon remarking that "such a rivet could automatically give way due to pressure of the goods inside", and that this showed negligence on the part of the Railway Administra--tion. The employment of rivets is standard practice, and in the judgment of the trial Court there was reproduced a long passage from a commentary on the Railways Act to the effect that the use of padlocks is by no means a stronger guarantee of security than the system of sealing and rivetting which is universal on our Railways.
18. Mr. D. C. Bhattacharya for the respondent, Muhammad Ali, attempted to support the reasons given by the District Judge in appeal, but having considered them individually in relation to the evidence, we find each of them to be entirely lacking in force. There is nothing to be found in the evidence to justify the belief in the mind of the Additional District Judge that the bale was never loaded at all in the wagon in question and that it was lost for reasons other than the running train theft which the Railway Administration had proved by all possible oral and documentary evidence. The trial Judge was perfectly right in holding that the Railway Administration had made full and true disclosure of all circumstances relating to the transit of this consignment from the point where it was placed in the wagon in question up to the point where its loss was discovered.
19. Accordingly, we hold that the Railway Administration had proved beyond doubt that it took as much care for the safety of the bale as could reasonably be expected of a bailee, and thereby it had absolved itself from liability for the loss of the bale. We allow this appeal and setting aside the decree of the Additional District Judge, we restore that of the trial Court, and direct at the same time that the parties should bear their own costs throughout.