1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the former High Court of West Pakistan. Karachi Bench, in Second Appeal No. 206 of 1963, dated the 6th March 1968. By this judgment, the Second Appeal was accepted and the judgments and decree of the First Appellate Court and the trial Court were set aside. As a result of this, the suit was dismissed with no order as to costs.
2. The appellant is the wife of Syed Hashim Raza, C. S. P. (Rtd.) who, while on Government duty in January 1959, was transferred from Hyderabad to Lahore as Chief Settlement Commissioner. At the time of his transfer, the appellant left some luggage at Hyderabad with her daughter, who was then studying there and the appellant left for Karachi. On the 23rd January 1959, the appellant was travelling from Karachi to Lahore by Tezgam train to join her husband. On the previous day, she contacted her daughter on telephone at Hyderabad asking her to send the remaining luggage at Kotri Railway Station for booking to Lahore. Accordingly, one Syed Taqi-ul---Hassan P. Ws. 5, the appellant's cousin's son and the then P. A. (Rehabilitation) to the Deputy Commissioner, Hyderabad booked 7 parcels/packages frown Kotri to Lahore. Out of 7 packages, lour packages were kept by the appellant in her compartment and 3 packages which were trunks containing household silken clothes and silver articles, were left by the Railway authorities in the luggage van/brake-van, attached in front of the compartment of Mr. Hamidul Zafar, the Guard Incharge of the train. It is alleged that the said Taqi-ul-Hassan, who knew the contents and value of the packages, booked the luggage and declared their contents and value and gave their list to the Railway parcel clerk, who loaded the luggage. Along with the list, he also attached a forwarding note and a risk note in Form 'A'. The goods were booked under Railway Receipt No. 8322 dated the 23rd January 1959.
3. When the Tezgam reached Rohri Station in the night, the Guard informed the appellant that her trunks in the brake-van were missing. She went to the brake-van and found that her two trunks were missing and the articles of the third trunk were removed. The appellant lodged the complaint with the Railway Police Station, Rohri asking them to investigate the case.
4. After reaching Lahore, she prepared s list of missing articles, Exh. 33 filed a claim with the Railway for Rs. 25,000. The Railway Police, Sukkur, arrested some Railway employees and recovered some of the missing articles from them. The Railway Police challaned four railway employees, 3 porters and one Gangman, In the Court of Sub-Judge and First Class Magistrate, Rohri, under sections 379, 411 and 409, P. P. C. In Criminal Co LA No. 69 of 1959. The accused were convicted and the learned Sub- Judge, Rohri, by judgment dated the 7th December 1959, held that the theft of the articles was committed due to gross negligence of the Guard, who did not take care of the brake-van and did not perform his duty properly. Tile Magistrate also directed the railway police to return to the appellant at Lahore the articles, which were recovered by them after about one month from underground and in a disused well. The appellant accepted the returned articles anti had fixed their vale at Rs. 9,000 and amended her original claim of Rs. 25,000 thus reducing it to Rs. 16,000.
5. On the 13th November 1959, the appellant served a notice on the Railway under section 80, C. P. C.
6. By registered post for payment of Rs. 16,000 as compensation for the loss, destruction and deterioration of her articles. The Railway authorities did not pay heed to it. Consequently, la January 1960, the appellant filed in the Court of Sub-Judge, First Class. Sukkur Suit No. 4 of 1960, against the Railway for recovery of Rs. 16,000 as compensation for the loss and deterioration of her articles. The suit was contested by the Railway. The Railway, in its statement, raised a preliminary objection to the jurisdiction of Sukkur Court and also raised objection that section 75 of the Railways Act of 1890 was a bar to the suit. The appellant produced and examined both oral and documentary evidences, in support of her case and closed her case on the 16th June 1960. The suit was adjourned to 13th July 1960 for the production and examination of the Railway evidence. On the 13th July 1960, the Railway's Advocate was absent. No evidence was produced on behalf of Railway.
7. Ex parte proceedings were taken against the Railway and the suit was adjourned to 18th July 1960 for judgment. The learned trial Court, by judgment dated the 18th July 1960, passed under Order XVII, rule 3, C. P. C., accepted the appellant---s claim and decreed her suit for Rs. 16,000.
8. The Railway challenged this order in First Appeal No, 125 of 1960, which was dismissed on the 15th May 1963, with costs. In September 1963, the Railway filed Second Appeal No. 206 of 1963, in the then High Court of West Pakistan, Karachi Bench, Karachi. A Division Bench of the High Court, by judgment and decree dated the 6th March 1968, accepted the Second Appeal, sea aside the judgment and decrees of the First Appellate Court and the trial Court and dismissed the suit with no order as to costs. The appellant challenged this judgment in June 1968, in Civil Petition for Special Leave to Appeal No. K-90 of 1968 and leave was granted to tie appellant to consider the interpretation placed by the High Court on section 75 of the Railways Act and to consider further whether in the circum--stances of the case, it was the duty of the Railway authorities to prove that the goods lost were "excepted goods" within that section.
9. It is not disputed before us that in this case not only care seas not taken but on the contrary the guard incharge of the luggage van was negligent. In these circumstances, it was for the bailee to show first that he took proper care of the goods bailed to him and than it is for the consignor or the consignee of goods to prove that the negligence was committed by the Railway. The finding of the Courts below is that "in this case instead of disclosing what care was taken by the Railway, it is on the contrary shown that their servants were much too negligent, which resulted in the loss by theft of the articles."
10. The only question for consideration In this case is whether the articles contained in the trunks which wore stolen, were excepted articles covered by the Second Schedule of tine Railway Act and whether the case was hit by section 75 of the Railway Act. Section 75 of the Railways Act reads as under :- ---Section 75 (1). --When any articles mentioned in the Second Schedule axe 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 persons sending or delivering the parcel or package to the administration caused its value and contents to be declared in writing or declared them In writing 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 in writing a percentage on the value so declared by way of compensation for increased risk.
(2) When any parcel or package of which the value had been declared under 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.
(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."
11. Mr. S. A. Nusrat, learned counsel for the appellant, has contended that it was for the Railway authorities to prove that the articles contained in the packages which were stolen from the luggage van were "excepted articles" as provided by Second Schedule of the Railways Act. He has relied on Federation of Pakistan v. Ehsan Elahi PLD 1955 Lah. 303, in support of this contention. In this case, Kaikaus, J. Has observed as under:- "The cause of action on which the 'plaintiff sues is a contract of bailment---------------..
12. 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 under section 75 as a bar to a claim for damages and it is for the defendant to establish the bar------------------------------------------.
13. 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 the 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. Such a presumption apart from the applicability of section 106, Evidence Act, to which I will revert is not permissible."
14. No authority was cited against the principles laid in the above-mentioned decision. We agree with the view enunciated in the above decision and hold that the onus of the proof of application of section 75 is upon the Railway and It is for the Railway to establish that the goods are "excepted goods" and the value of the goods is more than Rs. 300 in each consignment.
15. Mr. Said A. Shaikh, learned counsel for the respondent, has referred us to the list filed along with the plaint and to the statement of the appellant to show that the goods were excepted goods and they were of the value of more than Rs. 300 in each consignment. This aspect of the case was considered by the District Judge, Sukkur, in Civil Appeal No. 40 of 1962. In this connection, he observed as under :- "In this case it is correct to say that the list of articles given by the plaintiff respondent described some articles as silk clothes or articles of silver, yet it is for the defendant-appellant to prove that the articles were of silk and silver as provided by the 2nd Schedule to the Railways Act. A person may call a material in a loose language as silk which may not in fact be silk and similarly silver which would satisfy the 2nd Schedule to the Act. It is, therefore, always for the Railway to prove that the articles are excepted articles, because it is the Railway that relies on the provisions of section 75 of the Railways Act."
16. The observation of the learned District Judge appears to us to be well founded. In the present case also, the appellant has called the articles in dispute as silver articles and clothes as silk clothes.
17. This description has been used loosely. It should have been proved whether these goods were of silk and silver. No such proof was adduced by the Railway and, therefore, the learned District Judge was perfectly justified in holding that they were not excepted goods and there was no proof that their value was more than Rs. 300 in each consignment.
18. Apart from this, there is evidence on the record to show that Mr. Taqi-ul-Hassan P. W. 5, who was aware of the contents of the packages (Exh, 46), booked the luggage and declared their value and gave their list to the parcel clerk who loaded the luggage. In the light of this evidence, it is clear that the declaration required under section 75 of the Railways Act had been made by the appellant. In case, it was not so, it was for the Railway to lead evidence in rebuttal. This was not done. The evidence of the appellant on this point remained un-rebutted and the learned trial Judge was perfectly justified in holding that even if they were excepted goods necessary declaration had been made.
19. After carefully considering the dispute between the parties we are of the view that the decision of the District Judge, Sukkur, its Civil Appeal No. 40 of 1962, is based on good reasons. We, therefore, set aside the order of the High Court, and restore the judgment and order of the First Appellate Court.
20. The result is that the suit is decreed in terms of the trial Court's order. The parties are directed to bear their own costs.