1. A. S. CHOWDHURY, J.-This appeal is at the instance of the defendants and directed against the judgment and decree passed by Mr. M. S. Rahman, Subordinate Judge, Dinajpur on the 20th July 1960.
2. Plaintiff's case briefly stated, is that he is a merchant who deals in Jute and is the proprietor of Kamal Jute Bailing Company. On the 6th April 1958, he booked to himself 80 bales of raw jute weighing 320 mds under Invoice No. 4 forwarding Note No. 30 R/R No. 018930 from Shibganj Railway Station to Dinajpur. When the consignment did not reach the destination even after long delay, the plaintiff wrote to the Railway authorities enquiring about the same. No reply having been received he asked the Station Master of Dinajpur for a certificate to the effect that the consignment did not reach the station at ail. After a good deal of correspondence the plaintiff was for the first time informed by the District Traffic Superinten--dent, Lalmonirhat, on 8-7-58 that the wagon No. E.B.B.C.
3. 4168 containing the 80 bales in question caught fire on 6-4-58 and the wagon was still lying, at Shibganj. This information was confirmed by the Station Master Shibganj by his letter No. E. B. O. P./T 31 dated 24-7-58. It is further claimed that the jute in question was burnt inside the wagon at the station yard of Shibganj due to sheer ' n6gligence of the Railway Staff and that the Railway Administration was responsible for the loss suffered by the plaintiff. After serving a notice under section 77 of the Railways Act, the plaintiff instituted the present suit for recovery of the loss suffered by him. He claimed a total sum of Rs.11,431.
4. The defence case, however, is that the consignment in question caught fire due to "cohesion of the Jute inside the wagon". The Station Master was informed about it by the Railway porter Habibullah who raised alarm. All efforts were made by the fireman for extinguishing the fire but after 14 bales were unloaded the fire spread and the heat of the wagon became intense which. Prevented saving any more bales. The Fire --Brigade had been duly informed and it arrived at 10 p.m. And the fire was brought under control at 1-30 hours on 7-4-58. The burnt contents of the wagon were then unloaded and stored in the goods shed. Although requested, the plaintiff never took delivery of the salvaged goods. It was further asserted that the Railway Administration took all possible steps for the protection of the jute from an accidental fire and the defendant was not at all liable.
5. The learned Subordinate Judge on a consideration of the evidence oral and documentary observed :- "I am of opinion that the negligence of the Railway authority is responsible for the loss of the consignment."
6. He therefore decreed the suit on contest against the defendants for the entire sum claimed by the plaintiff together with costs.
7. Mr. Siddique Ahmed Chowdhury, learned Assistant Govern--ment Pleader, who appears for the appellants, submits that the learned Subordinate Judge's observation that the plaintiff's suggestion that porter Habibullah when sealing the wagon with wax by the flame of a burning lamp, a fibre of jute caught fire was not justified inasmu ch as there was not such suggestion.
8. Mr. Chowdhury's contention, that the learned Judge misread the evidence when he thought that there was such a suggestion is not justified. P. W. 2 Habibullah was cross-examined in the following terms :- "It was not a fact that fire broke out when I was sealing the wagon with wax and lamp."
9. This was in fact such a suggestion. This contention of the learned Advocate is of no substance.
10. Mr. Chowdhury, further argues that the learned Judge did not properly appreciate the evidence in holding that: "The burning lamp was used for melting the wax and at that moment the incautious use of the lamp caused the fire. And this is negligence."
11. It seems to us that it is begging the question. The learned Judge reached that conclusion on a review of the entire evidence led in the case, and we shall presently indicate that he was justified in reaching that conclusion.
12. We would, however, say here that although the learned Advocate made comments on the judgment we indicated to him at time of hearing that this being a First Appeal we shall ourselves examine the evidence adduced by the parties. At any rate the question stated above requires us to consider whether or not such a conclusion can be reached on the evidence.
13. "Proprietor Jhawar booked on 6-4-58 to self (i.e. Consignor was Kamal Jute Bailing Co. Shibganj and the Consignee was Kamal Jute Bailing Company, Dinajpur) 80 bales of raw Jute, 4 mds. Each total 320 mds . . . . ."
14. He has also stated :- "No bale of jute was in tact and fit for export. So we did not take delivery of any jute. The railway employees committed negligence and misconduct."
15. He was cross-examined but he remained unshaken and again categorically stated:- "It is not a fact that some bales were found fit for merchandize."
16. The next witness for the plaintiff is P. W. 2 Golam Mustafa. He is an officer of Pakistan Jute Association. He does not say anything about negligence or about the consignment. He was only for the purpose of giving evidence as to the price of the Jute.
17. P. W. 3 is the plaintiff himself. He has stated: "I booked on 6-4-58 80 bales of Jute (320 mds.) to Dinajpur from Shibganj. I sent for pucca bailing.
18. The jute never reached destination. The jute was dry and was not moist. The claim is not excessive." , "The jute was raw. It was not wet; it was dry."
19. So we get in the evidence of the plaintiff that 80 bales of raw jute which was dry was handed over to the defendant and that the same was booked from Shibganj to Dinajpur and that the said Jute never reached Shibganj.
20. On the defendants side most important witness is the Station Master of Shibganj during the relevant time. He says: "I was Station Master of Shibganj Railway Station on 6-4-58 320 mds. Of Jute in 80 bales were booked by Kamal Jute Bailing Company, Shibganj to thS Kamal Jute Bailing Company, Dinajpur."
21. It is, therefore, admitted by the defendant tit 80 bales of jute weighing 320 mds. Were booked from Shibganj to Dinajpur. The witness proceeds to say ; "The loading started at 12 a.m. At the railway risk by the station coolies."
22. Here is an admission that the loading was done at the risk of the Railway. He further says that "The Railway porter Habibullah gook lamp (illegible) hammer, label, seal etc. To seal the wagon.
23. That was at 6-25 p.m. At about 6-35 p.m. Habibullah shouted saying there was fire. I at once ran to the set. I found smoke coming out."
24. It is, therefore, seen that the Station Master admits that porter Habibullah took a lamp to seal the wagon Ten minutes after he went there he shouted that there was fire; It is, therefore, not unreasonable for the learned Subordinate Judge to infer that there was negligence, on the part of the dependant and the jute caught fire from the lamp of porter Habibull4h who, according to the Station Master, had gone to seal the was with the lamp in hand. The possibility of jute catching fire from the lamp of Habibullah is also supported by the evidence of Habibullah himself who says :- "I went as per direction of the Station Master to seal the Wagon No. E. B. B. C. 4168 on 6-4-58 at 6-25 p.m. I took hand lamp wax, (ille) card label etc."
25. It is therefore, clear that he took hand lamp and wax in order to use the lamp for sealing the wagon with wax, In order to show that the defendants are not responsible for one fire, attempt has been made to show that fire broke out spontaneously, but they failed in the attempt inasmuch as both Station Master and Porter Habibullah spoke about smoke coming out from the wagon as soon as they arrived there. It has been noticed that the only defence taken by the defendants is that there was spontaneous fire. This is not acceptable to us for, we find no reason to dis--believe the evidence of the plaintiff that the ate handed over to the Railway by the plaintiff was dry and note wet and the expect opinion is that there can be a spontaneous ire only if the jute is moist. In this case, the jute was not wet, The possibility of spontaneous fire is excluded.
26. Now the only question is, if the defendants have discharged their burden to show that they were not negligent and we are in agreement with the learned Subordinate Judge that the defendants have failed to do so. As a matter of fact in view of the evidence of the Station- Master and Habibullah going sealing the wagon with lamp in hand the irresistible inference is that the jute caught fire from the lamp of the porter of the defendants and as such the defendants are to make good the loss. So far as the price of the jute is concerned, the learned subordinate Judge has calculated it on the evidence adduced in this behalf and no argument was addressed to us that the price was fixed at a high and excessive rate.
27. We are unable to accept the argument of Mr. S.A. Chowdhury that 14 bales were in tact and the plaintiff ought to have taken delivery of the same, for Exh. 2 (g) shows that what was offered to the plaintiff was "burnt refuse of jute" and as such the plaintiff was justified in not accepting the same.
28. On .a consideration of the evidence in the case, we do not think that the Station Master's evidence that the 14 bales of jute were in tact is acceptable and we have no reason to disbelieve the state-- ment of P. W. 1 to the effect that no bale of jute was in tact. Regard being had to the circumstances of the case we do not think that any jute was saved from the fire that had broken out at about dusk on 6-4-58.
29. Mr. Siddique Ahmed Chowdhury had drawn our attention to Exh. D in which a telephone message is recorded to the effect "14 bales out of 80 saved in tact and half burnt jute about 1/4" It . Was also mentioned in Exh. C dated 6-4-58 that 14 bales of Jute were saved but the plaintiffs answer to this is that he was offered 14 bales only in the month of October and it is not known as to what was the condition of these 14 bales at the time it was offered.
30. At any rate it was the duty of the defendant to offer the same in the month of April, they failed to do so. We are, therefore, of opinion that the learned Subordinate Judge was right in not deducting the price of 14 bales of jute which were claimed to be in tact: In considering the evidence as indicated above, we have borne in mind the observation of their Lordships of the Privy Council in the case of Surat Cotton Spinning and Weaving Mills Limited v. Secretary of State for India-in---Council (64 I A 176). In that case their Lordships observed "The Railway Administration shall be bound to disclose to the consignor how the consignment was dealt with through--out the time it was in its possession or control and if necessary to give evidence thereof before the consignor is called upon to prove misconduct but if misconduct on the part of the Railway Administration or its servants cannot be fairly inferred from such evidence the burden of proving such misconduct shall lie upon the consignor."
31. Their Lordships also observed: "At the close of the evidence for the Administration two questions may be said to arise, which it is important to keep distinct. The first question is not a mere question of proce--dure, but is whether they have discharged their obligation of disclosure . . . . . . . . . . .
32. It will therefore be seen that in this case the Railway failed to disclose as to how they dealt with the jute before it caught fire. In fact it is in evidence that their porter took a lamp to the wagon, and, therefore, reasonable inference is that the jute caught fire from the lamp. This was indeed a negligence as we have already observed.
33. Mr. Siddique Ahmed Chowdhury places his reliance on the case of Pakistan v. Messrs H. Pir Muhammad Shamsuddin (PLD 1962 Kar. 810) and claims that it was a duty of the consignee to prove want of due diligence on the part of the defendant. In this case we have no doubt that the evidence to the effect that the porter had gone to seal the wagon with lamp shows that the defendants were negligent. His evidence lends support to the claim of plaintiff that there was want of due diligence on the part of the Railway.
34. It was field by a Division Bench of this Court consisting of Akbar and Chakraborti, JJ. In the case of the Honorary Secretary, Rangpur District Co-operative Consumer's Store Ltd., Rangpur v. The Federation of Pakistan (PLD 1960 Dacca 530) that "if the goods be despatched by a particular goods train and committed to the charge of the Railway as bailee and there is a short delivery, the Railway Administration shall be bound to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control and, if necessary, to give evidence thereof before the consignor is called upon to prove misconduct".
35. We are in respectful agreement with the principle laid down in this case and we are of opinion that the Railway in this case failed to prove its diligence in dealing with the jute in question throughout the period it was in its care and lo custody.
36. The last contention of the appellant is that the suit is not maintainable inasmuch as the plaintiff has not fulfilled the requirements of the provision of section 69 of the Partnership Act. The learned Advocate is not permitted to raise this point because the clear evidence in the case is that the plaintiff is the sole proprietor of the business which is merely called the Kamal Jute Bailing Company. No evidence has been adduced that it is a partnership firm. Therefore the question raised by Mr. Chowdhury is not borne out by the evidence. There is positive evidence that the plaintiff is the sole proprietor and there is total absence of evidence that it is a partnership firm.
37. That being so, the point raised is devoid of any substance.
38. For the reasons stated above, we do, not find any reason whatsoever to interfere with the judgment and decree of the learned Subordinate Judge.
39. No other point having been pressed before us, the appeal is dismissed with costs; and the judgment and degree of the learned Subordinate Judge are affirmed.
40. A. H. KHAN, J.-I agree.