Jwala Prasad, J.

1. This is an application under Section 25 of the Provincial Small Causes Act against a decree passed by the Subordinate Judge of Gaya exercising the powers of a Judge of the Small Cause Court against the G. I. P. Ry. Co. for compensation on account of loss of a complete package out of a consignment of 16 bales of cotton yarn under R. R. No. 6047-11 Invoice No. 1 on the 5th June, 1920 delivered to the Railway for carriage by goods train and to be delivered to the plaintiff at Gaya.

2. The consignor, at the time when the goods were made over to the Railway Company at Madan Mahal, signed what is known as Risk Notes A and B. Under the risk-note the consignor paid a special reduced rate instead of the ordinary tariff rate chargeable for such a consignment and in consideration thereof he agreed that the Railway Company shall be free from all responsibility for any loss, destruction, deterioration of, or damage to the said consignment, from any cause whatever except for the loss of a complete consignment or of one or more of complete packages forming part of a consignment due either to the wilful neglect of Railway administration, or to theft by or to the wilful neglect of, its servants, transport agents or carriers employed by them before, during and after transit over the said Railway or other Railway lines working in connection therewith.............

3. "The Risk Note B further provides that the term "wilful neglect" mentioned therein shall be held not to include fire, robbery from running train or any other unforeseen event or accident." The effect of the Risk Notes A and B is to limit the ordinary liability of the Railway Company under Ss. 70 to 76 of the Indian Railways Act (IX of 1890). The Railway Company becomes a bailee under Ss. 151, 152 and 161 of the Indian Contract Act of 1872 and are common carriers under the Indian Carriers' Act.

4. To state briefly, the Railway Company would be liable for the loss, destruction or deterioration of any consignment either wholly or in part of any goods consigned to them, and they are required to deliver the goods so consigned to the consignee in the condition in which they were consigned to them. This ordinary liability under Ss. 72 to 76 of the Act is intended to be limited by the special agreement between the Railway Company and the consignor, embodied in Risk Notes A and B and the consideration for limiting the liability of the Railway Company is the reduction of the ordinary tariff rate.

5. Such an agreement has been saved by CI. (2) of S. 72 which says:-"An agreement purporting to limit that responsibility of Clause (1) shall, as far as limitation be void unless it is in writing signed by or on behalf of persons sending or delivering to the Railway administration the animals or goods, and is otherwise in a form approved by the Governor-General in Council." The Risk Notes A and B fulfil the conditions for rendering the contract valid, and therefore the parties are bound by the contract embodied in the risk notes.

6. The Railway Company under the risk-note is therefore liable only for the loss of one or more complete packages due to the wilful neglect of its servants, transport agents or carriers employed by them. The plaintiff therefore in order to succeed in an action for compensation for the loss or deterioration of the goods consigned to the Railway must set forth all the particulars constituting the wilful neglect or default of the Railway Company which occasioned the loss or deterioration as is required by O. 6, R. 4 of the Civil Procedure Code. The plaintiff is further required to substantiate by evidence the case of wilful neglect or default on the part of the Railway Company and its servants.

7. In other words, the onus of proving wilful neglect and default of the Railway Company and thereby fixing the liability upon it must necessarily rest upon the plaintiff. No doubt without the risk note the plaintiff need not have proved beyond the loss or deterioration of his goods and the onus would have been entirely upon the Railway Company under Sections 72 to 76. This view has now been settled by a string of authorities: Sheobarut Ram v. The Bengal and North Western Railway Com-way (1912) 16 C. W. N. 766=15 I. C. 56, East Indian Railway Company v. Nilakanta Roy (1914) 41 C. 576=19 C. L. J. 142=22 I. C. 679= 19 C. W. N. 95, The Agent, East Indian Railway Company v. Ajodya Prasad (1919) 1919 P. H. C. C. 150=49 I. C. 498, East Indian Railway Company v. Nathmal Behari Lal (1917) 39 All. 418=39 I. C. 130=15 A.L.J. 321, Magan Lal Purshotam v. The Bombay, Baroda and Central India Railway Company Indian Rail Cases 36, Bombay, Baroda and Central India Railway Company v. Ambala Sew ah Lal and others Indian Railway cases 48.

8. The distinction between a case instituted under Sections 72 to 76 of the Indian Railways Act and that based upon the risk-notes A and B has been dealt with in almost all the aforesaid authorities. In the case of East Indian Railway Company v. Kanak Behari Haldar (1918) 22 C. W. N. 622=44 I. C. 691, it was held that the cases under Sections 72 to 76, viz., in Surendra Lal Chaudhri v. Secretary of State for India in Council (1917) 25 C. L. J. 37=38 I. C. 702, and Sesham Patter v. Moss (1894) 17 Mod. 445 do not apply to the case arising under the risk-notes A and B.

9. The facts of the present case appear to be exactly similar to those in Toonya Ram v. East Indian Railway Company (1903) 30 C. 257=7 C. W. N. 370, where a decision such as that arrived by the Small Cause Court Judge in the present case was set aside upon the ground that the onus was wrongly placed upon the Railway Company instead of upon the plaintiff. The Judge of the Small Cause Court in the present case appears to be under a misapprehension of the scope of the plaintiff's suit.

10. In the plaint no charge was laid against the Railway Company of wilful neglect or wilful default which occasioned the loss of the package in question. Far less was there any circumstance or fact disclosed in the plaint constituting wilful neglect or default such as is enjoined by O. 6, R. 4 to be stated in a suit upon wilful neglect or wilful default.

11. That the Judge was under a misapprehension is also apparent from the entire absence bf the word wilful neglect or wilful default in his judgment. He does not come to any finding that the loss of the plaintiff's goods was due to the negligence of the defendant Company, in fact he does not refer to any evidence on behalf of the plaintiff bearing upon the loss of the goods due to the negligence of the defendants. He simply says:

"From the statement of Ram Prasad it appears that the loss was caused at Madan Mahal which is a Station of the 2nd defendant."

12. He further admits that the goods were covered by the risk-notes A and B, but he wrongly holds that these notes would sot exonerate the Railway Company in case of a complete consignment, and this shows that the learned Judge of the Small Cause Court perhaps did not read the risk-note (Exhibit B) which deals with the loss of a complete consignment or a complete package. He has treated the case as if it was under Sections 72 to 76 of the Indian Railways Act and consequently he has fallen into the common error of throwing the onus upon the defendant instead of upon the plaintiff. This very point has been dealt with in the cases quoted above and there is no authority to the contrary.

13. I wonder whether the cases cited above were placed before the learned Judge of the Small Cause Court, or his attention was ever directed to the distinction between the cases under Sections 72 to 76 of the Indian Railways Act and the risk-notes A and B.

14. In terms of the order passed in the case of Toony Ram v. The East Indian Railway Company (10) I hold that the decree passed by the learned Judge of the Small Cause Court against the Railway Company is wrong in law and ought to be set aside under Section 25 of the Provincial Small Causes Act.

15. The rule is accordingly made absolute. In the circumstances of the case, there will be no order as to costs, each party bearing its costs throughout.