Meredith, J.This application u/s 115, Civil P.C., is by the Governor-General of India in Council, and arises out of a suit brought against the petitioner for damages in respect of a railway consignment a consignment of biris was despatched to the plaintiff by the Oudh & Tirhut Railway to Madhepura in seven packages weighing 5 maunds 10 seers. The plaintiffs agent when he went to take delivery found that two packages were broken. He took open delivery, and the weight was found short by 39 seers, and he alleged in the suit that the shortage had been due to the wilful negligence or misconduct of the Railway Administration and its employees. Risk Note A and no other had been executed.

2. The Munsif dismissed the suit, holding that it had not been proved that the loss of 89 seers was due to the misconduct of the Railway Administration, but the learned Additional Subordinate Judge, Bhagalpur, in appeal has decreed the suit.

3. I explained the legal position at length with regard to such cases only the other day in Governor-General in Council Vs. Thakursi Dass, and it is unnecessary to repeat myself. There can be no doubt that in the present case the learned Subordinate Judge has not applied the law correctly, and did not understand the position as explained by me in that case. But that was an application u/s 25, Small Cause Courts Act, which gives much wider powers of interference in revision that does Section 115, Civil P.C. In a case u/s 115 errors in law are not in themselves a ground for interference in revision. There must at the lowest be some material irregularity which touches the question of jurisdiction, and here there has been none. There has been neither an exercise of jurisdiction not possessed, nor a failure to exercise jurisdiction, nor any irregularity or legal error which has in any way affected the question of jurisdiction. There is, therefore, in my opinion, no scope for interference in revision in this case.

4. The decision of the Learned Subordinate Judge was certainly wrong if the case was covered by the Risk Note, for, in Risk Note A the entire onus to prove misconduct lies on the plaintiff, and there is no provision, as there is in Risk Note B, that the Railway Administration must in the first instance disclose how the consignment has been dealt with throughout the journey before the plaintiff is called on to prove misconduct. Again, once Risk Note A has been executed it is no longer open to the consignor to assert that the packing was not defective. By signing the Risk Note he has admitted the defective packing. Again, the position in the present case was complicated by the fact that the suit was brought by the vendee not the consignor, but the goods had been despatched by the consignor addressed to self, and, I am told, that the railway receipt had not been endorsed over to the plaintiff. It is difficult to see in the circumstances what privity of contract there was between the plaintiff and the defendant upon which the claim has been based. All these things have been lost sight of by the learned Subordinate Judge, but, as I have said, the errors are errors of law, and as they do not give me the right to interfere in revision it will serve no useful purpose to discuss these questions further.

5. There is only one thing I would like to add. It seems to me there is some doubt in the present case whether the Railway Administration was really entitled to plead the Risk Note. Risk Note A is a special form to be used when articles are tendered for carriage which are either already in bad condition, or so defectively packed as to be liable to damage, leakage, or wastage in transit.

6. Under the risk note the consignor agrees to hold the Railway Administration harmless and free from all responsibility for the condition in which the goods may be delivered to the consignee at destination and for any loss arising from the same except upon proof that such loss arose from misconduct on the part of the Railway Administrations servants. The word "loss" as used here, in my opinion, cannot refer to any loss of the goods, but refers to loss arising from the condition in which the goods are delivered. In other words, the risk note has no application at all to cases of failure to deliver, or pilferage, because a thing never delivered cannot be said to have been delivered in any condition, and, therefore, no question arises of any loss arising from the condition in which the goods were found on delivery.

7. I think the Railway Administration can never plead the execution of this Risk Note in bar to a claim based on non-delivery. No doubt, it might cover loss arising from leakage or wastage, but it would be necessary to show that the loss was such as could "be said to come within one of the terms "damage", "leakage", or "wastage" used in the heading of the Risk Note. If once the plaintiff can establish that the loss must have resulted from pilferage, then I think Risk Note A ceases to have any application.

8. In the present case this aspect of the matter does not appear to have been considered, and there are no materials on which any opinion can be expressed as to whether it was a case of pilferage, or wastage, or leakage. I think it, however, better to make the legal position in this regard clear.

9. With these observations the application must be dismissed, but as I am dismissing it up on technical grounds and not upon the merits there will be no order for costs.