Jwala Prasad, J.

1. This is an application in revision by the plaintiff against the decision of the Small Cause Court Judge of Raghunathpur, dated February 1, 1930. The plaintiff claims Rs. 199-12-0 against the defendants, the E.I.Ry. Co. and the B.N.Ry. on account of damage caused to 29 bags of atta, sooji and besan out of 167 bags consigned to the E.I.R. at Subzimundi in Delhi to be carried to Jaichandi Pahar, a railway station on the line of defendant No. 2, the B.N.Ry. The consignment was made on August 28, 1928 and the aforesaid bags were loaded in a wagon by the consignors, the Delhi Flour Mills, at a siding provided for them. The plaintiff took delivery of the consignment on September 12, 1928 and then it was discovered that 29 bags were damaged on account of rain water having got into the wagon. An open delivery was taken through the Commercial Inspector of the B.N.Ry. who noted the damage done to the contents of the bags which amounted to the maunds 10 seers of besan, 30 seers of sooji and 12 maunds 30 seers of atta. The plaintiff estimated the value thereof with railway freight at Rs. 170-9-0 which with interest at 8 per cent, came to be Rs. 199-12-0. The plaintiff says that the Commercial Inspector; agreed to pay him damages aforesaid, but on repeated demands he failed to do so. Consequently he served notices on the Agent of the E.I.R. and the Deputy Commissioner of Manbhum representing the Secretary of State: vide notices (Exs. 1 and 1-A). and acknowledgments (Ex. 4 and 4 A).

2. The defendants plead that no notice was served on them, but the Court below has found that notices were served and therefore this question does not arise here. The defendants further plead that the Secretary of State was a necessary party to the suit. The Court below has upheld this plea and has held that the suit is not maintainable against defendant No. 1, the E.I.Ry. under Section 79, Civil Procedure Code. The Court below has found that there was heavy rain four or five days before the consignment arrived at its destination Jaichandi Pahar on September 12, 1928 and accepting the statement of the Station Master of Jaichandi Pahar, the Court below found that;

the consignment must have got wet by rain water entering into the wagon through the sides of the flap doors by the force of wind, while it was in transit
and also due to bad condition of the bags themselves; that there was no "wilful negligence" on the part of the railway staff and according to the contract and the risk-notes in forms A and H (Exs. C and D) the defendants are not liable for the damage done to the goods in question. The Court further says that as the Secretary of State has not been made a party the E.I.Ry. can not be made liable and as there is no evidence to show that the consignment was damaged while it was being carried over the lines of the B.N.Ry. Co., defendant No. 2, that company also cannot be made liable. Accordingly, the Court below dismissed the suit of the plaintiff. The plaintiff has come up to this Court in revision and contends that the findings of the Court below do not absolve the defendants from the liability and that upon the findings it must be held that it was the duty of the defendants to provide against the damage done to the bags by rain water forcing itself into the wagon through the flap doors. Their failure to provide against such contingency, which during the rainy season, viz, the months of August and September, must be expected to be usual, constitutes "misconduct" within the meaning of the expression used in the Risk Note forms 4 and H (Exs, C and D). The present risk-notes do not require proof of "gross negligence," which the Court below has found as not proved in this case, in order to make the Railways liable for loss, deterioration or damage to a consignment. The liability arises when less, deterioration or damage arises from "misconduct" of the Railway administration's servants. "Misconduct" would ordinarily mean failure to do what is required of a persona to do. Certainly it was the duty of the Railway administration to provide against such ordinary contingency, such as rain water forcing itself into the wagon and causing damage to grain, etc, in it. The fact that the rain water did enter the wagon and caused damage to the plaintiffs consignment is itself sufficient to show that proper and requisite precautions were not taken by the Railway administration to provide against such contingency.

3. The word used in those risk-notes is "misconduct" and not "wilful misconduct." A mere omission to do what is expected of a person to do constitutes misconduct whereas if such failure is directed to intentionally cause mischief or loss to any person, then it is called "wilful misconduct." The Railway administration or its servants might not have intended to cause any damage to the plaintiff's consignment and with that object neglected to do their duty, but a mere neglect of duty will charge them with misconduct and will bring the case within the risk-notes: vide M.& S.M. Ry. Co., v. Nallathambi Chetti 105 Ind. Cas. 299 : AIR 1927 Mad. 908 : 26 LW 355 : 53 MLJ 407 The decision in the case of London and North Western Railway Co. Richard Hudson and Sons, Ltd. (1920) A.C. 324 : 122 L.T. 530 : 89 L.J.K.B. 323, might with advantage be referred to on the principle that should govern such a case, though the facts of that case are not on all fours with those of the present case. The decision in Bengal Nagpur Railway v. Dhanjishah Pestonji 124 Ind. cas. 332 :A.I.R. 1930 Cal.298 : 57 C.634 : 33 C.W.N. 1048 : Ind. Rul. (1930) Cal.428. relied upon by the opposite party has no application to the facts of this case. In this case the Secretary of State for India in Council has not been made a party under Section 79, Civil Procedure Code and therefore that Railway company is not liable as found by the Court below. The contention of Mr. Chatterji is that notice under Section 80 was given to the Deputy Commissioner of Manbhum and a reference to that notice has been made in the plaint as is required under Section 80, but through oversight the Secretary of State for India in Council was not mentioned as defendant but only the East Indian, Railway Company, through its Agent was made defendant. Therefore although the description of the defendant is wrong as held in the case of Elahi Bakhsh v. E. I.Ry. Administration 133 Ind. Cas.451 : A.I.R. 1931 Pat. 326 : 10 Pat. 646 : Ind. Rul. (1931) Pat. 371 : 13 P.L.T.86. and the East Indian Railway cannot be made liable, it is contended that an opportunity should be given to the plaintiff to amend the plaint and bring the Secretary of State for India in Council on the record. He says that virtually the Secretary of State for India in Council got the notice and the case is only of misdescription as was held in The Saraspur Manufacturing Co. Ltd. v. B.B.C.I.Ry. Co. Ltd. He also refers to Mulla's Note on the Civil Procedure Code under Order I, Rule 10. There is no substance in this contention and it is overruled.

3. The next contention is that defendant No. 2 at least should have been made liable, because the consignment was delivered at Jaichandi Jahar on the Bengal Nagpur Railway and the damage was caused by rains four or five days prior to that, that is, about 6 or September 7, 1928. Considering the time that the, consignment took to come from Subzimandi which it left on August 28, 1928, to Jaichandi Pahar on September 12, 1928, the wagon probably met with rains on the Bengal Nagpur Railway. Therefore that Railway cannot be absolved from liability even if the East Indian Railway is not liable on account of the Secretary of State for India in Council not having been made a party. The defendants however have given no definite evidence on this point. The defendants must have noted the date and time when the wagon in question left the East Indian Railway and came to the Bengal Nagpur Railway. They must have also got notes of when the wagon met with rains.

4. The defendants are therefore called upon to make a statement upon the aforesaid point and to produce the documents in their possession bearing On the point.

5. The defendants have intimated through the learned Advocate appearing on their behalf that as the wagon was not checked en route it is not possible to say on which Railway the bags got wet. It is not possible for the defendants, much less it is possible for the plaintiff, to say on which line the wagon met with rains. Now the finding of fact arrived at by the Court below already referred to above is that there was heavy rain four or five days before the consignment arrived at its destination, Jaichandi Pahar, on September 12, 1928; that is, the wagon must have met with rains about September 6 or 7, 1928 and the contention of the plaintiff that the consignment was damaged on the Bengal Nagpur Railway seems to be sound. The Court below says:

There is no evidence to show that the consignment was damaged while it was being carried over the lines of the Bengal Nagpur Railway and accordingly I do not see how this Railway can be made liable.
5. The Railway company in their statement now made through their Advocate referred to say that they have no evidence to show where the consignment was damaged. The loss in this case is admitted and the onus of how the consignment was dealt with and its condition throughout the transit lay upon the Railway company and their failure or inability to enlighten the Court on the point cannot prejudice the plaintiff's claim : Vide Ganash Dass Bisheshwar Lair. East Indian Railway Company  102 Ind. Cas.403 :A.I.R. 1927 Pat. 193 : 6 Pat. 189 : 8 P.L.T. 385. Puran Dass v. East Indian Railway Company 102 Ind. Cas. 673 :A.I.R. 1927 Pat. 234 : 6 Pat. 718 : 8 P.L.T. 415 (F.B.) and Narendra Nath Sen v. Bengal & North Western Railway Company 105 Ind. cas.546 : A.I.R. 1928 Pat. 95 The fact that the plaintiff got the consignment in a deteriorated condition at Jaichandi Pahar on the Bengal Nagpur Railway raises a presumption that prima facie the damage mast have been caused on that line, particularly when upon the statement of the plaintiff and the Station Master the wagon when it reached Jaichandi Pahar was found "freshly wet" The Station Master says that the consignment must have got wet by rain water entering into the wagon through the sides of the flap doors by the force of wind and the plaintiff says that the roof was leaking. The fact remains that it was found freshly wet as if it met with rains just before coming to Jaichandi Pahar. Therefore it would not be correct to say, as the Court below has done, that there is no evidence to show that the consignment was damaged while it was being carried over the lines of the Bengal North Railway; and upon the facts, the evidence and the circumstances referred to above the Court below ought to have held that the plaintiff's consignment was damaged while on the lines of the Bengal Nagpur Railway. Section 80, Railways Act, gives option to the plaintiff to make the Railway Company to which the goods were delivered as well as the Railway Company or whose Railway the loss injury, destruction or deterioration occurred.

6. He may sue the one or the other, or both. I have carefully considered the case relied upon by the learned Judge of the Small Cause Court, viz., Darbai Mai Ram Sahai v. Secretary of State 92 Ind. Cas. 332 : A.I.R. 1926 Lah.116 : 6 Lah. 499. and the cases cited by the learned Advocate on behalf of the plaintiff, viz., G.I.P.Ry. Co. v. Jugul Kishore Mukal Lal 121 Ind. Cas. 828 : A.I.R. 1930 All. 132 ; Ind. Rul. (1930) All. 204 : (1930) A.L.J. 297 : 52 A. 238., and East Indian Railway Company v. Chinmay Charan Sanyal  96 Ind. Cas. 1037 :A.I.R. 1926 Pat. 395 : (1926) Pat. 220. This last case has nothing to do with the point in question. In the case of Darbai Mai Ram Sahai v. Secretary of State 92 Ind. Cas. 332 : A.I.R. 1926 Lah.116 : 6 Lah. 499, cited by the Court below the goods were delivered to the Bengal & Northwestern Railway, but the North-Western Railway failed to deliver back the goods to the plaintiff. The suit brought against the North-Western Railway and not against the Bengal & North-Western Railway, was dismissed for want of notice under Section 80, Railways Act, upon the ground that the loss did not occur on the North Western Railway and therefore that Railway was not liable under Section 80. It was however pointed out in the case of G.I.P. Railway Company v. Jugul Kishore Mulcat Lal 121 Ind. Cas. 828 : A.I.R. 1930 All. 132 : Ind. Rul. (1930) All. 204 : (1930) A.L.J. 297 : 52 A. 238. and Hill Sawyers & Co. v. Secretary of State 61 Ind. Cas. 926 : AIR 1921 Lah. 1 : 2 lah, 133 3 Lah. L.J. 297. referred to above, that the plaintiff has the option of suing either the Railway to which the goods are delivered or the Railway on whose Railway the deterioration occurs : Vide also Secretary of State v. Bhagwan Das 102 Ind. cas.440 : A.I.R. 1927 All. 371 : 25 A.L.J. 549. It was also pointed out that Section 80 is not prohibitive but that it is an enabling section whereby both the Railways can be made liable.

7. The principle underlying Section 80 is this: that the Railway which takes delivery of goods with an undertaking to carry it safe is an agent for the Railways over which the goods have to pass in order to reach its destination and vice versa. The consignor is a third person. He contracts with the particular Railway to deliver to him at a particular station the goods consigned and the arrangement of carrying the goods is between the Railways over which the goods has to pass and has nothing to do with the consignor. Therefore the deterioration in this case having occurred to the plaintiff at the place where the goods had to be delivered back, namely the Bengal Nagpur Railway, that Railway is as much liable as the East Indian Railway, the original undertaker, to carry the goods safely. Therefore under the law and upon a true construction of Section 80, the Bengal Nagpur Railway was equally liable as the East Indian Railway jointly and severally; and as the East Indian Railway is being absolved upon the ground that the Secretary of State for India in Council though a necessary party was not impleaded in the suit, the liability of the Bengal Nagpur Railway remains and therefore the plaintiff is entitled to a decree against the Bengal Nagpur Railway. The Court below has found that the plaintiff claim the price of the articles damaged according to the assessment of the Commercial Inspector besides refund of proportional Railway freight and there is no evidence on the other side to show that it is in any way excessive. Accordingly, the plaintiff's claim must be decreed as claimed against the Bengal Nagpur Railway. I therefore set aside the decision of the Court below in so far as the Bengal Nagpur Railway is concerned and decree the plaintiff's suit against that Railway with costs throughout. The decree passed by the Court below in favour of the East Indian Railway is upheld and that Railway is entitled to costs: hearing fee two gold mohurs.