S.N.P. Singh, J.

1. This appeal by the defendants under Clause 10 of the Letters Patent is directed against the judgment and decree passed by the learned single Judge in First Appeal No. 413 of 1957.

2. The plaintiff is a firm named Gyani Rain Bhagat Rain and it carries on business of general merchant and commission agent at Mokamah in the district of Patna. The plaintiff brought a suit for recovery of a sum of Rs. 7,958-11-6 from the defendants, Eastern Railway, represented by the Union of India on the following allegations. The plaintiff purchased 202 bags of Arhar Dal weighing 503 maunds through its commission agent Messrs Premnarain Gobind Narain at Debai on the North Eastern Railway. The consignment was booked to the plaintiff as consignee to Mokamah Junction under railway risk. When the wagon containing the consignment had reached Dinapur, the door of one side of the wagon was found open. It was re-scaled before the train left that station.

The consignment reached the destination on the 29th June 1954, and at the time of unloading some of the bags were found slack and loose. The representative of the plaintiff, who was present at the Mokamah Railway Station to take delivery of the consignment, asked for delivery on weighment of each bag but the goods clerk refused to weigh more than 28 bags which were found slack and loose. Thereupon the representative of the plaintiff approached the Station Master but the latter also did not accede to his request. The Station Master, however, weighed two sound bags and found that each of them weighed 2 maunds and 15 seers as against the average weight of 2 maunds and 21 seers each.

Some correspondence between the plaintiff and the higher authorities of the Railways followed about giving delivery of the goods after reweighment of all the bags. On the 4th of August 1964, the Chief Commercial Superintendent, Eastern Railway, sent a letter to the plaintiff informing him that the matter had been enquired into by the Commercial Traffic Inspector and the latter had found only 28 bags in slack and loose condition, In that letter the plaintiff was further informed that if he failed to take delivery of the goods within a fortnight on payment of Rs. 2,475-4-0 as wharfage and Rs. 556-7-0 as the freight, the goods would be sold. Ultimately the Railway sold the goods by public auction on the 7th of December 1954, for Rs. 3,025. The plaintiff after serving notice under Section 77 of the Indian Railways Act as well as under Section 80 of the Code of Civil Procedure brought the suit on the aforesaid allegations.

3. The defendants contested the suit of the plaintiff and took a plea that the plaintiff had no right to ask for open delivery and that the deterioration of the goods, if any, was due to the laches on the part of the plaintiff in not taking delivery of the same when they were offered to be delivered to it. It was further alleged by the defendants that only 28 bags out of the consignment were found slack and loose and they had been kept separate from the rest. The defendants made a counter claim for a sum of Rs. 7193/9/- from the plaintiff as charges due to them on account of the freight and wharfage after deduction of the sale proceeds obtained by them.

4. The learned Additional Subordinate Judge, who tried the suit, accepted the defence of the Railways that they were not bound to give open delivery to the plaintiff. He further held that the plaintiff was responsible for not taking delivery of the consignment and that it was not a case of refusal by the railway authorities to deliver the goods so as to constitute gross misconduct on their part. The learned trial Judge, therefore, dismissed the suit of the plaintiff and allowed the counter claim of the defendants to the extent of Rs. 3030/4/- but as they had with them a sum of Rs. 3025/- out of the sale proceeds of the goods sold by public auction by them, it decree for a sum of Rs. 4/12/- only was passed in their favour. Being aggrieved b) and dissatisfied with the judgment and decree of the trial court, the plaintiff filed First Appeal No. 413 of 1957 in this Court.

5. The learned single Judge, who heard the first appeal, reversed the Judgment and decree of the trial court and decreed the suit of the plaintiff in full and disallowed the counter claim of the defendants on his view that in the circumstances of the instant case the plaintiff was justified in refusing to take delivery of the goods before weighment by the defendants and the plaintiff firm was not liable to pay any charge for the retention of the goods in the railway premises.

6. The sole point for determination in the present appeal is whether the plaintiff is entitled to any relief on the basis of the refusal of the defendants to give an open delivery of the consignment.

7. It is well settled that the Railways are not bound by law either to reweigh the goods or certify shortage at the time of delivery to the consignee. The earliest decision of this Court which has been brought to our notice is a Rench decision in the case of Suraj Mal Marwari v. B. N. Rly Co., AIR 1920 Pat 193 equivalent to 58 Ind Cas 200 . In that case it was observed as follows;--

"The plaintiffs therefore cannot claim that the refusal to take delivery was Justified on the ground that re-weighment was not granted before delivery. It is clear that if the plaintiffs were dissatisfied either with the amount of freight charged or the condition of the goods when they arrived, they should have taken delivery and paid the charges demanded and would then have been able to take steps to obtain any refund which was proved due to them."

In the case of Badridas Firm of Purulia v. Governor-General for India in Council, : AIR 1947 Pat 118 a single Judge of this Court took a similar view and held that a consignee is not entitled as of right to claim an open delivery. In that case the point for consideration was whether the Railways were entitled to charge wharfage because of the fact that the goods remained in the goods shed due to the refusal of the railway administration to give an open delivery. The learned single Judge referred to a decision of the Allahabad High Court and relying on that decision held that the plaintiff was not entitled as of right to claim an open delivery. He further observed as follows:---

"That being so, the plaintiff was insisting upon something to which he was not in law entitled. In my opinion, therefore, the railway administration was Justified in charging wharfage for the period that the goods remained in the goods shed of the Railway company. The plaintiff should have arranged to take delivery as soon as the goods arrived and then he should have pursued his remedies, if any. Instead of doing that he insisted upon something to which he was not entitled. If he had to pay for that he has to thank himself and nobody else."

In the case of Vishun Prasad Bhadani v. Union of India, 1959 BLJR 404: (: AIR 1960 Pat 323 ) my learned Brother sitting singly relied on the earlier two decisions or this Court mentioned above and held that the consignee was liable to pay whartage because of his refusal to fake delivery of the sugar in question when the railway authorities were prepared to give delivery of the same to him with a certificate of damage. The above-mentioned cases have been noticed by the learned single Judge in his Judgment. Two recent Bench decisions of this Court have been brought to our notice in which the same view has been reiterated.

In the case of Dehri Rohtas Light Rly. Co. Ltd. v. East Keshalpur Colliery, : AIR 1963 Pat 46 it was observed as follows:

"Mr. Mitra argued that this company was Justified in refusing to take delivery, because the coal in question was not fit for burning lime stone. But it is well settled that a consignor or a consignee of goods is not Justified in refusing to take delivery from the railway on the ground that the quality of the consignment was bad or that there was a shortage in consignment at the time of delivery. It is also well settled that a consignor or a consignee is entitled to sue the railway for damages in such cases and that, if he refuses to take delivery, he does so at his own risk.

In Civil Revn. No. 1199 of 1962, disposed of on 22-2-1966 (Pat), Union of India v. M/s. Agarwal Colour Co., (unreported), one of the points for consideration was whether the plaintiff was entitled in law to insist upon open delivery. It was held that the law on the point was settled and the plaintiff was not entitled to refuse to take delivery of the consignment on the ground that the railway authorities did not give open delivery in respect of the same. It was further observed as follows:

"If the consignment in question had been damaged, then the plaintiff could recover compensation for the damage from the railway administration. But, in that case, the plaintiff would have to prove both the factum as well as the extent of the damage. In the present case, there is absolutely no evidence to establish what was the extent of the damage, if any, caused to the consignment. The reason for want of evidence on this point obviously was the plaintiffs own default in not taking delivery of the consignment in consequence of which the plaintiff itself was not aware of the extent of the damage to the consignment. Without proof of the extent of the damage to the consignment, the plaintiff cannot get any decree in this suit."

My learned Brother was a party to that decision.

8. Before the learned single Judge reliance was placed on behalf of the Railway on Rule 47 of Goods Tariff, Part I, which reads as follows:

"A consignee must take delivery of goods forming part of a consignment whenever they are available for delivery notwithstanding that the remaining goods are short or damaged or have not arrived at their destination or are otherwise not available for delivery; and, if the consignee does not take delivery of such goods forming part of a consignment as are available for delivery, they will Be subject to wharfage charges if not removed within the time allowed for removal."

The learned single Judge on construing the rule took the view that the rule did not give any assistance to the defence in the instant case inasmuch as it related to the circumstances in which the Railways are entitled to realise wharfage charges from a consignee when he fails to take delivery of a part of the consignment on the ground that the remaining part did not arrive or was short or was damaged but did not speak of absence of any right of the consignee to ask for open delivery nor provided that the Railways are not bound to give in any circumstances whatsoever open delivery of any consignment.

According to the learned single Judge, the relevant rule is Rule 18, which reads as follows:--

"Railways do not undertake to weigh consignments at destination stations as a matter of course. Such weighments at destination stations can only be considered in exceptional cases when the condition of the consignment or package warrants this." Construing Rule 18, the learned single Judge has taken the view that although, as a matter of course, a consignee cannot claim open delivery or the railway cannot undertake reweighment at the destination station, yet, there may be justifying circumstances in a particular case, where such re-weighment at the destination station can be allowed, particularly in view of the condition of the consignment or packages as they arrive at the destination station.

On the facts of the instant case, namely, that the door of one side of the wagon was found open at Dinapur Station when the consignment reached there on its way to Mokamah; that the unloading clerk found 28 bags to be slack and in loose condition and those bags were stacked separately, that the railway servants were willing to weigh those bags before delivery and give a certificate of shortage; that the plaintiff represented to the defendants officers that there were many other bags which were also in defective condition and that some of those bags were admitted to have been reweigh-ed by the railway officer and found to have contained six seers less each, the learned single Judge held that the plaintiff was not unjustified in asking for re-weighment when that was permissible under the practice and rules obtaining with the defendants before the delivery of the consignment and that the refusal by the officers of the railway to accede to the request of the plaintiff was unjustified and that the detention of the goods since they arrived at Mokamah till they were sold by public auction was due to the unreasonable refusal on the part of the defendants.

The learned single Judge further referred to Section 160 of the Contract Act and observed as follows:--

"The defendants in this case were no doubt in the position of a bailee and they were bound to deliver the goods bailed with them. As a common carrier they were equally bound to deliver the goods given to them for carriage. In the present case the carriage of the goods was at railway risk. If there were obvious signs of defect in the consignment at the destination, it was only meet and proper for the defendants, unless there was any statutory rule against that, to satisfy the request of the consignee about the weighment of the goods, particularly when some of them were found in apparent defective condition and with shorter weightage."

Ultimately he held that the present case justified the application of the exception provided under Rule 18.

9. In the present appeal the facts found by the learned single Judge have not been challenged before us. The only contention put forward by learned counsel appearing for the Railway is that the plaintiff is not entitled to a decree for damages on the basis of the refusal of the defendants to give open delivery of the consignment in question. In my opinion, there is substance in the contention raised.

As I have already stated, it is well settled that the Railways are not bound by the law to reweigh the goods or certify shortage at the time of delivery of the goods to the consignee. The first part of Rule 18 makes it perfectly clear that one of the conditions imposed by the Railways in connection with the booking of a consignment is that they would not weigh the consignment at the destination station. In exceptional cases, however, weighment at the destination station can be allowed at the discretion of the Railways when in their opinion the condition of a particular consignment or package warrants such a weighment. When the Railways are not bound by law to re-weigh a particular consignment at the destination station, it is really difficult to hold that a consignee can found his claim for damages in absence of any proof of actual damage of the goods because under Rule 18 re-weighment at the destination station is permissible by the Railways at their discretion in certain exceptional cases. It is For the Railways to decide in a particular case whether there are justifying circumstances for re-weighment at the destination station or not. A consignee may be fully justified in asking for re-weignment at the destination station but if in law the Railways are not bound to give open delivery of the consignment, the consignee cannot base his claim merely on the refusal, rightly or wrongly, of the railway authorities to give open delivery of the consignment The Railways as a bailee are no doubt bound to deliver the goods to the consignee as soon as the consignment reaches the destination station. They were also no doubt bound to compensate for the loss or damage, if any, of the consignment if the consignment is booked at railway risk.

In the instant case, so far as the delivery of the consignment is concerned, it is the admitted position that the officers of the Railways were insisting on immediate delivery and before delivery they were willing to weigh those 28 bags of Dal which were found slack and in loose condition and give a certificate of shortage. In spite of that the plaintiffs representative refused to take delivery. Therefore, it cannot be said that there was refusal by the Railways to give delivery of the consignment. So far as actual loss or damage of the consignment is concerned, the plaintiff has not led any evidence in the instant case to prove as to what was the actual loss or damage of the goods. As was observed in Civil Revn. No. 1199 of 1962 (Pat), if the consignment had been damaged, the plaintiff could recover compensation on proof of the factum as well as the extent of the damage. In absence of such a proof the plaintiff, in my opinion, cannot get a decree for damages or compensation merely on the basis of the refusal of the Railways to give open delivery.

10. For the reasons stated above, I am of the view that in the instant case the plaintiff is not entitled to any relief. No argument on the counter claim which was allowed to the defendants by the trial court was advanced on behalf of the plaintiff.

11. In the result, 1 allow this appeal, set aside the judgment and decree of the learned single Judge and restore those of the trial court. In the circumstances of the case, I direct that the parties will bear their own costs of this appeal.

Choudhary, J.

12. I agree