JUDGMENT Mulla, J. - This is an application in revision u/s 23 of the Small Cause. Courts Act. The Applicant is the Secretary of State for India in Council through the Collector Allahabad who was the Defendant in the suit. The stilt was brought by the opposite-party Sadho Lal Jaiswal to recover a sum of Rs. 300 by way of damages from the Applicant in to the following circumstances: The opposite-party is the proprietor of a firm at Allahabad. The firm has dealings in the ordinary course of business at Bombay through a firm of Commission Agents there. It appears that the Agents made over to the G.I.P. Railway at Bombay a consignment of 27 tins of cocoanut oil for being earned to Allahabad. The consignment was addressed to self but it is admitted that the R/R, was sent to the opposite party through a bank and that the opposite-party (sic) to take delivery of the (sic) at Allahabad on the 14th of March 1987 It may be mentioned (sic) that the consignment in question was (sic) by the Railway Company at Bombay under risk notes (Form A and H). As the main point which arises for consideration in this case turns upon the connect interpretation of the provision contained in these notes it is (sic) to point out that under risk note form the Railway Company accepts a consignment at a special (sic) at the owner's risk and in (sic) of this reduction in the rate the consignor under takes to hold the said Railway Administration harmless and free from all responsibility for any loss, destruction or deterioration of or damage to at or any of such consignment from any case (sic) upon proof that such loss (sic) deterioration or (sic). This is the general term of agreement between the consignor and the Railway Company as embodied in the first note (sic) but there is a farther provision for the particular cases. This is the general term of agreement between the consignor and the Railway Company as embodied in the first note (sic) but there is a farther provision for the particular cases. The provision runs as follows: Provided that in the following (a) Non-delivery of the whole of (sic) of the whole of consignment or of the whole of (sic) or made packages forming part of a consignment packet in accordance with the instructions laid down in the tariff or where there are no such instructions, protected otherwise than by paper or other packing readily removable by hand and fully addressed, where such non delivery is not due accident to trains or to fire. (b) Pilferage from a package or packages forming part of a consignment properly packed an in (a) when such (sic) is pointed out to the servants (sic) Administration on of (sic) the Railway Administration shall be bound to disclose to the consignor bay the consignment watt dealt with (sic) the time it was in its possession for control and if necessary, to give evidence thereof before the (sic) is called upon to (sic) the (sic) the Railway Administration or (sic) cannot be fairly inferred (sic) the harden of (sic) shall lie upon the (sic). 3. Under risk (sic) form A the con-signor admits that the consignment which he delivers to the Railway Company is in bid condition liable to leakage or was the in transit and agrees and undertakes to hold the said Railway Administration over whose Railway the said good be carried in transit harmless and free from all responsibility for the condition in which the aforesaid good may be delivered to the consignee at destination and for any rose anything from the same (sic) proof that each loss (sic), Administration servants. 4. As stated consignment in (sic) in the present case was accepted by the Railway Company at Bombay under risk notes (Form A and. H). The fact that the consignment was accepted under risk note Form A undoubtedly raises a presumption the was in bad condition and liable to damage, leakage or wastage at the time when it was delivered to the Railway Company. H). The fact that the consignment was accepted under risk note Form A undoubtedly raises a presumption the was in bad condition and liable to damage, leakage or wastage at the time when it was delivered to the Railway Company. When the opposite-party went to the Goods (sic) at Allahabad to receive delivery of the consignment he found that of the 27 tins offered to him 20 had no oil left in thorn, while the (sic) also damaged to a certain (sic) found further that (sic) of (sic) bore any mark either of the Railway or of the consignor at (sic) establish the identity of the consignment. He therefore refused, to take delivery of the consignment in spite of being assured by the Railway Authorities that the consignment was in fact the same which had been delivered to the Railway Company at Bombay by the consignor From the (sic) in the record it, (sic) that the Railway Company tried to satisfy the opposite-party (sic) to certain documents. In their possession that there could be no doubt about the identity of the consignment but the opposite party refused to accept delivery. The opposite party then preceded to file the suit for damages out of which the present application in revision arises; 5. When the suit was originally tried the learned Small Cause, Court (sic) dismissed it on two grounds: firstly that the opposite party was pot the owner of the consignment in question and was not therefore competent to maintain the suit secondly that the opposite party bad taken delivery of the consignment and it was consequently a case of short delivery and as the evidence did not establish any misconduct on the part of the Railway Company's servants the opposite-patty was not entitled to any damages. 6. The opposite party come up in revision to this Court. 6. The opposite party come up in revision to this Court. The learned Judge of this Court who held the case came to the conclusion that the opposite-party was the owner of the consignment in question and that he was justified in refusing to take delivery of the consignment, on the ground that its identity had Sot bean established, so that it was not a case of short delivery but that of non-delivery Having arrived at these conclusions the learned Judge proceeded to pass the following order: It is therefore ordered that the revision be allowed and as the issue about the price has not been decided the case be remanded to the lower Court to admit it under its original number and to dispose it of according to law. 7. When the case went back to the lower Court it appears that the Applicant wanted to produce some evidence on the question of his liability for damages, but the learned Small Cause Court Judge held that under the order passed by this Court he was authorised to decide the amount of damages only upon the evidence which was already on the record. He interpreted the order passed by this Court as an order decreeing the suit subject to the finding on the question of the amount of damages to which the opposite-party was entitled. Proceeding upon that assumption he has fully decreed the opposite-party's claim, hence the present application in revision. 8. The question which arises for consideration in this case is whether upon the finding of this Court that it was a case of non-delivery of a con assignment it necessarily fallowed that the opposite-party was entitled to a decree. Upon a very careful consideration of the judgment 6f the learned Judge of this Court. I do not find anything in it to show that this question was really considered at that time Apparently it was assumed at the time that the necessary result of the non-delivery of the consignment in dispute was that the Railway Com-pany was liable to pay the damages to the opposite party A careful consideration of the, language of risk notes (Form A and H) which I have set cut above will show that his assumption is not correct. Proceeding upon the finding that it was a case of non-delivery of a consignment the question remains for consideration whether the Railway Company is liable for damages. It is true that the onus in view of the above finding now-lies on the Railway Company in the first instance to disclose how the consignment was dealt with throughout the time it was in its possession or control and if it is found upon the evidence adduced by the Railway Company that there was mis-conduct on the part of its servants the Railway Company would be liable to damages without any further evidence on behalf of the opposite-party. If it is found, however, that the evidence produced on behalf of the Railway Company does not fairly lead to the inference that there was misconduct on the part of its servants the burden of proving such misconduct shall then shift on to the opposite-party. It appears from the record that the Railway Company produced some evidence to show bow it dealt with the consignment in question during the time it was in its possession and control and the learned Small Cause Court Judge who first dealt with the suit definitely found that misconduct on the part of the Railway Company's, servants had not been established. The learned Counsel for the opposite-party has strenuously argued that it is necessarily implied in the finding arrived at by the learned Judge of this Court that the evidence adduced by the Railway Company does not relate to the consignment which was delivered to the company by the opposite-party's agent at Bombay but to some other consignment. The argument is no doubt ingenious but not very convincing. All that the learned Judge of this Court considered at that time was the question whether any marks of identification made by toe. Railway or by the consignor were present on its tins making up the consignment when they were offered to the opposite-party at Allahabad and it was found-upon the evidence that there were no such marks and it was consequently held that the identity of the (sic) had not been proved and hence the opposite-party was justified in refusing to take delivery of it. The question as to what is the legal effect of the non-delivery of a consignment does not appear to have argued before the learned Judge an the previous occasion and dais not appear to have been considered by him in my judgment it is a with question upon which the liability of the Railway Company depends and as the case has not been considered from that point of view by the lower Court I consider it necessary to send it back to the lower Court with the direction that it shall proceed to decide the point in the light of the observations which I have made above regarding the interpretation of risk notes (Form A and H). The parties shall be at liberty to produce fresh evidence if they care to do so. The finding will be submitted to this Court within two months from this date The parties will have the usual ten days time for filing objections if any. Mulla, J. 9. In continuation of my order dated the 3rd of February 1939, by which I remanded this case to the lower Court for its finding open a particular issue, I need only estate that the lower Court has now found that the identity of the consignment in dispute which was refused by the Plaintiff at Allahabad with the consignment that was delivered to the railway company at Bombay by the Consignor has not been established and upon the evidence produced by the Railway Company to disclose how the consignment was dealt with throughout the time it was in its possession or control, it may fairly be inferred that there was misconduct on the part of the company's servants. This finding has been challenged by the learned Counsel for the Defendants on various grounds. I have beard the learned Counsel at considerable length and have myself perused the material portion of the evidence upon which the lower Court finding is based. Having done so, I do not find much force in the learned Counsel's contention and am inclined to accept the finding of the Court below. It is true that the lower Court allowed its mind to be influenced by its own interpretation of the order passed by this. Having done so, I do not find much force in the learned Counsel's contention and am inclined to accept the finding of the Court below. It is true that the lower Court allowed its mind to be influenced by its own interpretation of the order passed by this. Court in a previous revision; but the fact remains that it considered the evidence upon its merits and ultimately (sic) at the finding referred to (sic) upon that finding which. I accept it is evident that the Plaintiffs claim must be decreed. It was strenuously urged by the learned Counsel for the Defendants that be should have been given a further opportunity by the Court below to produce (sic) the question of the amount of damages to which the Plaintiff was entitled. I do not find much force in this Contention. When the suit was first tried, there was a clear issue framed by the Court on the question of damages and it was open to the Defendants to produce their evidence relating to that question. They filed to do so and there was no sufficient reason why when the suit was remanded by this Court the Defendants should have been allowed a further opportunity of producing evidence which they could easily have adduced at the first stage, The Court below accepted the sworn testimony of the Plaintiff on that paint and passed a decree upon that basis. I see no sufficient reason for (sic) The result therefore is that I dismiss this application in revision with costs.