JUDGMENT Biswas, J. - This Rule was obtained of behalf of the River Steam Navigation Co. Ltd., and the India General Navigation and Railway Co. Ltd., two limited companies who were jointly sued as Defendant No. 2 in the Small Cause Court jurisdiction of the Munsif's Court at Madaripur. The Plaintiff who is opposite party No. 1 in this Rule had booked two consignments of furniture from Chaibasa, a Railway Station on the Bengal Nagpur Railway, to Churmuguria, a Steamer Station served by a steamship line run by the petitioners. It is common case that the goods had to be transported over two other Railways before they were entrusted to the petitioner companies at Khulna for carriage to the terminal station. The suit was for recovery of a sum of Rs. 243-6-0 as compensation for loss and damage in respect of the above consignments. The Bengal Nagpur Railway was made the first Defendant in the suit. There can be no doubt that the primary liability for the loss or damage would be that of the Bengal Nagpur Railway Administration, as the goods were delivered by the consignor to that Administration at Chaibasa. It appeared, however, that no proper notice had been served on this Defendant under sec. 80 of the Code of Civil Procedure, the Bengal Nagpur Railway being admittedly a state-managed Railway and entitled to such notice. The suit was "accordingly dismissed against the Bengal Nagpur Railway but the learned Munsif parsed a decree against the second Defendant, namely, the two petitioner steamer companies. Hence this Rule on behalf of the latter. 2. The main ground urged in support of the Rule is that no suit lay against the petitioners, inasmuch as the goods had not been delivered to them by the consignor for carriage, nor was it shown that the alleged loss or damage had occurred while the goods were in their custody and control., Reference was made in this connection to sec. 80 of the Indian Railways Act (Act IX of 1890), which provides, in effect, that in the case of through booking of goods for carriage over the Railways of two or more Railway Administrations, a suit for compensation may be brought either against the Administration to which the goods were delivered by the consignor or against the Administration on whose Railway the loss or damage occurred. This section, however, it will be seen, applies only to Railways, and not to a case where the goods are transported partly over a Railway system and partly over a Steamer line. I do not think, therefore, that the petitioners can derive any assistance from sec. 80 of the Indian Railways Act. 3. In deciding whether the petitioners are at all liable or not, we have in fact nothing to do with the Indian Railways Act. If they are liable, they must be liable on some other basis, and that takes us to the real point which arises in the case. 4. According to the Plaintiff opposite party, the liability of the petitioners arises from the fact that they are common carriers, subject, therefore, to the provisions of the Carriers' Act (Act III of 1865). This is an enactment which not only enables common carriers to limit their liability for loss or damage to property delivered to them to be carried, but also declares their liability for loss or damage to such property occasioned by the negligence or criminal acts of themselves, their servants or agents. 5. On behalf of the petitioners, their liability as common carriers was sought to be repelled by showing that such liability could arise only in respect of goods which had been delivered to them by the consignor himself. Reference was made to words like ''delivered to him to be carried", "delivered to such carrier to be carried", "entrusted to him for carriage", occurring in different sections of the Act. It was argued that these words implied that the delivery of entrustment was to be by the consignor, but I find no reason for reading such an implication into the provisions of the Act. All that is required to make the common carrier liable for loss of or damage to any property "delivered to him to be carried" is that the property should be so delivered, it being wholly immaterial who delivers it to him. In support of this view, reference may be made to the judgment of Rankin, C. J., in K. C. Dhar v. Ahmad Bux I. L. R. (1933) 60 Cal. 879 where the principles which determine the liability of common carriers are clearly elucidated with reference to authoritative English decisions. In support of this view, reference may be made to the judgment of Rankin, C. J., in K. C. Dhar v. Ahmad Bux I. L. R. (1933) 60 Cal. 879 where the principles which determine the liability of common carriers are clearly elucidated with reference to authoritative English decisions. I am accordingly of opinion that the petitioners, if they are otherwise liable, cannot escape their liability merely by showing that they had not received the goods at Khulna directly from the Plaintiff. 6. A further contention was raised on "behalf of the petitioners that in the plaint the Plaintiff had not made the case of liability as common, carriers against them. Referring to the plaint, the learned Advocate for the petitioners sought to make out that the case therein made was one of liability by reason of privity of contract, and not of liability independently of any contract. The liability of a common carrier, as pointed out by Rankin, C. J., in the case cited above, has no contractual basis, but arises from the nature of the obligation which a common carrier undertakes as such. 7. On a strict reading of the plaint, there may be some support for the view put forward by the learned Advocate, but if upon the facts of the case the petitioners are liable as common carriers, I do not think they can evade such liability merely by showing that the Plaintiff sought to make them liable on the basis of an implied contract. That the petitioners are common carriers is an admitted fact, and as already stated, it is also not disputed that the consignments were delivered to them at Khulna for carriage by them to Churmuguria, -delivered, it may be, by the Bengal and Assam Railway and not by the Plaintiff. That being so, I do not see why the petitioners cannot be made liable on the footing that they are common carriers, provided that the facts constituting liability are established; namely, the alleged damage and non-delivery of the goods which were entrusted to them. 8. In view of the provisions of sec. 9 of the Carriers Act, the Plaintiff is not called upon to prove negligence on the part of the petitioners. 8. In view of the provisions of sec. 9 of the Carriers Act, the Plaintiff is not called upon to prove negligence on the part of the petitioners. Sec. 9 lays down that in any suit brought against the common carrier for the loss, damage or non-delivery of goods entrusted to him for carriage it shall not be necessary for the Plaintiff to prove that such loss, damage or nondelivery was owing to the negligence or criminal act of the carrier, his servants or agents. 9. This means that in such a suit the presumption will be against the carrier, and the burden will be on him to prove the absence of negligence on his part. All that the Plaintiff in this case is, therefore, required to prove is the factum of the loss or damage in respect of which the liability of the petitioners as common carriers is said to arise. 10. As to this, the petitioners are doubtless entitled to say that such loss or damage cannot be proved with reference to the condition in which the consignments had been delivered at the station of origin. The liability of a common carrier is only for loss or damage of the goods as delivered or entrusted to him for carriage. The delivery and entrustment to the petitioners here took place at Khulna, and it is important, therefore, to know in what condition the goods were put into the Petitioners' vessels at that station. It is their definite case in the written statement that they gave delivery of the goods at the terminal station in precisely the same condition, both as to quality and quantity, in which they had received them at Khulna. If that be so, that will be a complete answer to the Plaintiff's claim against them as common carriers, and this certainly puts the Plaintiff to proof as to the condition in which the goods were made over to the petitioners at Khulna. The petitioners as common carriers cannot obviously be made liable for any loss or damage which might have occurred before the goods were actually entrusted to them for carriage. The petitioners as common carriers cannot obviously be made liable for any loss or damage which might have occurred before the goods were actually entrusted to them for carriage. Incidentally, it follows, as a result, that the petitioners as common carriers can be held liable only for loss or damage shown to have occurred over their system, and this may be regarded, in effect, as attracting to them the principle and basis of liability as embodied, in the case of Railways, in sec. 80 of the Indian Railways Act. 11. The learned Munsif does not appear to have approached the case from the correct standpoint, and has not, therefore recorded any finding on the material question on which alone the petitioners could be made liable. The learned Munsif held, rightly, that the provisions of the Carriers Act were applicable, but proceeded on the view that the contract at Chaibasa must be deemed to have been made, not only with the Bengal Nagpur Railway, but also with all the other carrying companies, including the petitioners, over whose systems the goods were to be transported. On this basis he held that all the said companies had common liability, so that it was the option of the Plaintiff to sue all or any of them, in whichever section of the journey the loss or damage occurred. 12. As I have explained, however, in order to make the petitioners liable as common carriers, it was necessary to find whether the alleged loss or damage occurred in respect of the goods as delivered to them at Khulna, and not as delivered to the Bengal Nagpur Railway at Chaibasa, but the learned Munsif came to no finding on this point. 13. I was invited by the learned Advocate for the Plaintiff opposite party to go into the evidence myself and came to a finding on the question, but I think it would be much better to send the case back to the Court below in order that the parties may have an opportunity of adducing further evidence if they deem it necessary to do so. 14. The learned Advocate for the petitioners asked for liberty to prove at the re-hearing that his clients had limited their liability as common carriers by a special contract. 1 do not think that question arises. 14. The learned Advocate for the petitioners asked for liberty to prove at the re-hearing that his clients had limited their liability as common carriers by a special contract. 1 do not think that question arises. If, as must be presumed, the loss or damage was due to negligence on the part of the petitioners or their servants or agents, the petitioners, by virtue of the express provision in sec. 8 of the Carriers Act, would not be entitled to limit their liability by any special contract. Apart from this, I do not think that the document on which the petitioners seek to rely for this purpose constitutes a special contract in their favour against the Plaintiff. 15. The case must, therefore, go back to the Court below for a finding on the question whether any loss or damage occurred to the goods as delivered to the petitioner companies at Khulna, upon taking further evidence, if necessary. This will require proof as to the condition in which the goods were received at Khulna before they were entrusted to the petitioners, and the onus of proof will be on the Plaintiff. The Rule is accordingly made absolute, and the decree of the learned Munsif against the petitioner set aside, and the case as between them and the Plaintiff is remitted to the Court below to be dealt with as directed above. Costs of the Rule as between these parties will abide the result, hearing fee being assessed at 2 gold mohurs. So far as the first Defendant, the Bengal Nagpur Railway opposite party No. 2 in the Rule, is concerned, the Rule is discharged, but I make no order as to costs in favour of this opposite party. The order dismissing the suit as against this Railway will stand. I should like to add that the question whether the two petitioner steamer companies were properly sued as one Defendant or whether notice was duly served on them, must be regarded as closed.