THADANI, C. J.: This is first appeal from the judgment and decree of the learned Subordinate Judge, L.A.D., dated 31-3-1949, by which he decreed the suit with costs against the Dominion of India .and defendants 2, 3 & 4, and dismissed it with no order as to costs, against the fifth defendant. (2) The plaintiffs brought a suit for the recovery of a sum of Rs. 7,391/7/- as compensation for the loss of 106 maunds and 20i seers of oil, out of a consignment of 675 tins of rape-seed oil weighing 302 maunds and 21 seers, delivered at the Alwar Railway Station of the B. B. & C. I. Railway, for carriage to Nalbari - a station on the B. A. Rly., in Assam, under Invoice No. 1, R.R. No. 6173, dated 31-12-1944. (3) It was the plaintiffs' case that they had pur­chased the consignment from the holder of the R. R. duly endorsed in their favour, in the ordinary course, the consignment should have reached its destination in about 10 days, but it was delayed for some 20 days, and when it reached its destination, it was found that several tins were broken; 385 tins out of 675 tins were found in good condition; 165 out of the total number of tins contained less than half the oil, and 125 tins were entirely empty. They alleged that the loss was due to gross careless-xiess, negligence and misconduct, of the Railway Administration or its servants, and vaguely alleged rough handling and pilferage; after serving the statutory notice upon the Dominion of India and upon the General Managers of the Railways con­cerned, they brought the present suit. (4) The defendants' case was that the consign­ment was booked under Risk Note "A" exonerating the Railway from all liability for loss arising from the condition of the consignment, except upon proof of misconduct on the part of the Railway Adminis­tration, or its servants. They denied that there was any misconduct, negligence or carelessness on the part of the Railway Administration or its ser­vants; the oil was packed in defective contairors in­capable of withstanding ordinary transport by Rail. The execution of Risk Note Z was admitted, but it was contended that their liability was to be .governed by the contents of Risk Note A, having regard to the fact that the entire consignment was delivered to the plaintiffs. The execution of Risk Note Z was admitted, but it was contended that their liability was to be .governed by the contents of Risk Note A, having regard to the fact that the entire consignment was delivered to the plaintiffs. (5) According to the defendants, Wagon No. 15054 in which the consignment was loaded was dis­covered to have developed hot axle on its arrival at Cawnpore Anwarganj, as a result of which the consignment was transhipped to Wagon No. 24438; it was then found that 10 tins were entirely empty, and 3 tins half empty; the new wagon was made over by the O. T. Rly., to B.A. Rly., at Katihar on 10-1-1945; it reached Lalmanirhat on 12-1-1945 and was found to be damaged; it took 5 days to repair the wagon; while the wagon was being repaired; the Railway Administration received instructions to give preference to Military Specials in the matter of clearing the traffic; in giving effect to these instructions, the wagon in question suffered, a fur­ther detention of 10 days at Lalmanirhat. (6) On the pleadings, the trial Court framed the following issues: 1. Whether legally valid notices under Section 77 of the Indian Railways Act and under Section 80 of the Code of Civil Procedure were served on the defendants. 2. (a) Can the plaintiffs maintain this suit? (b) Whether the defendants are estopped from raising this plea of maintainability in view of their having given part-delivery of the consignment ia question to the plaintiffs? 3. Whether the defendants are exonerated from all liabilities in view of the terms of contract em­bodied in the Risk Notes "A" and "Z", as alleged in the W. S.? 4. Whether the loss of the goods was due to the gross carelessness or misconduct of the servants of the defendants, as alleged in the plaint? 5. What is the value of the goods alleged to have been lost? 6. To what relief, if any are the plaintiffs en­titled? (7) The only issues argued before us were the 3rd and 4th issues bearing upon the liability of the defendants. On the 3rd and 4th issues, the trial Court found that it was not proved that Risk Note Z relates to the consignment, taut came to the conclusion that misconduct on the part of the Railway Administration or its servants had been established. On the 3rd and 4th issues, the trial Court found that it was not proved that Risk Note Z relates to the consignment, taut came to the conclusion that misconduct on the part of the Railway Administration or its servants had been established. (8) In dealing with the 4th issue, the learned trial Judge stated: "The learned pleader for the defendants urged that when goods are consigned for carriage by a Railway under a Risk Note and are lost or damaged in transit, it lies upon the plaintiffs claiming damages against the Railway to show that the loss or damage was occasioned by the misconduct of the Railway people. In my opinion, it is not al­ways possible for plaintiffs to prove misconduct, and the whole thing must depend on the merita of the case." (9) Manifestly the proposition so stated is quite erroneous. The burden of proving misconduct within the meaning of Risk Note "A" is always upon the plaintiff alleging misconduct. If a plain­tiff, upon whom the burden of proving misconduct lies, relies upon circumstantial evidence, he must satisfy the Court that it amounts to misconduct within the meaning of Risk Note A. This erroneous approach to the determination of the liability at the Railway Administration, when the consignment was booked under Risk Note A, has resulted in an erroneous judgment. (10) The learned Judge has relied upon the evi­dence of P. W. 2 who had stated: "I was present when these goods were booked. The tins were all new and quite good. I was sent to see that good tins are used. These were not delivered in the condition they were sent." There are two serious objections to the acceptance of this evidence. The tins were all new and quite good. I was sent to see that good tins are used. These were not delivered in the condition they were sent." There are two serious objections to the acceptance of this evidence. Firstly, it seeks to contradict the terms of Risk Note A, and secondly, the person who booked the consignment and executed Risk Note A has not been examined, assuming that he could have been permitted to contradict the terms and conditions of Risk Note A. (11) Again, the observation of the learned Judge, namely, "The plaintiffs are traders and they brought the articles for sale on profit and, as such, it is too much to think that they would use bad tins or even be careless to see that their article would be lost by leakage, etc.; the opposite appears to be the more reasonable view." is based upon the supposition that the plaintiffs had booked the consignment, - which is not the case. (12) The next two statements of the learned Judge, to which serious exception can be taken, are these: "Although Ext. C (Risk Note A) contains an admission of defects in the tins, it has been shown now that the tins were packed quite well. The burden, therefore, shifts on to the defendants to prove absence of negligence or misconduct.'........ "When goods are not properly packed, the Rly. Company ought to refuse to accept them for car­riage.". We have already observed that the learned Judge was wrong in relying upon the evidence of P. W. 2. We are unable to discover any justification for the 2nd statement. "When goods are not properly packed, the Rly. Company ought to refuse to accept them for car­riage.". We have already observed that the learned Judge was wrong in relying upon the evidence of P. W. 2. We are unable to discover any justification for the 2nd statement. There is no obligation upon a Railway Administration to refuse to carry goods if the consignor elects to have them called under (Risk Note A. (13) Apparently the learned Judge, when relying upon the case reported in 'Surat Cotton Spinning and Weaving Mills Ltd. v. Secy, of State', AIR (24) 1937, P. C. 152, has omitted to notice that the consignment in that case was carried under Risk Note B, equivalent No. Z, and not under A. The obligation of the Railway Administration to lead evidence as to the manner in which the consign­ment was dealt with in transit arises from the terms of the proviso to Risk Note B, and not from the terms of Risk Note A. It is to be observed that Risk Note B refers 'inter alia' to the consignment "packed 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." The plaintiffs have nowhere alleged that there are no instructions laid down in the Tariff as regards the consignment in question. It is only when Clauses (a) and (b) of Risk Note B apply to the facts of a particular case, that the Railway Ad­ministration is bound to disclose to the consignor tow the consignment was dealt with throughout the time it was in its possession or control. (14) In respect of a consignment carried under Risk Note A, none of the Clauses (a) or (b) of Risk Note B or Z have any application, if the consign­ment is delivered at its destination, and the loss or damage is due to the condition in which the consignment was packed. In the present case, the consignment consisting of 441 tins was duly deliver­ed at destination, but some of the tins were found wholly empty and some only half full. In other words, this is not a case of non-delivery of the whole or one or more packages forming part of the consignment. In the present case, the consignment consisting of 441 tins was duly deliver­ed at destination, but some of the tins were found wholly empty and some only half full. In other words, this is not a case of non-delivery of the whole or one or more packages forming part of the consignment. Clause (a) of Risk Note B does not apply to a case where there is short delivery of the contents of a particular consignment booked under Risk Note A, and the short delivery is due to defective packing. Similarly, Clause (b) of Risk note B refers to a package or packages of the con­signment properly packed. 'Pilferage' referred to Clause (b) is to be pointed out to the servants of the Railway Administration on or before delivery. Nowhere has it been alleged in the pleadings in case before us that the suspected pilferage was pointed out to the servants of the Railway Adminis­tration on or before- delivery; a vague allegation was made in the Written Statement that the con­tents of some of the tins had been pilfered. (15) We wish to point out to the learned Judge that he would be well advised to grasp the facts of a particular decision when he wishes to rely upon it. Had the learned Judge read the facts of the ease reported in 'Surendra Lal v. Secy, of State', AIR (5) 1918 Cal 892 (2), he would have noticed that the goods in that case were not carried under any Bisk Note. For the same reasons, the cases reported in 'Rivers Steam Navigation Co. v. Choutmull Doogar', 26 Cal 398; 'Governor-General of India in Council v. Kabir Ram', AIR (35) 1948 Pat 345, have no application. (16) The learned Judge has commented upon the circumstances that 10 tins were found entirely empty and 3 tins half empty at Cawnpore, in these terms: “This at least ought to have opened the eyes of the Railwaymen to take all actions like an ordinary man of prudence dealing with his own goods." There might have been justification for this com­ment if the Railway Administration had carried the goods without exonerating themselves from lia­bility in accordance with the terms of Risk Note A. The fact that 10 tins were found empty and 3 tins half-empty at Cawnpore, must be fairly at­tributed to leakage as a result of the bad condition of the tins. There is no obligation upon a Railway Administration, when a consignment is booked under Risk Note A, to prevent leakage of the contents in transit. We have not been referred to any rule framed under the Railways Act which imposes an obligation on the Railway Administra­tion to prevent leakage of the contents of a consign­ment booked under Risk Note A. In the absence of any such obligation on the part of the Railway Ad­ministration or its servants it is impossible to regard any leakage in transit from a consignment booked under Risk Note A, as due to misconduct or I negligence or carelessness on the part of the Railway Administration or its servants. (17) The case reported in 'Jankidas Marwari v. Governor-General of India in Council', AIR (33) 1946 Pat 338, upon which Mr. Gupta for the res­pondents has relied, is not of any assistance to the respondents. The question of onus in that case did not arise as both parties had led evidence.. In the Patna case, the consignment consisted of ten bags of betel-nuts, and only one bag out of the ten was stated to be in torn condition, and the contents of which were falling out. A note was made by the Assistant Station Master to the effect that he had received such a note from the Guard-in-charge, but the Guard did not produce any such note. In other words, the learned Judge came to the con­clusion that although Risk Note A had been exe­cuted, it did not truly describe the condition in which the consignment was packed. (18) The facts before us are entirely different. The original consignor who booked the consignment in defective tins, has not been examined to say that the tins were in good condition, and that there was no likelihood of the contents leaking out. The case reported in 'B. N. Rly. Co. v. Moolji Sicka & Co.', A I R (17) 1930 Cal 815 has no application as the Risk Note involved was Risk Note B, and not A. In B. & N. W. Rly. v. Munna Lal Bisham-bhar Nath', A I R (11) 1924 All 760, the point for consideration was - whether the loss arising from delay in the delivery of the consignment was covered by Risk Note A. The claim in the case before us is not one for compensation for delay in the delivery of the consignment. v. Munna Lal Bisham-bhar Nath', A I R (11) 1924 All 760, the point for consideration was - whether the loss arising from delay in the delivery of the consignment was covered by Risk Note A. The claim in the case before us is not one for compensation for delay in the delivery of the consignment. Moreover, the delay in this case has been adequately explained by the Railway authorities, and no attempt was made by the respondents to prove that the cause or causes of delay as given by the Railway Adminis­tration were not true. Nor has the case reported in B. N. Rly. Co. v. Dason Dhimal Bishambar', AIR (15) 1928 Lah 166, any application to the fact of this case. The question there was also whe­ther loss due to delay in the arrival of the consign­ment was covered by Risk Note A. In B. B. & C. I. Rly. v. Bajnagar Spinning etc., Co. Ltd. AIR (17) 1930, Bom 129, the Risk Note involved was B, and not A. Similarly in the case reported in. "Governor-General of India in Council v. Jesraj', .AIR (37) 1950 Assam 175, the Risk Note involved was B, and not A. The case reported in 'Salamat Ullah v. Governor-General in Council', AIR (38) 1951 All 438 has also no application to the facts of the case before us. (19) That the tins were leaking, is not only supported by what is stated in Risk Note A, but also by the fact that at Cawnpore the contents of 10 tins had completely leaked out. The allegation in the plaint that the loss was due to pilferage, does not deserve any consideration for the short reason that the alleged pilferage was not brought to the notice of the Railway Administration on or before taking delivery of the consignment. With .all respect, we are unable to share the view of Mustaq Ahmad, J., expressed in a case reported in AIR (38) 1951 All 438, namely, that "When the goods are found missing in the transit, it is the Railway Company which would have special knowledge of the manner in which the goods got missing in the transit." The word 'missing' is used by the learned Judge with reference to short delivery of the contents. Risk Note A expressly refers to leakage. Risk Note A expressly refers to leakage. The lia­bility of the Railway in such a case, we think, would be governed by the terms of Risk Note A, and not by the terms of S. 106 of the Indian Evi­dence Act. (20) The case reported in 'Governor-General of India in Council v. Firm Bishundayal Ram Gauri Shankar', AIR (35) 1948 Pat 48, far from assisting the respondents, assists the appellants. Meredith, J., observed: "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 b-.en 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." 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." The last 3 lines refer to the fact that the suit in that case was brought not by the consignor but by the vendee of the consignor, as in this case. (21) It is unnecessary to express our view in this case as to whether a Railway Administration can resist the claim of a plaintiff who is not the consignor, but a vendee of the consignor. Meredith, J. also observed: "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 A. 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." (22) The learned Advocate for the respondents relied upon this observation, but far from assisting the respondents, it assists the appellants. Mere­dith, J., has expressly stated - once the loss is due to any of the three conditions described in the Risk Note, namely, damage, leakage or wastage, it is for the plaintiff to establish that the loss of the tins must have resulted from pilferage. As we have observed, before the plaintiffs could prove pil­ferage, they had to show that the suspected pilfer­age was brought to the notice of the Railway Administration on or before, taking delivery. Admit-i tedly this was not done. (23) In 'Governor-General in Council v. Gopali', AIR (31) 1944 Oudh 81, there was entire loss of a part of a consignment of 150 dholaks, and 50 dholaks were broken into splinters. Having regard to the fact that there was entire loss of a part of the consignment, the liability of the Railway was not governed only by Risk Note A. In the case before us, the entire consignment was duly delivered to the plaintiffs - only the contents of some of the tins were missing, and some tins were found to be half-empty. The loss, therefore, must 'prima facie' be attributed to the condition of the _tins - a circumstance which exonerates the Railway Ad­ministration from liability unless misconduct is proved. (24) Mr. Medhi for the appellants has relied upon a decision of the Patna High Court reported in 'Governor-General in Council v. Motilal Kajriwall', AIR (32) 1945 Pat 159, in which a delay of over 10 days in the arrival of the consignment was held not to amount to misconduct within the meaning of the word 'misconduct' in Risk Note A. It was observed: "It was suggested that while the train carrying the consignment in question was standing at the Dighwara Railway Station for about 10 days due to excessive rain, the Station-Master should have taken care to protect the wagon in question, especi­ally in view of the pleading by the Railway Com­pany that the damage occurred to the wagon bet­ween Dighwara Railway Station and Sonepur Rail­way Station. I fail to appreciate what steps the Station-Master could have taken which he re­frained from doing. He could not be expected to open the lock and break the seal on the wagon to see if the consignment was being damaged by ex­cessive rain. If he had done that, perhaps he would have been guilty of breach of certain rules of the department. He could not be expected to open the lock and break the seal on the wagon to see if the consignment was being damaged by ex­cessive rain. If he had done that, perhaps he would have been guilty of breach of certain rules of the department. During the incessant rains, he could not be expected, by any means, to open the wagon, because that would have perhaps accele­rated the damage." (25) In the case before us, the delay in forward­ing the consignment from Lalmanirhat to its des­tination was due to priority ordered to be given to the Military Specials. No attempt was made by the plaintiffs to prove that the explanation given by the Railway was false; nor did they attempt to prove that the explanation given by the Railway for the delay of five days during which the wagon was being repaired, was false. We do not' think, therefore, that the delay in this case can be pro­perly regarded as misconduct on the part of the Railway Administration or its servants. (26) The case reported in 'Governor-General in Council v. Jamunadas Agarwala', AIR (36) 1949 Pat 119, is somewhat similar to the facts present before us. In that case, the plaintiff consigned certain oil tins under Risk Notes A and B, as in this case. The tins were received at the place of destination in a leaking condition resulting in loss to the plaintiff. It was found that no caution labels were fastened to the wagon containing the consignment. On the evidence on the record, it could not be said whether the loss was due to the defective shunting or defective packing and the defective containers, or whether it was due to both contributing to the result; the plaintiff had not discharged the burden which admittedly lay on him of establishing 'misconduct' on the part of Railway Administration. (27) In the case reported in 'M & S M Rly. Co. Ltd. v. Haji Latif Abdullah, AIR (22) 1935 Cal 809, "Certain goods which were packed defectively were sent under Risk Note A. Some of the goods were damaged by wet and it was not proved that the goods got wet owing to the misconduct of the Railway." The Railway Administration was exonerated from liability by reason of the execution of Risk Note A. In another case reported in M & S M Rly. Co. Co. Ltd. v. Ravi Singh Deep Singh & Co.', A I B (22) 1935 Cal 811, Lodge, J., referred to a case reported in M & S M Rly. Co. Ltd. v. Sundarjee Kalidas', 60 Cal 993, in which the learned Judge had observed: "Misconduct is not necessarily established by, proving even culpable negligence. It is something opposed to accident or negligence and is the inten­tional doing of something which the doer knows to be wrong or which he does recklessly not caring what the result may be." C8) Mr. Gupta was unable to refer us to any evidence which could be regarded as amounting to misconduct in terms of the decision cited in 60 Cal 996. There is yet another decision reported in 'Ralliaram Dingra v. Governor-General of India in Council', AIR (33) 1946 Cal 249 in which Gentle, J., delivering the judgment of the Division Bench, observed: "In my opinion, for an act to amount to mis­conduct, there must be a greater degree of wrong than is required for negligence. Misconduct is something in the nature of improper behaviour and is not merely either wrongful commission or wrong­ful omission. An act of misconduct can well be, and in most cases probably is, negligence, but a negligent act is not by itself misconduct. It seems to me that misconduct is the genus and negligence a species of the genus." "The observation of Hilton, J., in 'Secy, of State v. Allah Ditta Mahomed Amin', A I R (17) 1930 Lah. 120, appears in point. Mr. Gupta's sole con­tention was that the delay in detaining the con­signment at Lalmanirhat amounted to misconduct. We do not think that delay can ever be properly regarded as misconduct unless the delay is delibera­tely caused by the Railway Administration or its servants. (29) In the case before us, there is no evidence whatsoever that the Railway Administration or its servants were responsible for deliberately causing the delay in forwarding the consignment from Lalmanirhat. The case reported in 'Dominion of India v. Charu Prosad Bam', AIR (36) 1949 Cal 679, relied upon by Mr. Medhi, is of considerable assistance. In that case, a consignment of 250 bags of mustard seed was booked on the 1st of July, 1948 at Birsinghapur, a station on the Bengal Nagpur Railway Administration, for carriage to and delivery at Baniganj, a station on the East Indian Bailway Administration. Medhi, is of considerable assistance. In that case, a consignment of 250 bags of mustard seed was booked on the 1st of July, 1948 at Birsinghapur, a station on the Bengal Nagpur Railway Administration, for carriage to and delivery at Baniganj, a station on the East Indian Bailway Administration. The consignment was booked under Bisk Notes A & B, as in this case. On unloading at Baniganj on llth July 1946, it was found that 7 bags out of the 250 bags had been cut and the total shortage in these bags amounted to 12 maunds and 36 seers. Das Gupta, J., observed: "It was argued by the learned Advocate that when it is a case of pilferage, the question whether it was properly packed or not, can hardly be of any consequence. I am unable to agree with him. In my opinion, the question whether the package was properly packed or not, is of great importance for a case of pilferage. Obviously it may be very much easier to remove certain things from a package which is defectively packed than from one which is properly packed. Be that as it may, I do not think that it is possible for Courts to make new contracts for parties. When the parties entering into a contract had themselves in no uncertain terms included the requirement of proper package h proviso (b), it is not open to the Court to disregard it. I hold, therefore, that before the case an be considered to be within the proviso (b), the package from which pilferage has taken place, must be shown to be property packed." With respect, we agree with the observations of Das Gupta, J. (30) Our conclusion then is that, having regard to the presence of Risk Note A, the plaintiffs in this case could have succeeded only if they had proved misconduct on the part of the Railway Administra­tion or its servants. As they have failed to prove misconduct, the plaintiffs' suit must fail. (31) The result is that the appeal is allowed, and the plaintiffs-respondents' suit will stand dis­missed with costs throughout. (32) DEKA, J.: I agree. D.H. Appeal allowed.