Judgment K.Ahmad, J. 1. This is an appeal by the plaintiffs who constitute a joint Hindu Mitakshara family and run a Mill in the name and style of The Rajput Rice Mills at Jainagar in the District of Darbhanga. It arises out of a suit for recovery of a sum of Rupees 24698-4-6 as per account given in Schedule III-IIID of the plaint by way of loss which the plaintiffs claim to have suffered while they were in possession of a large quantity of paddy as bailee. This loss, as averred in the plaint, was due to an unprecedented flood which visited Jainagar in 1948 on 2nd and 3rd September and as a result thereof the lower layer of the paddy bags numbering about 1541, which were stocked in godowns, were got soiled and damaged with the result that when milled into rice, they did not give the quantity which they should have yielded as rice. Along with this item of loss the appellants in this Court have also pressed their claim in respect of three other items, namely, (1) godown rent, (2) driage and (3) price of gunny bags. 2. The facts of this case are substantially admitted between the parties and the controversy between them is confined mainly to two points only, namely, (1) whether the flood referred to above was of a character of vis-major and, therefore, the plaintiffs are entitled to compensation for the loss suffered as a result thereof and (2) whether the claim advanced by the plaintiffs is consistent with the terms of the contract arrived at between the parties. 3. The facts admitted are that on 1-5-1946, the Government entered into various contracts with a number of Rice Mills including that of the plaintiffs for purchasing paddy on their behalf and milling the same into rice and thereafter to supply the milled rice to the Government at the rate of 65 maunds per 100 maunds of paddy. In pursuance of this contract the plaintiffs, under various systems of procurement of paddy, finally received on behalf of the Government 39442 maunds and 39 seers of paddy. It is not denied that this entire amount was the property of the Government and that the same was stored with the plaintiffs in the capacity of a bailee. In pursuance of this contract the plaintiffs, under various systems of procurement of paddy, finally received on behalf of the Government 39442 maunds and 39 seers of paddy. It is not denied that this entire amount was the property of the Government and that the same was stored with the plaintiffs in the capacity of a bailee. According to the contract referred to above the rice to be supplied by the plaintiffs from 39442/ maunds and 39 seers of paddy was 25672 maunds and 37 seers, out of which, it is conceded that the) plaintiffs did supply to the Government 24410 maunds and 30 seers of rice out of the stock of paddy milled and about 105 maunds from their own stock making a total of 24515 maunds and 30 seers of rice, and thus about 1157 maunds and 7 seers of rice was still left due from the plaintiffs. Their case before the Government was that due to the damage caused to the paddy as a result of the flood referred to above, their quality and quantity deteriorated and so the rice yielded after milling from them was not in the ratio of 65 maunds of rice from 100 maunds of paddy but much less than that and it was that which gave rise to the deficit of 1157 maunds and 7 seers of rice. In support of their case the plaintiffs placed reliance mainly, apart from the oral testimony, on the two reports submitted by two officers of the Department, namely Exts. 5(a) and A, as also on their own account books which have been exhibited in this case as Exts. 1(c) and (d). Ext. 5 (a) is a report submitted by the Marketing Inspector and is dated 12-9-1946, and Ext. A is a report submitted by the Regional Grain Supply Officer, Darbhanga, and is dated 3-4-1947. The Government, however, on a consideration of these materials, came to the conclusion that the plaintiffs! were entitled to a remission of only 68 maunds and 10 seers of rice due to flood and about 67 maunds and 27 seers due to driage making a total of 135 maunds and 37 seers with the result that after giving a remission of the above quantity of rice, about 1021 maunds and 10 seers were still found due from them. The price of this was deducted by the Government from the final account, which was adjusted between the parties on 3rd August 1947. Hence the suit was instituted by the plaintiffs for the realisation of the price of this quantity of rice as also for the loss incurred by them on account of three other items referred to above. The trial court in substance, on hearing the parties, accepted the defence set up by the Government and decreed the suit in part only for a few nominal items. Therefore, the plaintiffs have now come up in appeal to this Court. 4. In support of this appeal the main point raised by Mr. B. C. De, appearing for the appellants, is that the flood was of a nature of vis major and that there was no negligence on the part of the plaintiffs as a bailee in the process of storing the paddy with them and as such they are entitled to the entire loss caused to their paddy as a result thereof. 5. It is not denied that in the year 1946 flood visited Jainagar twice, the first in the month of July and the second in the month of September, As for the flood which came in the month of July, it is the admitted case of the parties that the same was not in any sense a serious flood. But, for the other, which visited the town in the month of September, the evidence on record of this case is conclusive that the same was of an unprecedented character. The Marketing Inspector, in his report about this flood, dated 12-9-1946, says: "This time the flood was of a very severe nature. The water rushed through the market on 2nd and it was normal, but on the 3rd evening jt rose in such a way that it has beat the records of the past. No such high level flood was ever experienced of this place in the past." Further, while dealing with the details of damage caused to the Rajput Rice Mill as a result thereof, he has given the following details: "(1) In Karee godown attached to the machinery room, the mill had 967 bags boiled paddy and 744 bags of dried paddy. One challee of the brigs were under water and it remained for some time and as such 182 bags were badly affected. One challee of the brigs were under water and it remained for some time and as such 182 bags were badly affected. The bags are completely damaged and the contents are also discoloured. These are being removed for drying purposes. The mill had no space to dry up the affected stocks and as such some delay has been done. Wet paddy is being dried on the roof of the godown." (2) In the big pacca godown west of the mill there were 7000 bags and one layer of the bags were under water. This godown is the best and is situated on a very high level, but still water rushed into it. One challee of bags became wet, but as the flood water could not stay long and so the damage caused is estimated to be slight. The number of total bags affected come to 700 bags. In order to take out these affected bags the whole lot of bags have got to be removed and as such there will be heavy exepenses." Finally, he concluded his report by saying; "In all the total number of bags affected by the flood water comes to 1312 bags out of which 250 bags in the southern godown are less affected and the rest 1062 bags are badly affected and it is expected there will be loss both in quantities and in quality. The Mill has not got sufficient space to dry up the wet stocks quickly and I am afraid some delay will be caused and as such more deterioration will be caused. I have instructed the mill to take the earliest opportunity to dry up the wet stock." 6. This report, as is evident from its date, was submitted by the Marketing Inspector soon after the flood. Long after, there was another report submitted by the Regional Grain Supply Officer, Darbhanga. According to that report also, the flood was of an unprecedented character. He has, however, in his report stated as follows: "The September flood in Jainagar was rather extensive although it did not last long. The mills and the agents got opportunity to report extensive damages. Actual enquiry held by me within a week of the flood showed that the reports were mostly exaggerated. It is a fact that flood water had rushed into most of the mills and godown. The mills and the agents got opportunity to report extensive damages. Actual enquiry held by me within a week of the flood showed that the reports were mostly exaggerated. It is a fact that flood water had rushed into most of the mills and godown. The enclosed statement will show an approximate quantity of paddy and rice that actually got flood affected. The stock was however quickly dried up and was either despatched as paddy or milled into rice later on." According to the statement referred to in his report, the paddy which was adversely affected by this unprecedented flood could at best be only 1500 maunds and that the plaintiffs did not suffer any other loss because of the unprecedented flood. The trial court, in assessing this part of the case. has mostly relied on the report of the Regional Grain Supply Officer, Darbhanga. In the opinion of the trial court, the report submitted by the Marketing Inspector was not worthy of acceptance. Further, in the opinion of the trial court, the flood was not of the character of vis major and as such the plaintiffs were not entitled to any remission and what the Government allowed to them was only as a matter of grace and not as of right. 7. In my opinion, on the state of facts that we have, got in this case, it is difficult to sustain any of these two findings. I have already quoted above the reports submitted by the two officers of the Department wherein both of them have admitted, that the flood was of an unprecedented character and this is fully supported by the oral evidence adduced by the witnesses of both the sides. That being so, it is difficult to agree with the finding given by the trial court that the same was not of the character of vis major. The trial court, in corning to a contrary conclusion, has been misled mostly by the consideration as to what care did the plaintiffs take after the flood receded and also by the consideration of the fact that it was not impossible after all to resist the damage by the flood on the facts stated in this case. What is vis major is clearly stated in the cases of Nitro Phosphate and Odhams Chemical Manure Co. V/s. London and St. Katharine Docks Co., (1878) 9 Ch. What is vis major is clearly stated in the cases of Nitro Phosphate and Odhams Chemical Manure Co. V/s. London and St. Katharine Docks Co., (1878) 9 Ch. D. 503, Nugent V/s. Smith. (1876) 1 CP D 423 and Province of Madras V/s. I. S. and Co. Machado, (S) AIR 1955 Mad 519 . In the last of these decisions their Lordships of the Madras High Court, relying on the case reported in (1876) 1 CPD 423, have observed that the expression act of God is a mere short way of expressing the proposition that a common carrier is not liable tor any accident as to which he can show that it is due to natural causes directly and exclusively, without human intervention, and that it could not have been prevented by any amount of foresight and pains and care reasonably to be expected from him. Here as the facts establish, the flood was of an unprecedented character and if the possibility of such a flood was beyond the range of human calculation, it is difficult to hold, relying on the definition given above, that it was not of a character of vis major. It is one thing to say that a place during some particular months of the year is visited by flood and it is another thing to expect that the flood which visited the place was of such a character that was never experienced previously. If the flood of that character was never experienced earlier, no reasonable calculation could be made as to the possible dangers arising therefrom and as to the remedy which could be taken against it. Further, here, there is not an iota of evidence to suggest that though something could be done by the plaintiffs, which would have been sufficient to resist the damages caused by the flood, but still the same was not done. I, therefore, hold that the flood which, in this case, visited the town was of a character of vis major. And, so far as the decision in the case of Gurudit Singh v. Secretary of State, AIR 1931 Lah. I, therefore, hold that the flood which, in this case, visited the town was of a character of vis major. And, so far as the decision in the case of Gurudit Singh v. Secretary of State, AIR 1931 Lah. 347, is concerned, which has been referred to by the trial court in the judgment under appeal, that, on the facts of the case, has not the least application here and it does not lay down any general formula for defining as to when a flood can be of a vis major character. After all, whether it is vis major Or not depends much on the facts and circumstances of each case. Here, as I have already stated, there is no doubt that the flood was of a vis major character. That being so, the damage that was done to the paddy as a result thereof cannot be attributed to any negligence on the part of the plaintiffs and in law that being the effect of vis major, they are entitled to the compensation for the loss which they suffered because of that flood. 8. The next question that arises for consideration is as to what was the actual damage caused by the flood in this case. In my opinion, in assessing the damage, the report in this case submitted by the Regional Grain Supply Officer, Darbhanga, dated 3-4-1947, cannot be much relied upon. Firstly, the report is a very belated one. The flood had visited the town on the 2nd and 3rd of September and this report, as it shows, was prepared long thereafter, on 3-4-1947. It is true that in the report it has been stated by the Regional Grain Supply Officer that the actual enquiry had been held by him within a week of the flood, but, unfortunately, there is nothing on the record to give support to this statement. Further, according to him, the figures submitted by him along with the report had been originally as is stated in his evidence, noted in pencil. But, here also this statement is not supported by any evidence. On the contrary, his evidence that he does not know as to where that note is, makes the situation a bit more uncertain. Further, according to him, the figures submitted by him along with the report had been originally as is stated in his evidence, noted in pencil. But, here also this statement is not supported by any evidence. On the contrary, his evidence that he does not know as to where that note is, makes the situation a bit more uncertain. Lastly, his report, read as a whole along with the chart that he has submitted as a part of it, is a clear indication that his entire assessment was more or less founded on approximate basis and on what he had heard from others. It is not denied that the paddy had been stocked in bags. Therefore, normally his assessment should have been based on the number of bags and not in terms of weight. He does not claim that he had opened all the bags and had got them weighed again. Further, in the chart itself the has clearly stated that "the shortage shown in col. 14 is approximate". For these reasons, I think, the trial court is wrong to lay much emphasis of the correctness either of this report or the chart sent along with it by the Regional Grain Supply Officer. On the contrary, I think, the report submitted by Marketing Inspector is comparatively much worthy of reliance. The reason given by the trial Court for discarding this report appears to me to be based more on conjecture. For example, in the report the marketing Inspector has mentioned the exact number of bags which, according to him, had been damaged by the flood. For that reason the trial Court has attacked the report because in its opinion there is no mention made in the report that the Marketing Officer had actually counted the bags. If the report is carefully read, it unequivocally suggests that what he wrote was based on counting and not on conjecture. The second objection relied upon by the trial court as against this report is that there is no evidence on record to show that the plaintiffs thereafter made any claim of 1541 bags before Mr. K. P. Ojha, who, as he claimed, had visited the place a week thereafter. In my opinion this ground also is rather unsubstantial. The second objection relied upon by the trial court as against this report is that there is no evidence on record to show that the plaintiffs thereafter made any claim of 1541 bags before Mr. K. P. Ojha, who, as he claimed, had visited the place a week thereafter. In my opinion this ground also is rather unsubstantial. If the Marketing Officer had already reported the matter to the authorities concerned and if therein the number of bags which had been damaged was accepted as 1541, there was no occasion for the plaintiffs -to file again a regular application in support thereof. Therefore, the mere absence of an application to that effect cannot take away the weight of the report which was submitted by the Marketing Officer. Lastly, the trial court has referred to Ext. 6 series as fabricated documents. They are rokar bahis and therein 1541 bags of paddy are shown as damaged as a result of the flood. In doing this the trial court has relied on the admission of Sat Naravan Mandal (P. W. 16) to the effect that "the bahis produced in this court were not shown to Mr. K. P. Ojha at the time of final account," but, in my opinion, the trial court failed to take into consideration the other part of the accounts, namely, Exts. 1(c) and 1(d). They are the stock registers wherein the entire income and disbursement of paddy are shown date by date. These stock registers (Exts, 1c and 1d) on each page bear the stamp and signature of some officer of the Department. Further, they show that from time to time they have been checked as well by them. It was unfortunate that these documents, Exits. 1(c) and 1(d), were not taken into consideration at all by the trial court in assessing this part of the case put up by the plaintiffs though in calculating the quantity of paddy that was received by them, the trial court has placed full reliance on them. In these stock registers it is clearly stated as to what quantity of paddy was received from time to time and how the same was disbursed thereafter. 3 have carefully gone through these stock registers. In these stock registers it is clearly stated as to what quantity of paddy was received from time to time and how the same was disbursed thereafter. 3 have carefully gone through these stock registers. In my opinion, they seem to have been kept in regular course of business and show the actual state of affairs that happened in the course of the receipt and disbursement of the stock of the Government. Further, they get full support from the report submitted by the Marketing Inspector which as already stated above, is worthy of reliance. That being the position, I think that the damage caused to the paddy as a result of the unprecedented flood was not only to the tune of 135 maunds and 37 seers but, further to the tune of 1021 maunds and 10 seers. In other words, the case of the plaintiffs that in all the damage that was caused was, in terms of rice, to the tune of 1157 maunds and 7 seers, is correct, and that they are entitled to be compensated to the extent of the price of that amount of rice as claimed by them in the plaint. 9. The learned Government Pleader has, however, in the course of argument before us, tried to resist this part of the claim made by the plaintiffs not only on the grounds which had been advanced on behalf of the State in the court below, but, also on a new ground, namely, on the ground of waiver, The contention raised by him, in support of this part of the case, is that the plaintiffs, on the basis of the final adjustment of accounts made on 3-8-47, accepted the entire due which accrued in their favour and in support thereof gave receipts also through their agent, Umapati Das, (P. W. 14). In the final account, which was prepared on 3-8-47, the last few lines were written as; "Final bill passed for Rs. 4279-6-0 (Rupees four thousand two hundred seventy-nine annas-/6/-) in full and final payment," It is not denied that this amount of Rs. 4279-6-0 was received by Umapati Das on behalf of the plaintiffs. There is no evidence, however, to show that he accepted that amount in full and final satisfaction of the entire bill. 4279-6-0 (Rupees four thousand two hundred seventy-nine annas-/6/-) in full and final payment," It is not denied that this amount of Rs. 4279-6-0 was received by Umapati Das on behalf of the plaintiffs. There is no evidence, however, to show that he accepted that amount in full and final satisfaction of the entire bill. Further, I cannot help observing that the case of the Government in the course of the litigation has not only been badly neglected but thoroughly spoiled. If, in fact, the Government was serious about this part of the case on the ground of waiver, it should have been pleaded in the plaint and an issue framed at the trial. Unfortunately what is stated in the plaint and the issues raised do not in the least give indication to the fact that the question of waiver was ever raised on the side of the Government in the course of the trial in this case. Therefore, it is now rather too late for the respondents to take up this plea in support of the judgment under appeal. Mr. De in this connection has rightly drawn our attention to the decision in the case of Siddik Mohmed Shah V/s. Mt Saran, AIR 1930 PC 57(1). Therein, their Lordships of the Privy Council while dealing with this aspect of the case, has observed that where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward. Here, not only that the point wa not raised at any stage of the trial, but that the pleadings are completely silent about it. Therefore, apart from the paucity of evidence, as already stated above, this aspect of the argument has to be dismissed on the ground of want of pleading alone. 10. *********** 11. Now, I come to the other three items raised on behalf of Mr. De in support of this appeal, The first relates to the godown rent. In this connection my attention has been drawn to the rules (Ex. 11) which are printed at page 1 part III of the paper book. Paragraph 2 therein read as follows: "Storage charge and shortages. De in support of this appeal, The first relates to the godown rent. In this connection my attention has been drawn to the rules (Ex. 11) which are printed at page 1 part III of the paper book. Paragraph 2 therein read as follows: "Storage charge and shortages. If these arrangements in any case do not prove possible, Regional Officer may allow 6 pies storage charge per month or part of a month for every maund of rice left in the hands of the mills or purchasing agents after the expiry of 2 months from the date of milling or purchase. No shortages will be allowed for storage for a total period of 3 months but for every additional month of delay in taking delivery the Regional Officer may allow 1/2 per cent shortage per month subject to a maximum of 3 per cent." The admission of Mr. K. P. Ojha, who was examined on commission on behalf of the Government in this connection, is as follows: "Godown rent was 9 pies per bag after the expiry of two months, from the date of the last purchase. On this basis the plaintiffs have been given godown rent. All purchasing agents have been given the same godown rent and shortage." The trial court has accepted this part of the statement made by Mr. K. P. Ojha and has assessed the claim of the plaintiffs on this account on that basis. Mr. De has, however, contended that though the court was right in assessing the godown rent at the rate of 9 pies per bag, as stated in the evidence of Mr. Ojha, but was wrong to assess it from the date of the last purchase. On the contrary, according to Mr. De, the trial court should have calculated the total rent for the entire stock which had been admittedly purchased on various dates by assessing the rent of each lot separately and that from the date of its own purchase and not from the last date of purchase for the entire stock. In my opinion, this contention advanced by Mr. De is not at all substantial. If reliance has to be placed, in support of this part of the plaintiffs case on the admission made by Mr. Ojha his statement has to be accepted as a whole and not in part. Therefore, on this ground alone, the claim of Mr. In my opinion, this contention advanced by Mr. De is not at all substantial. If reliance has to be placed, in support of this part of the plaintiffs case on the admission made by Mr. Ojha his statement has to be accepted as a whole and not in part. Therefore, on this ground alone, the claim of Mr. De regarding any further godown rent fails. Similar is the case so far driage is concerned. There is no provision made about driage in the contract, though it is true, there is a reference of it in the passage of the rules which I have already referred to above. But, according to that what the plaintiffs are entitled to was only at the rate of half per cent which has already been allowed to the plaintiffs. Therefore, the claim for any additional amount on this account is unwarranted. Further, I should state here that in the end Mr. De also conceded that there was not much of substance in either of these two claims, namely, either about driage or about the godown rent. 12. The last item is about gunny bags. According to the plaintiffs, the number of gunny bags which had been damaged as a result of the unprecedented flood was 3381. Out of these, about 1541 were got damaged at the time when the flood had rushed into the godowns and 1840 were damaged subsequently in the process of taking out the paddy from the old gunny bags and putting them into new ones, after driage. Further, according to the plaintiffs, the price of these gunny bags should have been assessed at the rate of Rs. 95 per 100. The trial court, on a consideration of the evidence brought on record, has come to the conclusion that the plaintiffs are entitled only to the price of 750 bags and that at the rate of Rs. 65 per 100, In my opinion, in view of what I have already held, it has to be accepted that as a result of the flood the number of bags which were damaged was 1541. So far as the ease of the remaining gunny bags is concerned, namely, about the other 1840 that seems to be not supported by any sufficient evidence. So far as the ease of the remaining gunny bags is concerned, namely, about the other 1840 that seems to be not supported by any sufficient evidence. The trial court has fully dealt about these bags and I think that no reasonable ground has been made before us to fake a contrary view in the matter. Further, Mr. De also is not" very serious about it. In other words, the case regarding the gunny bags has been confined by him to the price of 1541 only. Now, having come to the conclusion that the plaintiffs are entitled to the price of 1541 bags, the other question that needs consideration is the rate at which the price should be assessed. In this connection it will be sufficient to say that according to the account books, they had been purchased by the plaintiffs at the rate of Rs. 95 per 100. These account books have already been accepted by me, as stated above, as genuine and as kept in due course of business. Therefore, on this ground alone the claim of the plaintiffs with regard to the price of 1541 gunny bags has to be assessed at the rate of Rs. 95/- per 100. Further, this gets sufficient support from Ext. 7(b) a memo from the Assistant Regional Grain Supply Officer, Darbhanga, to Rajput Rice Mill. Therein, the offer of the Mill for new gunny bags had been accepted at Rs. 90/-per 100. This was on the 10th January, 1947 and it is quite understandable that the price may have been a bit high during the time when the mansoon was on. Therefore, on account of the price of gunny bags, the plaintiff-appellants are entitled to get the price of 1541 bags and that at the rate of Rs. 95/-per 100. That then takes us to the question of interest. According to the claim made in the plaint, the plaintiffs are said to be entitled to it from the date as shown in their account and that at the rate of 6 per cent per annum. This, in my opinion, is not permissible in law. But, they are entitled to get interest on the amount as found payable by the State to the plaintiffs from the date of suit till the date of realisation at the rate of 6 per cent per annum. This, in my opinion, is not permissible in law. But, they are entitled to get interest on the amount as found payable by the State to the plaintiffs from the date of suit till the date of realisation at the rate of 6 per cent per annum. Accordingly, the judgment and decree of the trial court are modified and the appeal is allowed to the extent as stated above with proportionate costs. K.Dayal, J. 13 I agree.