Judgment :- 1. The Plaintiff is the appellant. The suit from which this appeal arises was instituted by the Plaintiff for damages for short delivery. The Plaintiffs case was that he consigned 200 bags of sugar to the railway station at Lohat Siding on the Oudh Tirhut Railway for carriage to Trivandrum. The consignment was on 5-5-1950. The 1st defendant viz, the Southern Railway carried the goods after taking them over from the O. T. Railway and delivered them on 18 61950 at the Central Station, Trivandrum. On delivery it was found that, there was a shortage of 25 bags and 84 lbs. of sugar. On 6-9-1950 a claim was preferred by the Plaintiff under S.77 of the Railways Act for damages to the tune of Rs. 2,000 /- on account of the short delivery. As that claim was rejected by the 1st defendant the plaintiff after issuing the notice under S.80 of the Civil Procedure Code has instituted the suit claiming damages for short delivery. 2. Originally the General Manager of the Southern Railway Madras, representing the Union of India, alone was a party. Subsequently the General Manager of the O. T. Railway was also impleaded as the 2nd deft. The 1st deft, contended that the Southern Railway was only an agency to carry the goods and as such had carried the goods to the place of destination from the point of its taking over the goods in the same condition in which they were handed over to it. The 1st deft, therefore denied its liability for any loss because it maintained that no loss occurred during the transit of the goods through its line. The 2nd deft, also denied its liability and pleaded that the loss must have occurred on account of theft in running train. 3. It is admitted that no notice has been issued under S.80 of the Civil Procedure Code to the 2nd defendant, and therefore the suit was not maintainable as against that defendant; so far as the 1st deft, is concerned as there was no proof that the loss occurred during the transit of the goods in its line, the Court below dismissed the suit as against that railway administration. 4. Counsel contended that the view of the lower Court is wrong. 4. Counsel contended that the view of the lower Court is wrong. Ho relied on the provisions of S.72, 77 and 80 of the Indian Railways Act and contended that the liability of a railway administration is the same as that of a bailee entrusted with the goods and that unless there is strict proof that the railway administration exercised that amount of care which was expected of it as a bailee his client is entitled to get a decree for damages for short delivery. 5. As I understand it, the real point in this case is whether there is any evidence to show that the loss occurred during the transit of the goods in the line under the administration of the 1st. deft. S.80 of the Indian Railways Act reads as follows: "80. Notwithstanding anything in any agreement purporting to limit the liability of a railway administration with respect to traffic while on the railway of another administration, a suit for compensation for loss of the life of, or personal injury to, a passenger, or for loss, destruction or deterioration of animals or goods where the passenger was or the animals or goods were booked through over the railway of two or more railway administrations, may be brought either against the railway administration from which the passenger obtained his pass or purchased his ticket, or to which the animals or goods were delivered by the consignor thereof, as the case may be or against the railway administration on whose railway the loss, injury, destruction or deterioration occurred." Under this section a Plaintiff can file the suit either against a railway administration to which the goods have been consigned or against the railway administration which was carrying the goods when the loss occurred. 6. In Union of India v. Haji Abdul Karim Sait (1962 KLT. 341) Chief Justice Mr. M. S. Menon had to consider the respective liabilities of the railway administrations in carrying goods and has laid down the law in the following words: "What S.80 of the Indian Railways Act, 1890, has done is easy to understand. 6. In Union of India v. Haji Abdul Karim Sait (1962 KLT. 341) Chief Justice Mr. M. S. Menon had to consider the respective liabilities of the railway administrations in carrying goods and has laid down the law in the following words: "What S.80 of the Indian Railways Act, 1890, has done is easy to understand. It has given the consignor the choice of claiming his remedy either against the railway administration to which the goods were consigned or against the railway administration on which the loss occurred and barred his right of action, if any, against all the other railway administrations over which the goods might have been carried. In other words the consignor has been given an alternative and exclusive remedy against one of two railway administrations." As the O. T. Railway Administration, to which the goods have been consigned could not be made liable, as no claim under S.77 of the Indian Railways Act was made against it and also because no notice under S.80 of the C. P. C. was issued to it, Plaintiff s remedy can only be against the 1st defendant. Counsel for respondent contended that in order that the plaintiff may get a decree against the 1st deft, he must first prove that the loss occurred while the goods were in transit in the line under that railway administration. The High Courts is other jurisdictions in this country have taken this view on the question of the burden of proof. 7. The point came up for consideration in K. Bam Narain & Go. v. The Union of India (AIR. 1959 Patna 335). The Head-note in the case correctly sets out the principle of the decision, "Where the goods are consigned to a railway for delivery at a railway station on another railway and the suit for "damages for short delivery is brought against the Governor General or the Union of India representing the latter railway where the loss does not take place the latter cannot be made liable for the loss on the theory of agency or partnership. Therefore it is necessary to allege and prove that the loss occurred while the goods were in the custody of that railway. Therefore it is necessary to allege and prove that the loss occurred while the goods were in the custody of that railway. The onus of proof is on the Plaintiff before he could succeed in the claim against that railway and he could discharge that onus by asking for discovery of the documents from the defendant railway under the provisions of 0.11 R.12 or 0.11 R.14 of Civil P. C., with regard to the custody of the goods in the course of transit within their limits." The same view was taken in Firm R. Bhagavathi Prasad v. Union of India (AIR. 1959 Assam 98). It was held therein: "The traffic that is handed by Indian Railways reaches astronomical figures. Consignments delivered to a railway may have to travel on railways of two or three "different" Administrations. There are numerous cases in which goods were lost or damaged. There are cases also in which goods go astray. They may deviate from the course and may not be traced for years. The question is whether in these circumstances, it is safe to presume that a particular consignment was received in tact, first by the E. I. Railway, then it was handed over intact by the E. I. Railway to the East Bengal Railway and then brought by the East Bengal Railway to the Assam Railway. This presumption seems to be extremely difficult to make in view of the circumstances referred to above. Besides the presumption that the consignments reached the Assam Railway intact conflicts with the requirements of S. SO of the Indian Railways Act. The cause of action against the Union would arise only if the loss occurred on one of its railways. The plaintiffs have to prove this and may not shift onus by a presumption. The effect of making the presumption would be to shift the onus for accounting for the loss on the terminal administration, which S.80 does not warrant. If, therefore, the case set up is that a particular administration or administrations of the Union are responsible, it has got to be shown by the Plaintiff that the loss occurred on the railway or railways of the Union administrations." In D. H. Railway Com. v. Jetmull Dhojraji (AIR. 1956 Calcutta 390) it was held: "S. 80 of the Indian Railways Act creates a statutory liability on the part of the Railways. v. Jetmull Dhojraji (AIR. 1956 Calcutta 390) it was held: "S. 80 of the Indian Railways Act creates a statutory liability on the part of the Railways. It makes the railway administration to which the goods are consigned and/or the railway administration on whose lines the loss occurred liable to be sued at the option of the plaintiff.... But as observed in Governor General in Council v. Sukdeo Bam (AIR. 1949 Patna 329), this section lays down a specific rule of law governing the liabilities of different railway over which goods may be carried and those specific "rules must be given effect to irrespective of any other consideration based on agencies or partnership.... The onus is on the Plaintiff to prove that the loss had occurred while on the railway over which the goods have passed which is attempted to be made liable." The same rule was laid down in Chandra Sekkaram and Sons v. Union of India, (AIR. 1960 Orissa 100). "Mr. Panda lastly sought to rely on the provisions of S.106 of the Indian Evidence Act and contended that since certain facts were within the special knowledge of the deft, railway administration they should have adduced evidence to that effect. S.80 having laid down a certain procedure and the plaintiff, in the present case, having exercised the option for suing the defendant railway administration the onus is certainly upon him to prove that the damage or destruction was occasioned while the goods were on the lines of the deft railway. The plaintiff having failed to discharge the onus cannot now take advantage of S.106 of the Indian Evidence Act." In Civil Appeal No. 402 of 1959 it was held by the Supreme Court: (AIR. 1962 SC. 1879),"There is however, one more question which needs to be considered and that is whether the damage was caused on the D. H. Railway. In their written statement they have contended that the consignment of 90 bales was received by them at Silguri from the B. A. Railway and that it was transhipped by them to Giellekhale in the same condition. No evidence, however, was led by them in support of this contention. Under S.80 of the Railways Act it is for the consignor to establish if he wants to sue a railway administration other than the one which booked the consignment that the damage had occurred on its system. No evidence, however, was led by them in support of this contention. Under S.80 of the Railways Act it is for the consignor to establish if he wants to sue a railway administration other than the one which booked the consignment that the damage had occurred on its system. The contention seems to us to be correct. But where a consignor receives his consignment in a damaged condition from the delivering railway the burden would shift to the delivering railway to show that the damage had not occurred on its railway. The burden could be discharged by showing that the consignment was already damaged before it was received by that railway. Here no evidence having been given on behalf of the D. H. Railway on the point we hold that the presumption has not been rebutted." I need not pause to consider what is the extent of the inroad made by the Supreme Court upon the apparently unqualified width of rule as to burden of proof as laid down in the rulings of the several High Courts, as on the facts of the present case it may not be material. 8. In this case on 18 21954 the plaintiff moved an application before the lower court C. M. P. No. 702 of 1954 calling upon the defendants to produce the documents in their possession relating to these goods. Notice of the petition was given to the defts. and Court passed an order directing them to produce the records mentioned in the application. Defendants being in possession of the relevant records which could throw light on the question of the loss were bound to produce them. The contention of the 1st deft, was that when it took over the goods from the O. T. Railway there was a deficiency of 14 bags of sugar. There must certainly be records relating to this matter. The plaintiff wanted those documents to be produced just to prove his case that the loss occurred during the transit while the goods were in the custody of the Southern Railway. The documents not having been produced it was open to the Court under S.114 (g) of the Evidence Act to draw a presumption that the documents if produced would go against the case of the defendants. 9. The documents not having been produced it was open to the Court under S.114 (g) of the Evidence Act to draw a presumption that the documents if produced would go against the case of the defendants. 9. It is pertinent in this connection to recall the observations of the Privy Council in Surat C. S. & W. Mills v. Secretary of State (AIR 1937 P. C. 152). "In their Lordships' opinion, this obligation arises at once upon the occurrence of either of cases (a) or (b) and is not confined to the stage of litigation. Clearly one object of the provision is to obviate, if possible, the necessity for litigation. On the other hand, the closing words of the obligation clearly apply to the litigious stage. As to the extent of the disclosure, it is confined to the period during which the consignment was within the possession or control of the Railway Administration; it does not relate, for instance, to the period after the goods have been the furiously removed from the premises. On the other hand, it does envisage a precise statement of how the consignment was dealt with by the Administration or its servants. The character of what is requisite may vary according to circumstances of different cases, but, if the consignor is not satisfied that the disclosure has been adequate, the dispute must be judicially decided. As to the accuracy or truth of the information given, if the consignor is doubtful or unsatisfied and Considers that these should be established by evidence, their Lordships are of opinion that evidence before a Court of Law is contemplated, and that, as was properly done in the present suit, the railway administration should submit their evidence first at the trial ... While their Lordships would be inclined to hold that the respondent by his failure to submit the evidence of Rohead, was in breach of his contractual obligation to give the evidence necessary for disclosure of how the consignment was dealt with, they are clearly of opinion that the failure to submit the evidence of Rohead in the circumstances of this case, entitles the Court to presume, in terms of S.114 (g), Evidence Act, that Rohead's evidence, if produced, would be unfavourable to the Respondent, and that, in consequence, misconduct by complicity in the theft of some servant or servants of the Respondent may be fairly inferred from the Respondent's evidence." 10. Even apart from this on the admission of the 1st deft, itself, that when it got the goods, there was only a deficiency of 14 bags, it has still to explain the further deficiency of goods when delivered at Trivandrum. Considering these circumstances I am not satisfied that the disposal of the case by the lower Court is proper. 11. The lower Court has failed to draw the correct presumption from the non-production of the documents. The lower Court should have found that the only way to prove the plaintiff's case that the loss occurred during the transit of the goods while in the custody of the 1st defendant was by the production of the documents in the possession of the 1st defendant, and therefore it should not have dismissed the suit. 12. Counsel for the Respondents contended that the petition dated 18 21954 did not contain definite particulars about the documents to be produced, and therefore it was impossible for the defendants to comply with the order of the lower Court which only stated to produce the documents as mentioned in the petition. As a matter of fact no document was specifically mentioned in the petition. No doubt it was open to the defendants to have got a clarification of the matter by applying for a review of that order, but they did not adopt that course. 13. Counsel for the Respondents prayed that he may be given an opportunity to produce the relevant documents. As the suit was dismissed the lower court did nor record any finding on the question of the quantum of damages which the plaintiff may be entitled to get. 13. Counsel for the Respondents prayed that he may be given an opportunity to produce the relevant documents. As the suit was dismissed the lower court did nor record any finding on the question of the quantum of damages which the plaintiff may be entitled to get. In these circumstances, I think that the respondents must be given an opportunity to produce the relevant documents. Although the Respondents were directed by the Court to produce the documents mentioned in the petition and, they defaulted to do so, the default arose because there was no specification of the documents to be produced. As I have said they could have got a clarification of the matter from the Court itself. But for the ends of justice, I think, the 1st Respondent's request for remand must be allowed. I allow it. The Court below will take such evidence as the parties may require to adduce and dispose of the case after receiving that evidence. 14. In the result, I confirm the judgment and the decree of the lower court as regards the 2nd defendant, set aside the judgment and decree as regards the 1st deft, and remand the case to that Court. The appellant will be entitled to get a refund of one-half the Court fees paid on the memorandum of appeal. The 1st respondent will pay the rest of the costs of the appellant here and his costs in the Court below irrespective of the final result of the suit. As regards the 2nd respondent, it is entitled to get its costs in this court from the appellant.