JUDGMENT : ( 1. ) THIS revision under section 25 of the Small Cause Courts act is from a decree for Rs. 61 passed by the 1st Civil Judge, Class II, Seoni, exercising powers of a Small Cause Court. ( 2. ) ON October 27, 1967, one basket containing 15 kgs. of betel leaves was consigned from Golanthara Railway Station (South Eastern Railway) to seoni, same railway ). It actually reached Seoni on October 31, 1967. The plaintiffs case is that there was undue delay owing to which the betel leaves became rotton. He claimed Rs 61 as damages. ( 3. ) THE learned trial Judge held that the betel leaves, at the time of their booking, were in good condition. The defence to the contrary was not accepted by the Court. The evidence of Ghhedilal plaintiff (P. W. 1) was believed. ( 4. ) IN this revision it is contended for the defendant that the plaintiff did not prove any misconduct or negligence on the part of the railway administration without which a decree in favour of the plaintiff could not be passed. Reliance is placed on section 74 (3) of the Railways Act It is not in dispute that the goods were booked at the owners risk rate. Section 74 (3) enacts :- "when any animals or goods are deemed to have been tendered to be carried, or are carried, at the owners risk rate, then, notwithstanding any thing contained in section 73, the railway administration shall not be responsible for any loss, destruction, damage, deterioration or nondelivery, in transit, of such animals or goods, from whatever cause arising, except upon proof that such loss, destruction, damage, deterioration or non-delivery was due to negligence or misconduct on the part of the railway administration or of any of its servants. " It is not contended on behalf of the plaintiff that any evidence was given to prove negligence or misconduct on the part of the railway administration. In fact that case was not even pleaded. ( 5. " It is not contended on behalf of the plaintiff that any evidence was given to prove negligence or misconduct on the part of the railway administration. In fact that case was not even pleaded. ( 5. ) SHRI Jain, learned counsel for the respondent relies on section 76 of the Railways Act, which provides as follows : - a railway administration shall be responsible for loss, destruction, damage, deterioration of animals or goods proved by the owner to have been caused by delay or detention in their carriage unless the railway administration proves that the delay or detention arose without negligence or misconduct on the part of the railway administration or of any of its servants. " ( 6. ) ON an examination of the scheme of the Railways Act and (he provisions contained in sections 74 (3) and 76, it is clear that section 76 is a proviso to section 74 (3 ). If the owner proves that there was any loss, destruction, damage or deterioration caused by delay or detention, then the burden shifts on the railway administration to prove that the delay or detention arose without negligence or misconduct on the part of the railway administration or of any of its servants. To put it differently, section 76 requires : (1) the owner to prove that there was delay or detention which caused loss, destruction, damage or deterioration. When the owner succeeds in doing so, then (2) it is for the railway administration to prove that the delay or detention arose without negligence or misconduct on the part of the railway administration or of any of its servants. It follows from this analysis that where the owner does not prove delay or detention, as required under the first part of section 76, then the owner has to prove negligence or misconduct as is required by section 74 (3 ). ( 7. ) JUDGED by these tests, it will have to be seen whether the plaintiff has satisfied the requirements of section 76 and, if not, whether he has satisfied the requirements of section 74 (5 ). Learned counsel for the petitioner urges that the plaintiff has not satisfied any of the two requirements. ( 8. ) IT was for the plaintiff to prove that there was delay or detention. The plaintiff has not proved it. Learned counsel for the petitioner urges that the plaintiff has not satisfied any of the two requirements. ( 8. ) IT was for the plaintiff to prove that there was delay or detention. The plaintiff has not proved it. A great deal of stress is laid on behalf of the plaintiff on the fact that inspite of steps having been taken in the trial Court under Order 11, Civil Procedure Code, the railway administration did not produce their records to show how the goods were transmitted from place to place. It is not in dispute that the goods consigned from Golanthara to Seoni have to be transshipped at four intermediate stations, namely, Vijayanagaram, raipur, Gondia and Nainpur. ( 9. ) IT is now clear position of the law that the course of transit and the manner in which the goods are transshipped being in the special knowledge of the railway administration, if the plaintiff requires them to disclose how his goods were transmitted from place to place, the railway administration is bound to make the disclosure. Where the plaintiff is not satisfied with the disclosure, so made by the railway administration, he has to request the Court to demand further disclosure from the railway administration. If that is not done, the plaintiff cannot make a grievance that full disclosure was not made. In Union of India v. Mahadeolal ( AIR 1965 SC 1755 ), their Lordships made the following observations:- thus where in a suit by the consignee, he never tells the Court after the evidence of the railway is over that he is not satisfied with the disclosure and that the railway be asked to make further disclosure by producing further evidence, it cannot be said that there was any breach by the railway of its responsibility to make full disclosure. " This was a case under the Railways Act prior to the amendment of 1961, when the burden was on the railway administration. ( 10. ) NO doubt the plaintiff in his deposition stated that a consignment from Golanthara usually reached Seoni within three days. He could not stand the cross-examination when the basis for this statement was elicited from him. He admitted that he did not know the time table of the trains, nor about the transshipment at different junctions. ( 10. ) NO doubt the plaintiff in his deposition stated that a consignment from Golanthara usually reached Seoni within three days. He could not stand the cross-examination when the basis for this statement was elicited from him. He admitted that he did not know the time table of the trains, nor about the transshipment at different junctions. He even did not know the nature of the train which could bring the goods within three days. He was then asked whether he himself received any parcel within three days and, if so, to give its number or date. His answer was that he did not know. The statement of p. Sabhuham (D. W. 1) produced by the defendant is equally vague and no reliance can be placed on him. He merely stated that goods reach in five days, but he did not base his statement of any document. He even stated that he could not deny that goods starting from Golanthara can reach Seoni within three days. ( 11. ) IN any event, since the plaintiff was unable to prove that there was delay or detention, the burden did not shift on the railway administration to prove want of misconduct or negligence. He is, therefore, not entitled to the benefit of the second part of section 76 of the Railways Act. The plaintiff himself has not proved misconduct or negligence. ( 12. ) IT is urged by the learned counsel for the respondent that omission to file a written statement amounts to an implied admission of the averments in the plaint within the meaning of Order 8, rule 5, Civil Procedure Code. On that basis it is urged that the averments in the plaint regarding delay must be taken as admitted by the defendant and the first requirement of section 76 of the Railways Act is established. The burden shifts on the defendant to prove absence of misconduct or negligence. Since this burden has not been discharged the plaintiff is entitled to a decree. I am unable to accept this contention. The burden shifts on the defendant to prove absence of misconduct or negligence. Since this burden has not been discharged the plaintiff is entitled to a decree. I am unable to accept this contention. Order 8, rule 5, Civil Procedure Code enacts that the defendant must, in his written statement, either admit or specifically deny every particular allegation made in the plaint and further that if no allegation of fact in the plaint is denied specifically or by necessary implication or not stated to be not admitted in the pleading of the defendant, it shall be deemed to be admitted. The word "pleading" is defined in Order 6, rule 1 of the Code of Civil Procedure of this country :-" pleading shall mean plaint or written statement. " thus for the purposes of the Code, an oral pleading is not within the definition. The defendants pleading is a written statement. The object of Order 6, Civil procedure Code, is that the litigants should come to trial with all issues clearly defined and that cases should not be expanded or grounds shifted without reference to the true facts. The words "in the pleading of the defendant" contemplate the application of the rule when the defendant files a written statement, but not otherwise. Those words clearly indicate that the principle of admission by non-traverse comes into play only when the defendant puts in a written statement Where he does not file a written statement, the question of denying specifically or by necessary implication, or stating to be not admitted does not arise. It is clear that the provisions contained in Order 8, rule 5, civil Procedure Code, must be read in continuation with the provisions contained in rules 3 and 4 of that Order. Rule 3 requires that the defendant, in his written statement, must specifically deal with each allegation of fact of which he does not admit the truth and rule 4 emphasises that a denial must not be evasive or ambiguous. Rule 5 states the effect of not conforming with the provisions of rule 3. In other words, if the averment contained in the plaint is not denied specifically or by necessary implication, or is not staled to be not admitted in the written statement, then it shall be taken to be admitted. Rule 5 states the effect of not conforming with the provisions of rule 3. In other words, if the averment contained in the plaint is not denied specifically or by necessary implication, or is not staled to be not admitted in the written statement, then it shall be taken to be admitted. But when the written statement is not filed, the question of denying specifically or otherwise does not arise. Consequently it cannot be said that the defendant has committed non-compliance with the provisions of rule 3 so as to attract rule 5. Rule 5 being in the nature of a penal consequence for non-compliance with rule 3, where rule 3 is not attracted, rule 5 does not come into play. The view that I take was also taken in T. C. A. A. Balod v. Union of India ( 1968 MPLJ 325 = 1968 JLJ 855 ) and by some other High Courts. See, for instance, Boss and Co. v. Seriven (AIR 1917 Cal 269 FB), Bhageran Rai v. Bhagwan Singh ( AIR 1962 Pat 319 ) and Laxman v. Babusa (AIR 1925 Nag 380 ). ( 13. ) A contrary view was taken by Beaumont, C. J. and Rangneker J. in shriram v. Shriram (AIR 1936 Bom 285 ). The reason given by their Lordships was that if a written statement is not filed it cannot contain denial or non admission. But for the reasons stated I do not concur in that view. This I say with the utmost respect. ( 14. ) MOREOVER, the Bombay decision is distinguishable inasmuch as, here, the plaintiff was required to prove his case (See proviso to Order 8, rule 5, civil Procedure Code ). ( 15. ) FROM the above discussion it must be said that plaintiff did not prove delay or detention. That having not been done, he cannot get any benefit of the second part of section 76, and the burden did not shift on the railway administration to prove want of negligence or misconduct. Going back to section 74 (3) of the Act, the plaintiff has not proved negligence or misconduct on the part of the railway administration or of any of its servants. ( 16. ) THE revision is allowed. The judgment and decree of the trial court are set aside. Going back to section 74 (3) of the Act, the plaintiff has not proved negligence or misconduct on the part of the railway administration or of any of its servants. ( 16. ) THE revision is allowed. The judgment and decree of the trial court are set aside. The suit is dismissed, but since the defendant did not file written statement in this case, parties shall bear their own costs throughout. Application allowed.