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Judgment
A.P. Singh, J.—The controversy involved in the present appeal is interpretation of Clause (2) of Section 77 of the Indian Railways Act. According to the appellant''s counsel the term ''non delivery'' in Clause (2) of the Section will be referable only when ''nondelivery'' has actually occasioned but will not apply when wrongful delivery has been made to a person other than the one to whom the delivery was meant to be made. If the delivery has been given to a wrong person, Clause (2) of Section 77 of the Railways Act will not apply. No protection under Clause (2) of Section 77 can therefore be taken by the Railways so as to avoid their liability for damages in the case of delivery of the consignment has been made to a person who was not the person entitled to get it; so emphasised the learned counsel.
Contention, in my opinion, is totally misconceived. ''Non delivery'' of the goods after the expiry of the period of 7 days from the termination of the transit will be referable in relation to the person who was to take its delivery. If ''nondelivery'' has occasioned for any reason whatsoever whether due on account of its loss or distruction or wrongful delivery to an unauthorised person. In every case the result is ''nondelivery'' of the consignment and if a period of 7 days have lapsed before a claim for deliver of the same is made no liability can be fastened on the Railways on account of either of ''nondelivery'' or of wrongful delivery.
I find no merit in this appeal which is, accordingly dismissed in limine, under Order XLI, Rule 11 of the Code of Civil Procedure.