A. Deb, J.
1. This appeal is directed against the judgment dated 18.8.1986, passed by the learned Additional District Judge, Kamrup, Gauhati, setting aside the judgment and decree dated 16.12.1983, passed by the learned Assistant District Judge No. 1 at Gauhati in Money Suit No. 68 of 1979. The only point on which the learned Additional District Judge has allowed the appeal was that notice under Section 10 of the Carriers Act, 1865, was not served upon the defendants.
2. Heard Mr. S.S. Sharma along with Mr. K.K. Bhatra, learned counsel, on behalf of the appellant. None appears for the respondents. I have perused the memo of appeal and judgments of the courts below.
3. Mr. Sharma, learned counsel, in course of the argument has drawn my attention to the case U Ba Tin v. U Tun On AIR 1938 Rangoon 437. In the aforesaid decision it has been held that in a suit against persons alleged to be common carriers within the meaning of the Carriers Act, for the loss or injury to goods entrusted to them for carriage, it is not necessary for the plaintiff, as in the case of Section 80, Civil Procedure Code, to expressly state in the plaint that he has issued a notice under Section 10 of the Carriers Act. Such an averment is implied under Order 6, Rule 6, Civil Procedure Code, and it is for the defendants to deny in their written statement according to Order 8, Rule 2, that they are common carriers or to raise the plea of the absence of notice. Where they fail to do so, the onus is on them to prove and to show that they took good care in the carriage of the plaintiff's goods.
4. Section 10 of the Carriers Act, 1865, reads as follows:
10. Notice of loss or injury to be given within six months.-No suit shall be instituted against a common carrier for the loss of, or injury to, goods entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff.
5. During the course of argument Mr. S.S. Sharma has drawn my attention to the notice sent under Section 10 of the Carriers Act, 1865. Mr. Sharma further argued that since the defendants did not raise any plea of absence of notice under Section 10 of the Carriers Act, the plaintiff was not under obligation to prove the notice sent to the carrier. Mr. Sharma has also drawn my attention to a telegram sent by the carrier and this telegram has also not been proved because the defendants have not raised plea of non-service of notice. Strong reliance has been placed by Mr. Sharma on the case of U Ba Tin v. U Tun On AIR 1938 Rangoon 437.
6. I respectfully disagree with the proposition of law laid down in U Ba Tin v. U Tun On AIR 1938 Rangoon 437, that in a suit against persons alleged to be common carriers within the meaning of the Carriers Act, for the loss or injury to goods entrusted to them for carriage, it is not necessary for the plaintiff, as in the case of Section 80, Civil Procedure Code, to expressly state in the plaint that he has issued a notice under Section 10 of the Carriers Act, 1865. In my view, Section 10 of the Carriers Act, 1865, is mandatory on the same footing as Section 80 of the Civil Procedure Code and it is, therefore, necessary to expressly state in the plaint that the plaintiff has issued notice under Section 10 of the Carriers Act, 1865.
7. The language of Section 10 of the Carriers Act, 1865, being plain and unambiguous, it is not open to the court to read into it the limitations which are not there, based on a priori reasoning as to the probable intention of the legislature. Such intention can be gathered only from the words actually used in the statute, and in a court of law what is unexpressed has the same value as what is unintended.
8. I, therefore, hold that to maintain a suit for damages for short delivery against a common carrier notice of claim under Section 10 of the Carriers Act must be given within six months from the first date of knowledge of loss or injury and not from the date of knowledge of assessed quantum of loss or injury and ascertained estimate thereof in money value. I further hold that Section 10 of Carriers Act being mandatory, as in the case of Section 80 of Civil Procedure Code, it is necessary to expressly state in the plaint that the plaintiff has issued a notice under Section 10 of Carriers Act and unless this is complied with no suit shall be instituted against a common carrier for the loss of or injury to goods entrusted to him for carriage.
9. Since the appellant has submitted that plaintiff served a notice under Section 10 of the Carriers Act, and that such notice is on the record of the case, the case record is sent back to the learned Munsiff No. 1, Gauhati and to give an opportunity to the plaintiff to amend the plaint if the plaintiff is so advised or to prove the notice according to law.
10. I make it clear that it is up to the learned Munsiff No. 1 to consider as to whether amendment, if any, proposed shall be entertained or not at this stage on facts as well as on law. I further direct that the learned Munsiff No. 1 shall examine the notice as to whether the notice satisfies the ingredients of Section 10 of the Carriers Act.
11. Learned Munsiff No. 1 shall dispose of the case within a period of three (3) months from the date of receipt of the record in accordance with law. Let the case records be sent to the learned Munsiff No. 1, Gauhati.
12. The appeal is disposed of with the above observation. There will be no order as to costs.