MATHAI Vs. PUNNOOSE

JUDGEMENT

(1.) THE petitioners in these civil revision petitions were the plaintiffs in Small Cause Suit Nos.6 of 1968 and 36 of 1964 on the file of the Subordi­nate Judge's Court of Kottayam.Both those suits were disposed of by a common judgment as the issues involved in the suits were identical.

(2.) THE plaintiffs in the two suits are brothers.The 1st defendant(in both suits)agreed to sell 10 bags of rice to the plaintiff in one suit and 5 bags of rice to the plaintiff in the other suit,each set of five bags of rice being valued at Rs.26.08.The price was paid and the 1st defendant issued three bills which are marked as Exts.P -1,P -2 and P -3 in the cases.The 1st defendant thereafter failed to supply the rice and when the plaintiffs demanded the amounts,the 1st defendant replied that the money had been paid to the 2nd defendant and that the 1st defen­dant was not liable.The two suits were filed for recovery of amounts due to the respective parties and they were jointly tried on the appli­cation of the defendants.In both the suits the 1st defendant pleaded that the claim was not enforceable in law as the transaction evidenced an illegal contract and also that he has paid back the amounts to the respective plaintiffs in the two suits.

(3.) THE first contention raised by the revision petitioner is that the quantity of rice sold under Exts.P -1 and P -2 is very much less than 10 quintals and under the Kerala Foodgrains Dea­lers Licensing Order,1964,which will herein­after be referred to as the Licensing Order,there was no prohibition or restriction with regard to private sales of rice if the quantity was less than 10 quintals.It was also urged that the joint trial of the two separate suits filed by the two different plaintiffs was no reason for the court to treat subject -matter of the two suits as one single claim arising under a single transaction.The trial court held that though separate bills had been issued,the tran­saction related to the sale of 15 bags of rice and it was as such in contravention of the pro­visions of the Licensing Order.In the said Order,it is provided that no person shall carry on business as a dealer except under a licence issued by the authority and a dealer has been defined "as a person engaged in the business of purchase,sale or storage for sale of any one of the foodgrains in quantity of ten quintals or more at any one time..." ;.Although some attempt was made by the 1st defendant to prove that the two transactions were negotiated by the same person,namely,one Devassia,the 1st defendant was not able to substantiate this contention.Devassia was examined on the side of the plaintiffs and he swore that he did not know the 1st defendant at all and that the trans­actions were not entered into by him on behalf of the plaintiffs in either of the two suits.There is,therefore,really no evidence to show that the transactions were effected by the same person.On the contrary,the evidence only establishes that the transactions were separate,and each being in respect of a quantity below 10 quintals there was no illegality attached to the private sale or purchase of rice.The 1st defendant has put forward two cases mutually inconsistent with each other.He would say that he has not effected any sale of rice and that he was but only a commission agent.He would also say that the alleged transaction is illegal as it was for the sale of rice above the quantity of 10 quintals.If the first contention were to be accepted,it would mean that there was no sale of rice by him and there was there­fore no contravention of the Licensing Order.The lower Court has however found that the 1st defendant has really effected the sale of rice.The question is whether the contract entered into by the plaintiffs in the two suits is illegal,that is to say,whether it contravened the provisions of the Licensing Order.So far as the plaintiffs in the two suits are concerned,their purchases as such cannot be considered as illegal or invalid as they had effected private purchases only of quantities of rice below the prohibited quantity.There is no provision under the Licensing Order which prohibits a person from purchasing rice below 10 quintals from any private seller.It has not been proved that the plaintiffs in each of the two suits were aware that the 1st defen­dant was storing or carrying on trade in rice above the prohibited quantity.This is a case where,if at all,the 1st defendant alone knew that he was carrying on trade in rice in contra­vention of the Licensing Order.The plaintiffs,who paid the amounts,cannot be considered in pari delicto in such circumstances.