ANAR KHAN Vs. SHIAM BEHARI GUPTA

JUDGEMENT

(1.) THIS revision is directed against a judgment and decree passed by the lower revisional court allowing a revision filed by the defendant-opposite-party dismissing the plaintiff-applicant's suit for recovery of Rs. 1788/-. The trial court had decreed the plaintiff's suit for recovery of Rs. 1788/- against the defendant- opposite-party. The defendant-opposite-party filed a revision which has been allowed by the learned III Additional District Judge. The revision is directed against the aforesaid judgment and decree passed by the lower revisional court. The lower revisional court has agreed with the trial court in so far as the question whether the defendant had borrowed the sum claimed in the suit from one Anar Khan plaintiff-applicant. However, it dismissed the plaintiff's suit as not maintainable on the ground that only one of the two Mukhtare-Ams appointed by Anar Khan had instituted the suit and not both the Mukhtare-Ams. In the view of the court below, th suit was not maintain able at the instance of only one Mukhtare-Aums. The power of attorney executed by Anar Khan in favour of two persons, namely, Bandey Khan and Slkander Khan has been quoted in the judgment of the lower revisional court. The lower revisional court has dismissed the plaintiff-applicant's suit on the ground that inasmuch the suit has been filed through only one of the two Mukhtare-Ams appointed by Anar Khan, the principal, the suit was not maintainable against the defendant-opposite-party. The learned Addl. District Judge has placed reliance on some decisions of other High Courts which have taken the view that where the principal appoints two or more agents they must act jointly, and that one of the two agents acting individually cannot bind the principal. I do not agree with the broad proposition that if the principal appoints two or more persons as his agent, to do a certain act on his behalf, then it must follow necessarily that one of the agents purporting to act on behalf of the principal cannot, as a matter of law, bind the principal. In my view, the true scope of the autho rity of co-agents would depend on the terms of their appointment. If, there fore, the terms of appointment of the agent themselves provides that agents must act conjointly, the act of an individual agent would not bind the prin cipal. In any case, it is only the principal who can legitimately raise the question whether the act of one of the co-agents purporting to act on behalf of principal would bind the principal and not a third party. In the present case, the authority in favour of the two agents, namely, Bandey Khan and Sikandar Khan executed by the principal Anar Khan has been quoted in the judgment of the lower revisional court. There is nothing in this authority which may suggest that the two agents were required to act conjointly in order to bind the principal. At any rate, the principal, namely, Anar Khan has not questioned the authority of the agent through whom the suit has been filed. It was not open to the defendant-opposite party, therefore, to question the competence or maintainability of the suit at the instance of only one of the Mukhtare-Ams. The view of the court below, therefore, that the suit filed in the, name of Anar Khan by one of the two Mukhtare-Ams, was not maintainable, is patently erroneous in law and unsustainable. He has acted with illegality in dismissing the plaintiff-applicant's suit on that ground. Learned counsel for the opposite-party, however, urged that the court below has not recorded any specific finding for the question whether in point of fact, the plaintiff had advanced the sum of money involved, to the defen dant-opposite-party. In my view, there is no substance in this submission. The trial court had upon a consideration of the evidence on record as well as relevant facts and circumstances of the case, came to the conclusion that the plaintiff had established his claim based upon a promissory note and a receipt, and had specifically disbelieved the story of the defendant- opposite party that though he had executed the promissory note, the money had been taken for some friend of the plaintiff. THIS defence of the defendant-opposite party had been disbelieved by the trial court for good and proper reasons. The lower appellate court has also observed "but for the legal defect in the plaint pointed out above, the decree passed by the trial court was unassailable". Moreover, before the lower revisional court on behalf of the opposite party only one point was pressed, namely, whether the suit was maintainable at the instance of only one of the two Muhktare-Ams. The lower revisional court has expressly observed that only this point was urged before him. Learned counsel for the defendant-opposite-party, however, urged that his client had orally instructed him to say that other points were also urged. I am not prepared to doubt the correctness of the statement contained in the judgment of the learned District Judge, to the effect that only the aforesaid point was urged before him and no other point was urged on the basis solely of the oral instructions of the learned counsel for the defendant-opposite party. In the result, the Revision succeeds and Is allowed. The judgment and decree passed by the learned 3rd Additional District Judge, Gorakhpur dated 2-2-76 are set aside and those passed by the learned Judge, Small Causes dated 12-12-73 decreeing the plaintiff-respondents' suit are restored. The plaintiff is entitled to his costs from the defendant-opposite party.