SEWSAGAR AVASTY Vs. SATYANARAIN SAH

JUDGEMENT

(1.) On behalf of defendant No. 1, who has presented this appeal, the first point taken by learned Counsel is that the lower appellate Court was erroneous in giving a decree to the plaintiff with regard to the sum of Rs. 2,614 and odd. being the price of standard cloth supplied by the plaintiff to the defendant for being sold at their shop, namely, Swadeshi Vastralaya. The argument of learned Counsel is that the plaintiff had license under the Bihar Cotton Cloth and Yarn Dealers (Licensing and Control) Order, 1944, which was promulgated and came into force on 14-1-1944. The defendant had no license for selling standard cloth which is defind in Section 2(10) of the Control Order to mean "cloth stamped as such and issued for sale from godown of the District Magistrate", Section 3 of the Control Order is as follows :

(2.) In our opinion, therefore, the claim of the plaintiff with regard to the sum of Rs. 2,614 and odd cannot be decreed by the Court.

(3.) The other point taken by learned Counsel on behalf of the appellant is that the case of the defendant with regard to the payment of Rs. 3,500 has not been investigated by the lower appellate Court, which came to the conclusion that that transaction was independent of the transaction upon which the plaintiff had based his suit. Having heard learned Counsel for both the parties we are satisfied that the case of the defendant with regard to the payment of Rs. 3,500 was a different version of the same transaction upon which the plaintiff has based his claim. It was, therefore, incumbent on the lower appellate Court to have investigated the case of the defendant with regard to the payment of Rs. 3,500 and give a definite finding on that point. We do not accept the contention of the learned Counsel for the respondent that the defendant's case with regard to the payment of Rs. 3,500 is an independent transaction and has no connection with the claim of the plaintiff. It is, therefore, necessary that the case should go back to the lower appellate Court for investigating the case of defendant No. 1 that there was payment of Rs. 3,500, and after coming to a finding on this point, he should proceed to decide the appeal in accordance with law.