MADHOLAL Vs. BRIDHICHAND

JUDGEMENT

(1.) This is an application by Madholal defendant to revise the order of the learned Judge, Karauli, remanding the case to the Court of the Munsif, Karauli, for decision according to the observations made in the appellate judgment. Originally, the defendant filed a second appeal but on the objection of the counsel for the opposite party that; no appeal lay against the order of the appellate Court, the defendant made an application that the appeal might be treated as a revision, as no appeal lay against the order of the lower Court. The facts giving rise to the revision are as follows; The plaintiff opposite party filed a suit against the defendant-applicant on the ground that he had been paid Rs. 300 by the plaintiff on 8-10-1943 for the purpose of purchasing 4 Mds. of Ganja from Sanawar in erstwhile Indore State, 2 Mds. of Genja valued at Rs. 150-11 was purchased by the defendant and made over to the plaintiff, Rs. 19-7 were spent on railway fare. Thus only Rs. 172-2 were spent out of the sum of Rs. 300, and the balance of Rs. 127-14 remained due from him which had not been paid. The plaintiff claimed this amount of Rs. 127-14 with interest at the rate of Re 1% per mensem. The total amount claimed was Rs. 193-7-6.

(2.) The main defence was that there was no privity of contract between the plaintiff and the defendant. The learned Munsif Karauli held this point in favour of the defendant and dismissed the suit. On appeal, the learned Civil Judge held that the plaintiff was entitled to recover the balance out of the sum of Rs. 300 from the defendant and has remanded the suit for the determination of the correct amount. Against this order second appeal was first filed, but no appeal lay as the order of remand could not under the circumstances of the ease, be under Order 41, Rule 23, Civil P. C. The only order of remand, which is appealable, is that under Order 41, Rule 23. The present order of remand, though described by the learned Civil Judge as under Order 41, Rule 23 and Section 151, Civil P. C., is in fact an order under Section 151, Civil P. C. and is consequently not appealable. An application was, therefore, made by the defendant's counsel to treat the appeal as revision and it has been so treated.

(3.) The main argument made by the learned counsel for the defendant- applicant, is that there was no privity of contrast between the parties. The applicant was only a sub agent of Laxami Narain who was in the position of an agent of the plaintiff. Under Section 192, Contract Act, where a sub-agent is properly appointed, he is responsible for his acts to the agent, but not to the principal, except in case of fraud or wilful wrong. under Section 193 where an agent with. out having authority to do so, has appointed a, person to act as a sub-agent, the agent stands towards such person in the relation of a principal and an agent, and is responsible for his acts both to the principal and to third persons; the principal is not represented by or responsible for the acts of the person so employed, nor is that person responsible to the principal. It was urged that the defendant, whether he was properly appointed as sub-agent or so appointed without any authority by the agent, be is not responsible to the plaintiff who is the principal. The Civil Judge was, therefore, wrong in holding the defendant as liable to the plaintiff.