DALPAT RAI Vs. MANOHAR LAL AND SONS

JUDGEMENT

(1.) THIS is a revision application by one of the defendants against the judgment and decree by the Additional Civil Judge. Jodhpur dated 21 -10 -1970 whereby the learned Judge upheld the judgment and decree of the trial court awarding Rs. 540/ - to the plaintiff on account of hire charges of a sewing machine. The relevant facts are these: The plaintiff -non -petitioner No. 1 M/s Manoharlal & Sons entered into an agreement described as one of Hire -purchase, with Prakash Chand non -petitioner No 2 as principal party and the petitioner Dalpat Raj and the non -petitioner No. 3 Kushal Raj as guarantors, according to which the plaintiff agreed to let to Prakash Chand (who will hereinafter be described as the hirer) a sewing machine valued at Rs. 225/ -. The hirer agreed to pay the plaintiff (who has been described as owner in the agreement) Rs. 15/ - every month in advance as rent. The agreement is dated 7 -10 -1960. The guarantors gave guarantee for the due performance and observance by the hirer of the terms and conditions of the agreement and to pay all or any sums of money which may be payable to the owner by the hirer. The plaintiff's case is that the hirer paid monthly hire charges at the rate of Rs. 157 - for 9 months upto 6 -7 -1961 i.e. Rs. 135/ - in all and thereafter ceased paying the same. Consequently, he filed the present suit in the Court of Munsiff City, Jodthpur against all the three defendants, namely, the hirer and the two guarantors for recovery of Rs. 540/ - being the hire charges for 36 months only which were within limitation and gave up the rest of the amount. The petitioner Prakash Chand alone filed written statement and the suit against the other two defendants proceeded ex parte. Prakash Chand pleaded inter alia that the sewing machine was, as a matter of fact, sold to the defendant No, 1 and its price was agreed to be paid by instalments of Rs. 15/ - per month. He repudiated the plaintiff's case of hiring out the machine to the defen -dent No. 1. Certain other pleas were also taken but I need not mention them as the only point which has been canvassed before me and which survives for decision is whether the transaction between the parties was one of sale or a hire, and purchase agreement

(2.) AFTER recording the evidence produced by the parties the trial court came to the conclusion that the defendant No. 1 had hired the machine from the plaintiff by the agreement D/ - 7 -10 -1960 marked Ex. 3 on a monthly hire of Rs. 15/ - only. In this view of the matter he decreed the plaintiff's suit as prayed. The learned Additional Civil Judge, Jodhpur on appeal by the defendant. No. 1 Dalpat Raj came to the conclusion that the agreement Ex. -3 was a sale but since there was a condition incorporated in it that if the hirer failed to pay rent regularly in advance, the whole transaction would be treated as one of hire without any option to purchase, the plaintiff was entitled to maintain the claim for recovery of the hire charges and in this view of the matter he upheld the judgment and decree of the trial court.

(3.) ON the other hand learned counsel for the non -petitioner -plaintiff has urged that the interpretation put by the lower appellate court on the agreement Ex. -3 may be right or wrong or may not be in accordance with law, but it had jurisdiction to make the order which it did and, therefore, this court, has no jurisdiction under Section 115 C. P. C. to interfere with the judgment and decree of the learned Additional Civil Judge. In support of his contention he has relied upon D L. F Housing etc Co. v. Sarup Singh AIR 1971 SC 2324 and Hindustan Aeronautics v. Ajit Prasad. AIR 1973 SC 76, On the merits of the case his contention is that the transaction in question as evidenced by the agreement Ex. -3 is not a sale but one of hire purchase. For this point he has relied upon K. Narayan V. Laxmi Narasimmam AIR 1955 Hyd 104 (FB).