KISHAN DAYAL Vs. HAR PRASAD

JUDGEMENT

(1.) THE facts of the case are these:--According to paragraph 5 of the plaint, the plaintiffs shop, on the 31 December, 1907, purchased 200 bags of bajra through the defendants agency and directed them to send 100 bags to Amroha and 100 bags to Kanth; but the defendants agency, contrary to the direction, sent 100 bags to Kunwat in the State of Jaipore instead of Kanth. THE plaintiffs had to take delivery of their goods from Kunwat aforesaid. In this transaction they sustained an actual loss of Rs. 420 which ought to be paid by the defendants, but they are not inclined to do so. THE plea in defence in respect of the above allegation was as follows: ?THE 200 bags of bajra which Ram Sarup, a gomashata (agent) of the plaintiffs and Chandu Lal, son of Har Pershad, plaintiff, bought through the defendants agency, were despatched to Amroha and other places by the said Ram Sarup and Chandu Lal themselves and not through the defendants commission agency. If the plaintiffs sustained any loss in consequence of a fault of their agents, the contesting defendants cannot be held liable therefor." THE Court of first instance dismissed the plaintiffs claim finding that the goods were sent to Kunwat through the mistake of the station master or the goods clerk. THE plaintiffs appealed and the lower appellate Court modified the decree of the Court of first instance reversing it on the point above set forth. THE lower appellate Court remarks in its judgment as follows: THEre remains the one item which is the subject of appeal. It appears the plaintiffs purchased 200 sacks of grain and directed that half should be sent to them at Amroha and half should be sent to Kanth which is a Railway station on the line between Moradabad and Nagina in the Moradabad district. Instead of this the 100 sacks were sent to Kunwat in Jaipur State. THE question is who is responsible for this mistake and is the loss to fall on the plaintiffis or defendants? THE lower Court came to the conclusion that the goods clerk or station master, and I share this opinion. THE lower Court dismissed the claim of the plaintiffs. With this finding I do not agree since the Railway was the agent employed by the defendants and were liable to them if they did not send the grain to the correct place. THE defendants, through another firm, Chand Ram- Lachman Das, who was acting for them, made over the grain to the Railway by one Topan Das. THE Court further remarks: ?Topan Das was the consignor and either he or the Railway officials made a mistake in consigning the articles and it is not fair that the plaintiffs should be saddled with the cost of this mistake. If Topan Das can prove he gave the correct destination then he would recover from the Railway, and similarly the defendants could recover from him." THE above extracts from the judgment of the lower appellate Court show that the view taken by that Court of the case is that the defendants are liable to the plaintiffs, and it is unnecessary to decide whether the mistake in sending the goods to Kanwat was due to the negligence of the defendants agency or of the servants of the Railway. Having regard to the pleadings of the parties I find myself unable to agree with this view of the case. Paragraph 5 of the plaint in very unequivocal terms shows that as soon as the purchase was effected on the 31 December, 1907, the ownership in the bajra purchased vested in the plaintiffs and that the defendants thenceforth. became their agents. That being so, the defendants in contracting with the Railway must be deemed to be contracting as agents of the plaintiffs irrespective of the fact whether they did or did not disclose the names of their principals. As the defendants in the course of business acted as agents of the plaintiffs they can only be liable if negligence is brought home to them. It is, therefore, necessary to have a finding on the following issue which I refer to the Court below under the provisions of Order XLI, Rule 25 of the Code of Civil Procedure. Were or were not the defendants guilty of any negligence in carrying out the directions of the plaintiffs with reference to the 100 sacks of bajra?

(2.) THE Court will be at liberty to take such additional evidence as the parties may adduce. Ten days will be allowed for objection.