RANCHHOR DAS Vs. HAR KISHAN DAS

JUDGEMENT

(1.) THE plaintiffs carry on business in Benares.

(2.) A portion of their business is that of commission agents in grain. They instituted a suit against the defendant, on the allegations that the defendant used to purchase grain from other firms and stored that grain with the plaintiffs, that at the defendant's request the plaintiffs paid the sellers of the grain the price of the grain, that the plaintiffs then sold the grain on behalf of the defendant as commission agents, and that on making up accounts, debiting the defendant with what the plaintiffs had paid on his behalf and their commission fees and crediting him with the sale proceeds, there was a balance of account due from the defendant to the plaintiffs. This was a perfectly clear claim. The defendant's reply was an equally clear reply. He stated that there was not a word of truth in the allegations made by the plaintiffs, that what had really happened was this that the defendant employed the plaintiffs as brokers, that from time to time the defendant instructed the plaintiffs to buy so many bags of grain and hold them over for re- sale on a cover of one rupee per bag. If the price went up, the plaintiffs were to sell at their discretion: if the price went down, the plaintiffs were to sell as soon as there was a loss of one rupee on each bag. The defendant's case was that on these transactions there had probably been a small profit, but that the plaintiffs had put up an unfounded claim of loss to him and a different claim in their plaint. The matter was one probably not easy of decision, but the points at issue were clear enough. The defendants case was that the plaintiffs claim was absolutely false, that they had entered into transactions with the plaintiff's but that they were perfectly different transactions from those alleged by the plaintiffs and that the transactions were gaming transactions which could not be enforced by a Court of law. The Trial Court clearly misunderstood the matter. The learned Subordinate Judge did not decide upon the points raised between the parties. He decreed the suit. The learned District Judge, in our opinion, misunderstood the matter as much as the subordinate Judge had and the result is that we are left with no proper decision upon the merits at all. This is not a case in which we can derive any advantage from the provisions of Order XLI Rule 25. Rule 23 has, of course, no application at all. This is one of the matters in which, if we are to get a satisfactory decision, we must act under the provisions of Section 151 of the Code of Civil Procedure. There has been no proper trial at all. The proceedings except the pleadings must be wiped out completely. We direct that all the proceedings after the filing of the written statement be considered null and void and that the suit be sent back to the successor of the Trial Judge for re-hearing upon the pleadings. The defendants shall be allowed to supplement their written statements by the addition of such pleas as may suggest themselves, after they have had a reasonable opportunity of inspecting the plaintiffs books, which are not inconsistent with their original pleas. Costs will follow the result.