PULIN BEHARY SAHA Vs. MATHURA NATHA SAHA BISWAS

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of prices of some articles alleged to have been supplied by the plaintiffs to defendants 1 and 2 on the allegation that defendant 2 who had taken the goods from the shop of the plaintiffs had acted as an agent of defendant 1. The Court of first instance gave a decree against defendant 2 alone holding that defendant 2 had not acted as an agent of defendant 1. On appeal by the plaintiffs the lower appellate Court found that defendant 2 by whom the goods had been taken from the plaintiffs shop was a servant of defendant" 1 and in a way it found also that the goods which had been taken From the shop of the plaintiffs had been received by defendant 1 and had been dealt with by him and on these facts the lower appellate Court gave a decree against defendant 1 alone on the ground that defendant 2 had acted as an agent of defendant 1. Defendant 1 hag appealel to this Court.

(2.) There were two points urged before us on behalf of the appellant. The first one was that the lower appellate Court was wrong in law in inferring from the facts found by it that defendant 2 was an agent of defendant 1 for the purpose of the purchase. We are unable to agree with the learned advocate for the appellant in this view of the matter. The lower appellate Court has held that defendant 2 was a servant of defendant 1 and it is an undeniable fact that the goods were actually taken from the plaintiffs shop by defendant 2. The lower appellate Court, as I have said before, found in a way that the goods taken from the shop of the plaintiffs by defendant 2 were received by defendant 1 and dealt with by him. These facts, in our opinion, were sufficient for an inference in law that defendant 2 was an agent of defendant 1. The learned advocate contended that the findings to the effect that the goods supplied by the plaintiffs found their way to defendant 1, and were dealt with by him were unsupported by any evidence. The evidence which the learned Additional District Judge has discussed in connexion with this matter may not have been sufficient for the findings arrived at by him on the point. But it cannot be said that these findings are based on no evidence at all and unless it can be said that the findings are based on no evidence we cannot, in second appeal, interfere with them.

(3.) The other point that was taken by the learned advocate for the appellant was that the lower appellate Court having in a way disbelieved the plaintiffs case of an express authority by defendant 1 to defendant 2 ought not to have made defendant 1 liable on a case of implied authority. But the pleading of the plaintiffs, as it is to be found in the plaint, would show that the plaintiffs did not confine their case to a case of express authority only. The plaint, as we read it, may be taken to include a case of express authority as well as a case of implied authority. Our attention was drawn to the fact that some of the plaintiffs in their evidence deposed only to a case of express authority. But that would not, in my opinion, exclude them from setting up a case of implied authority if a case of implied authority could be made out from the facts and circumstances and other evidence appearing in this case.