P L D 1962 (W (PLP)

KHAMISANI, J.‑This is a first appeal arising out of the judg ment doted 30th September 1958 passed by the learned Additional District Judge, Karachi, decreeing the suit of the plaintiff‑respon dents for Rs. 5,820 with costs against defendant No. 1‑appellants.

2. The facts giving rise to the suit are that the plaintiff‑respon dents had contracted to purchase 100 bales of cotton at Rs. 66 per bale on 28th November 1953 from defendant No. 1 appellants through respondents No.

2. The transaction was notified in Circular No. 67 of the Cotton Association. Another 100 bales of cotton were purchased by the plaintiffs from defendant No. 1‑appellants through respondents No. 2 on 11th December 1953. This transaction was notified in Circular No. 78 of the Cotton Association. The case of the plaintiff‑respondent was that defendant No. 1 appellants failed to give the delivery as per the terms of the contracts. A settlement was consequently arrived at between the plain tiff‑respondents and respondents No. 2 in accordance with which the price of cotton was settled at Rs. 72 per bale. The demand note was, therefore, sent by the plaintiff ‑respondents to defendant No. 1‑appellants on 26th January 1954 for payment of Rs. 1,620 the difference in price. With regard to the second transaction, a letter was addressed by the plaintiff‑respondents to defendant No. 1‑appellants on 11th February 1954 informing them that the date for the performance of the contract was extended upto 20th February 1954. This date was extended on the alleged request of respondent ho. 2. 'The delivery of the goods in respect of the second contract was also not given by defendant No. 1- appellants. The plaintiff‑respondents, therefore, wrote a letter on 22nd February 1954, being a debit note, for a sum of Rs. 4,200 on account of the difference in price in respect of the second contract. Defendant No. 1‑appellants sent a reply to this letter of the respon dents No. 1 on 24th February 1954 stating that they were not a party to the contracts and that they were not liable to pay damages on account of the difference in the price of the contracted goods. The plaintiff‑respondents consequently filed a suit on 9th September 1954 claiming damages in the amount of Rs. 5,820 with 6% interest on it from the date of the suit till the realisation of the amount.

3. The appellants resisted the suit. The case of defendant No. 1‑appellants was that they were not a party to the contracts. Their case also was that respondents No, 2 had not been authorised as an agent to enter into contracts with the plaintiff‑respondents on their behalf. The case of respondents No. 2, on the other hand, was that they had entered into the contracts with the plaintiff respondents as a broker on behalf of defendant No. 1‑appellants.

4. Several issues were framed in the suit. The decision of the Court ultimately was that the plaintiff respondents were entitled to damages. The suit was consequently decreed for a sum of Rs. 5,820 with costs.

5. The question that has been agitated before us by the learned counsel for the defendant No. 1‑appellants is that they were not a party to the contracts. Their case was also that respondents No. 2 was not their authorised agent so that they could enter into the contracts on their behalf. The admitted position in the case is that the contracts on which the suit was founded were entered into between the plaintiff respondents and respon dents No.

2. It is also admitted that at no time was there anything in writing from defendant No. I‑appellants to indicate that respon dents No. 2 had entered into the contracts with the plaintiff respondents on their behalf. It is also admitted that at the time of the settlement of the first contract a settlement was arrived at Rs. 1,020 between the plaintiff‑respondents and respondent No. 2 on account of a difference in the contract price and the price on the day of the breach. It is conceded that the appellants were not a party to that settlement. What is contended is that defendant No. I appellant knew all these contracts at least on 26th January 1954 when debit note, Exh. P‑4, for Rs. 1,620 was sent to them in respect of the first contract. According to the argument advanced by the learned counsel for the plaintiff‑respondents, the defendant No. 1‑appel lants had no justification for remaining quiet till 24th February 1954. This conduct on their part, according to the case of the respondents, was indicative of only one inference that respondents No. 2 had taken contracts on behalf of defendant No. 1‑appellants. The other argument advanced is that contracts, Exhs. P‑1 and P‑2, do mention that the contracts had been entered into by respon dents No. 2 with the plaintiff‑respondents on behalf of defendant No. 1‑appellants. The third argument advanced is that the tran sactions were mentioned in Circulars Nos. 67 and 78 of the Cotton Association which have been brought on record as Exhs. P‑7 and P‑

8. The letters written by the plaintiff‑respon dents to defendant No. 1‑appellants on 26th January 1954 and 22nd February 1954, which are the debit notes, are also circum stances to show that defendant No. 1‑appellants were the parties to the contracts.

6. We have given our best consideration to the arguments advanced by the learned counsel and we are clearly of the view that the circumstances on which the plaintiff‑respondents rely are not sufficient for holding that defendant No. 1‑appellants were a party to the contracts. On the question that respondents No. 2 acted as an agent for defendant No. 1‑appellants and entered into con tracts with the plaintiff‑respondents in their capacity as such, reliance is placed on the evidence of Mushtaq Ahmad (D. W. 1). The learned Judge has also placed reliance upon it. What we have actually found in the evidence of Mushtaq Ahmad (D. W. 1) is contrary to what has actually been considered. It is a solitary statement of this witness that respondents No. 2 had acted for them as an agent in several contracts that has been relied upon. Mushtaq Ahmad (D. W. 1) has in his evidence stated that those contracts which were entered into by respondents No. 2 on their behalf had to be confirmed before they could be considered final. In other words the evidence of D. W. 1 is that respondents No. 2 acted as their agent for a limited purpose and that each contract that was entered into by respondents No. 2 on their behalf had to be ratified and confirmed by defendant No. 1‑appellants. Under these circumstances, it is not possible to come to the con clusion that respondents No. 2 were an authorised agent of defendant No. 1‑appellants having authority to enter into every contract on their behalf. Section 235 of the Contract Act is a clear answer to such cases. Section 235 of the Contract Act reads as under :‑ "

235. A person untruly representing himself to be the authorised agent of another, and thereby inducing a third person to deal with him as such agent, is liable, if his alleged employer does not ratify his acts, to make compensation to the other in respect of any loss or damage which he has incurred by so dealing." Under this section it was obligatory on the plaintiff-respondents to show that respondents No. 2 had not represented themselves untruly as an authorised agent of defendant No. 1‑appellants. There is no evidence on record to even remotely suggest that the plaintiff‑respondents bad discharged that burden. They have in fact led no evidence to show that respondents No. 2 were an authorised agent of defendant No. 1‑appellants. In that event, the defendant No. 1‑appellants, according to us, will not be liable for the damages which the plaintiff‑respondents are alleged to have suffered. Reliance for this purpose is also placed on Ratan Singh v. Haji Hafizullah (A I R 1924 Oudh 184), in which it has been held as under : "Where an agent representing his principal purchases goods on his behalf but the latter repudiates his liability to pay therefor, the agent is liable for the price." In this case also the repudiation bad come from defendant No. 1 appellants on 24th February 1954. This repudiation was con tained in the letter addressed to the plaintiff‑respondents on that date. This letter has been brought on record as Exh. P/6. The argument that this letter was addressed to the plaintiff respondents after one month from the date of the receipt by defendant No. 1 appellants of the debit note for Its. 1,620 cannot be put across in defence against their repudiation. In fact even this argument will not be available to the plaintiff ‑respondents as letter, Exh. P/6, does mention that an oral repudiation had been con veyed to the representative of the plaintiff respondents immediately after the receipt of the debit note, Exh. P/4, for Rs. 1,620 dated 26th January 1954. On the evidence which is available on the record, we are constrained to come to the conclusion that defen dant No. 1‑appellants were not a party to the contracts and in the event of the appellants having repudiated the contracts entered into on their behalf by respondent No. 2 they will not be liable to the plaintiff‑respondents.

7. The learned counsel for the respondents No. 1 has also argued that in case we come to the conclusion that the decree given to the respondents No. 1 against the appellants cannot be upheld they may be given a decree at this stage against defendant No. 2 in the suit who are also respondents No. 2 before us. In support of his argument he has relied upon Order XLI, Rule

33. We have considered his arguments and we are of the view that this belated request on his part cannot be accepted. 3t is true that the relief claimed by the respondents No, 1 was against the joint and several responsibility of the appellants and respondents No. 2 at the time when they filed the suit but after the decree was given to the respondents No. 1 against the defendant No. 1‑appellants the respondents No. 1 were satisfied. They had not brought a counter appeal nor had they filed any cross‑objections against the appeal filed by defendant No. 1‑appellants. The position in law is quite clear. Order XLI, Rule 33 is not meant to cover cases of this type. We shall for this purpose rely on Hari Shankar v. Anath Nath (AIR 1949 F C 106). The relevant portion is reproduced hereunder. "Order XLI, Rule 33 is a purely enabling provision which enables the appellate Court to exercise certain powers in favour of a party who has not filed the appeal if the circumstances of the case and the interest of justice so require. In a proper case it has power to vary or reverse a decree on an order of the Court below in favour of a party who has not preferred any appeal or cross‑objection. The powers being discretionary, no Court can be compelled to make an order under this rule; but if the appellate Court, while it allows the appeal, refused to make any order in favour of a non‑appealing party, whose position is Identically the same as that of the successful appellant, without applying its mind to the provisions of Order XLI, rule 33 and without considering whether it should or should not exercise its powers under that rule, the Court is not incompetent to rectify its omission and reconsider the matter if and when it is brought to its notice by way of an application for review."

8. Another case on the subject is Muhammad Khaleej Shirazi & Sons v. Les Tanneries Lyoonaises and another (AIR 1926 P C 34). The head‑note of this ruling is reproduced hereunder: "A suit was filed against A, and B as agent of A. The trial Judge (the original Side of the High Court) passed a decree against A but by his decree dismissed the suit against B but decreed that B should pay to the plaintiffs taxes, costs and interest thereon. The plaintiffs did not appeal to the High Court against the decree of the trial Judge dismissing the suit against B. A and B jointly appealed to the High Court against the decree which had been made against them. On that appeal the High Court found that A was not liable to pay anything in respect of one of the suit contracts and modified the decree in respect of their liability under the other suit contract with certain costs and dismissed the suit against A and B. Against that decree of the High Court the plaintiffs appealed to the Privy Council. Held, that the appeal to his Majesty‑in‑Council, in so far as B was concerned was in effect, an appeal direct to His Majesty in Council from the decree of the trial Judge, which is not allowable under the Code of Civil Procedure, or under the Letters Patent of the High Court, and that Order XLI, rule 33 is not intended to apply to such an appeal and accordingly the appeal so far as B was concerned should be dismissed."

9. The third case on the point is Ganga Dhar Muradi and another v. Banabashi Padihari and others (A I R 1914 Cal. 722). The head‑note of this ruling also is reproduced hereunder:‑ "The words of rule 33, Order XLI, Civil P. C., are widely expressed, but they must be applied with discretion. No hard and fast rule can be laid down but ordinarily the power con tained in the rule should be limited to those cases where, as the result of the appellate Court's interference with the decree in favour of the appellant, further interference is required in order to adjust the rights of the parties in accordance with justice, equity and good conscience."

10. The fourth case is Sher Muhammad Nawab Khan v. Mst. Aimna Bibi (A I R 1937 Pesh. 69). The head‑note of this ruling is also reproduced hereunder: "The exercise of the powers under Order XLI, rule 33, Civil P. C., is discretionary and is normally exercised only in cases in which the failure to exercise them would lead to impossible, contradictory and unworkable orders."

11. There are numerous other cafes on the point but it is not necessary to make a reference to them. Even otherwise the provisions contained in Order XLI, rule 33, C. P. C., are discretionary and they are usually meant to cover hard cases for the purpose of avoiding conflicting or contrary decrees. No such situation is visualised in the present case. The matter is one in which we do not consider it proper to exercise the discretion in favour of granting a decree to the respondents No. 1 against respondents No. 2.

12. The result, therefore, is that the appeal filed by the appellants is allowed with costs. K. B. A. Appeal accepted.