P L D 1962 (W (PLP)

KHAMISANI, J.‑This is a first civil appeal filed against the judgment and decree passed by the learned Additional District Judge, Karachi, in favour of the plaintiff‑respondents.

2. The facts of this case briefly are that defendant No. 2 in the suit, who was working as Manager for defendant No. 1, was given two sums of money, one of Rs. 1,500 and the other of Rs. 5,500 through bearer cheques on 22nd August 19 55, under receipt (Exh. 15). The cheques were given to defendant No.

2. Another sum of Rs.4,200 was also given by the plaintiff respondents by way of loan to defendant No. 2, on behalf of defendant No. 1 appellant on 5th November 1955. Receipt (Exh. 16) was executed by defendant No. 2 in favour of the plaintiff‑respondents. Since the amount was not repaid, notice (Exh. P‑2) was given on 4th October 1957, by the respondents to defendant No.

1. The acknowledgment due for this notice was signed by defendant No.

2. Defendant No. 2 sent a reply to this notice on 14th October 1957, on behalf of defendant No. 1 admitting the claim of the respondents and promising to pay the amount within a few months by instalments. The reply sent by defendant No. 2 is Exh. P‑

5. Another notice dated 25th October 1957, (Exh. P‑6) was sent by the respondents to defendant No. 1 asking them to execute a promissory note in favour of the respondents for a total sum of Rs. 11,200 given to them as a loan. A third notice by way of reminder was sent by the respondents to defendant No. 1 on 21st December 1957. This notice is Exh. P‑9, Defendant No. 1 then replied on 31st December 1957 (Exh. P‑10) showing their complete ignorance about the transaction and asking for the details of the previous correspondence indulged in this behalf and available with the respondents. The respondents replied to this letter on 3rd February 1958 (Exh. P‑11) enclosing the previous notice and also the reply by defendant No.

2. Defendant No. 1 thereafter on 14th February 1958, sent a reply asking for further particulars (Exh. P‑12). The particulars asked for were in relation to the receipts executed and the persons who had executes: those receipts. These particulars were not supplied but instead a reply was sent by the respondents on 28th February 1958 (P‑13) reiterating their claim and stating that the necessary particulars had already been supplied This letter was replied by defendant No. 1 on 1st March 1958, (Exh. P‑14). Defendant No. I in this letter Insisted on getting the necessary particulars asked for in the earlier letter and disclaimed their responsibility in respect of the transaction. They also affirmed that defendant No. 2 had at no point of time any authority on behalf of them to enter into any transactions. The respondents thereafter filed a suit on 6th May 1958 for recovery of Rs. 11,200 with interest at 6 per cent per annum the suit was decreed against defendant No. 1 only by the judgment dated 17th October 1959.

3. Several issues were framed in the suit. The view of the learned Judge was that defendant No. 1 were responsible for the payment of the loan advanced by the respondents to defendant No. 2, as the loan had been taken on behalf of defendant No. 1.

4. The main question which has been argued before us in this appeal Is that defendant No. 2 was never authorised to enter Into any transactions or raise any loans on behalf of defendant No.

1. Reliance, according to the counsel for the appellant, was wrongly placed by the learned Judge on section 188 of the Contract Act. Section 188 of the Contract Act reads as under "

188. An agent having an authority to do an act has authority to do every lawful thing which is necessary in order to do such act. An agent having an authority to carry on a business has authority to do every lawful thing necessary for the purpose, or usually done in the course of conducting such business."

5. It is clearly contemplated by this section that an authority for an agent to act on behalf of the principal should pre‑exist before a claim on a transaction entered into by an agent on behalf of the principal can be accepted. We have gone through the evidence In this case and it is nowhere shown shat defendant No. 2 had at any point of time any authority from defendant No. 1 to act on their behalf and raise loans or enter into any transactions. Even the respondents have not pleaded in their plaint the case of defendant No. 2 being an agent of defendant No.

1. They have also not pleaded that the amounts given to defendant No. 2 had been advanced to him to his capacity as an agent for defendant No.

1. Even Muhammad Naqi Nawab, who is a partner of the plaintiff‑respondents' firm, has not in his evidence substantiated his case by showing that defendant No. 2 had acted as an agent on behalf of defendant No.

1. The relevant portion of his evidence reads as under: "Defendant No. 2 was the General Manager of defendant No. 1 and he looked after the entire business and carried transaction of all kinds for and on behalf of the defendant No.

1. I personally went to Rottaprint Office several times. Excepting defendant No. 2, none else was incharge of business of defendant No. 1." This statement made by the witness in his examination‑in‑chief has been completely nullified by what he has stated in his cross‑examination. This is what he has stated in his cross-examination: "I have had dealings with defendant No. 1 prior to this as Managing partner of Pakistan Oil Products, but such dealings were confined to printing work only done by defendant No.

1. There was no money transaction prior to this. I knew Amanaullah quite intimately before the said loans were made. Prior to this there was no dealing between the plaintiff firm and defendant No. 1 . . . I have no, other evidence excepting the word of defendant No. 2 who obtained the said loans for defendant No.

1. The said loans were obtained by defendant No. 2 for the business of defendant No. 1. 1 have no knowledge if the defendant No. 2 had any power of attorney for defendant No. 1. 1 have no knowledge if defendant No. 2 obtained loans for any other party for defendant No. 1. 1 have no knowledge if defendant No. 1 had any bank account. We did not make any enquiry as to who presented these cheques at the bank for receiving payment. We have no knowledge whether this amount was credited to the account of defendant No. 1."

6. It is admitted that the burden of proving whether the amounts were advanced to defendant No. 2 in his capacity as an agent acting on behalf of defendant No. 1 was on the plaintiff respondents. With this evidence given on behalf of the plaintiff respondents, it is not possible to reach a conclusion that the money was advanced to defendant No. 2 as an agent for defendant No. 1.

7. The position would have been different if on the notice given by the plaintiff‑respondents to defendant No. 1, defendant No. 1 had admitted the claim and confirmed the transaction entered into by defendant No. 2 on their behalf. From the correspondence indulged into between the parties, we have come to the conclusion that defendant No. 1 had at the earliest point of time disclaimed the responsibility for the payment of the loan advanced to defendant No. 2 and had affirmed categorically that defendant No. 2 had no authority to enter into a transaction of the type mentioned by the plaintiff respondents. The circum stances of the case also indicate that defendant No. 1 had nothing to do with alleged transaction. The loans were advanced to defendant No. 2 by way of two bearer cheques and cash of Rs. 4,

200. It is not in evidence as to who got these cheques cashed it is also not proved as to whether this money was utilized for the business of defendant No.

1. It is also nowhere in the evidence that the money was advanced for the business of defendant No.

1. The receipts were executed by defendant No.

2. It is not shown as to how the plaintiff-respondents agreed to advance the money to defendant No. 2 without knowing whether defendant No. 2 had an authority from defendant No. 1 to receive these amounts. Defendant No. 2 had also not shown to the plaintiff‑respondents the authority under which he was acting. It is also not explained as to 'why these two cheques, one for Rs. 1,500 and the other for Rs. 5,500, were given to defendant No. 2 on the same day, although they were given almost at one and the same time. Even the receipt for both of these cheques is also a joint one (Exh. P‑15). The notice given by the plaintiff‑respondents to defendant No. 1 on 4th October 1957 (Exh. P‑2) had also by coincidence fallen into the hands of defendant No.

2. The acknowledgment receipt (Exh. P‑4) indicates that it had been received by defendant No.

2. The reply sent to the plaintiff‑respondents purports to show that it was sent by defendant No.

2. There is nothing on the record to indicate that defendant No. 1 had even at any time knowledge of what had transpired between the plaintiff‑respondents and defendant No.

2. Under these circumstances, it is difficult to believe, as has been contended by the learned counsel for the plaintiff‑respondents, that defendant No. 1 had ratified the transaction entered into by defendant No. 2 with the plaintiff respondents or that defendant No. 2 had acted as an agent on behalf of defendant No.

1. This being the position on record, we find it very hard to accept the judgment of the learned Additional District Judge, Karachi. In fact the reasoning advanced by the learned Additional District Judge, Karachi, does not appeal to us at all.

8. The last point contended by the learned Advocate for the respondent No. 1 was that if we do not find a case made out for a decree against the appellant we must give the respondent No. 1 a decree against respondent No. 2 who was defendant No. 2 in the suit. We are afraid we cannot do so. In cases like this, Order XLI, rule 33 of the C. P. C., on which reliance has been placed cannot be invoked. We have applied our mind at great length In a similar case decided by us in Messrs Bakhsh Illahi & Sons v. Mohkamdin Muhammad Amin and another (P L D 1962 Kar. 551) in which we had held that in the Absence of a counter appeal being filed a decree against another defendant cannot be given. In view of what has been said above; we see no reason for upholding the judgment given by the learned additional District Judge, Karachi. We consequently accept the appeal and set aside the judgment and decree passed by the learned Additional District Judge. The appeal, therefore, stands allowed with costs. K. B. A. Appeal accepted.