RAGHUNATH JHA Vs. KESORI LAL

JUDGEMENT

(1.) It is quite obvious that this Letters Patent Appeal by defendant 2, must succeed notwithstanding that the judgments of the Munsif and the District Judge in first appeal and of the Single Judge of this Court were in favour of the plaintiffs against defendant 2. The simple point upon which the suit as against defendant 2 must of necessity fail is the fact that the plaint discloses no cause of action whatever against him. The suit was a suit for rent and the allegation was that defendant 1 took settlement of the land in question under a patta and kabuliyat, but the plaint goes on to state that defendant 1 by express arrangement with the plaintiffs did not desire that the documents should bear the name of defendant 1 and therefore that the plaintiffs granted the lease as a matter of form to defendant 2 who was a relative of defendant 1 and that all the parties to the transaction were in accord in this particular; further that it was defendant 1 who came into possession of the land and enjoyed the benefits. I do not know why in these circumstances any remedy should have been sought against defendant 2.

(2.) The plaint merely discloses a contract between the plaintiffs and the agent of a disclosed principal. In these circumstances it is clear that the agent cannot be sued. Where there is a matter of doubt as to the liability of the agent or the principal in a contract the usual course is to sue both defendants alleging that the principal was the principal to the contract and in the alternative suing the agent for breach of warranty of authority. That course however was not pursued. The Courts below came to a most curious conclusion. First of all they seem to have held that the story of the benami transaction was not true in fact and the justification for this finding seems to have been the fact that defendant 2 seeing that no cause of action was disclosed against him in the plaint wisely kept away from the proceedings throughout until this appeal.

(3.) They seem to have thought that it was the duty of defendant 2 to come into Court and explain the true nature of the relationship between himself and defendant 1. This view of the fact is quite untenable. In any case none of the Courts seem to have noticed the very simple point that the plaint merely discloses facts which constitute a contract between the plaintiffs and the agent of a principal together with an allegation that the plaintiffs were aware at the time of making the contract that the agent who executed the contract was an agent for the principal.