PHOOLCHAND Vs. MURLIDHAR

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff against the judgment and decree of the District Judge, Balotra, dated the 14th of August, 1952 whereby his claim has been dismissed.

(2.) THE plaintiff had filed the present suit in the court of Naib Hakim, Jalor on 29th of September, 1951. It was averred by him that on Sawan Sud 11 Samvat 1997 the defendant Ramjas agreed to deliver to him one box of rosamine day at Jalor on Bhadwa Vad 2 of the same year and he executed an agreement to this effect in writing. THE plaintiff on his part gave Rs. 250/ - to the defendant as earnest money towards the price of the said goods. It was stated that both the defendants, Murlidhar and Ramjas, were propraetors of the firm Dhirajmal Chunnilal on whose behalf the contract was made, that they failed to deliver the goods, that the defendants were several times asked to deliver those goods but they kept on evading the responsibility, It was further mentioned that the plaintiff suffered a loss of Rs. 50/- on account of the defendants' failure to deliver the goods and, therefore, he brought the suit for recovery of Rs. 300/- THE defendant admitted that there was a contract between them and plaintiff for the delivery of a box of rosamine dye but it was pleaded that according to the agreement, the delivery was to be made at Balotra and it was at a subsequent request of the plaintiff that the goods were sent to Jalor. According to the defendants, they did despatch the consignment of rosamine dye and delivered the railway receipt to the plaintiff at Balotra. According to the defendants, it was the plaintiff who failed to take delivery of the consignment and, therefore, they were not responsible for the loss, if any, occasioned to him. THEy denied that any breach of contract was made on their side. THE trial court decreed the suit on 12th of September 1945. THE defendants went in appeal to the Judicial Superintendent, Mallani, who set aside the decision of the trial court and remanded the case for giving a fresh decision after framing three additional issues. This time the case was heard by the Munsiff, Jalor and the suit was again decreed. THE defendant went in appeal to the District Judge, Balotra who allowed the appeal and dismissed the suit as mentioned above.