- (1.) I think this case must go back to the first Court. It appears that when the case WAS first tried, the defendants, the respondents before us, were not present, and the case was decided ex parte. The respondents subsequently prayed for a re-hearing. Their prayer was granted, and the Subordinate Judge, after taking evidence, found that Gyanath was the gomasta of the defendants, respondents; that the cotton had been made over to them through Gyanath; and that part-payments had been made by defendants by means of hundis, and therefore the plaintiff was entitled to receive the balance from the defendants, respondents. On appeal the Judge rejected, and very properly, the evidence taken in the absence of the defendants, respondents; and with regard to Gyanath, he held that even if the evidence were sufficient to prove that Gyanath was the mokhtar gomasta of the defendants, yet it would be necessary for him to have a special power from his principals to enable him to purchase goods such as cotton, etc., on their account; that there was no proof taken after the order for re-hearing, as to the delivery of the cotton and part-payment by the defendants, respondents; and that the most the evidence on which the lower Court rested its judgment went to prove was, that Gyanath acted as agent for the defendants for the transaction of a business in hundis, and that the plaintiff failed to make out that Gyanath had general power to act for the defendants.
(2.) I think the case must go back, because, when it was re-tried, the evidence which was taken in the absence of the defendants should not have been used against them, but the Court should have allowed the plaintiff an opportunity to produce those or other witnesses, and have permitted the defendants to cross-examine them.
(3.) With regard to the position of the gomasta, I think the Judge has taken a wrong view, in considering that it was necessary for the agent to have special powers from his principals to purchase certain kinds of goods; and the view he has taken appears to have had some effect on his judgment. If the evidence goes to show that the party said to he the agent was really a general agent, and did transact business of various kinds for his principal, no special power was required for him to transact this particular business.;