Bapna, J. - (1.) THIS is a second appeal by the defendant in a suit for recovery of money.
(2.) THE respondents sued the appellant on the allegations that the defendant-appellant appointed the plaintiffs, who were carrying on business in the name of Badri Narain Dwarka Prasad at Kishangarh, as his agents for the purpose of purchasing and selling cotton yarn on conditions that commission would be paid at 8 annas per cent, and interest would be paid on moneys spent by the agents at 10 annas per cent per mensem, besides paying of expenses of postage and telegrams. It was further agreed that if the defendant did not place sufficient funds at the disposal of the agents on the date of delivery of the goods, the same would be sold by the agents at market rate. This agreement was alleged to have been entered into on Jeth Sudi 12, Svt. 2000. It was further alleged that on the same date the defendant purchased through the agency of the plaintiffs two bales of yarn at Rs. 12/11/3 per packet of forward delivery which was to take place on Asar Sudi 15. Samvat 2000, and the defendant was debited with the price of these goods amounting to Rs. 1016/4/ -. It was alleged that the defendant again purchased on Asar Budi 1, 2 and 3 bales of yarn at Rs. 12/7/3 per packet of forward delivery of Asar Sudi 15, Samvat 2000, and a sum of Rs. 1494/6/ representing its price was debited to the defendant. It was further alleged that as the defendant did not sent the requisite money for taking delivery, the five bales of yarn were sold in the market at Rs. 7/14/- per packet, and the defendant was credited with Rs. 1575/- being the price of the said goods. THE plaintiffs claimed Rs. 12/8/- on account of commission, -/i0/- for brokerage, -/5/- for charity, -/8/- postage, and Rs. 2/2/- for telegraphic charges, and Rs. 100/5/- by way of interest. THE plaintiffs gave credit to the defendant for Rs. 201/-alleged to have been deposited by the defendant, and claimed the balance of Rs 850/-, after relinquishing the claim for Re. 1/ -. The defendant denied having appointed the plaintiffs as his agents or having done any transaction with the plaintiffs, and alleged that the suit had been brought on account of enmity. The trial court, after evidence, dismissed the suit, but on appeal it was decreed in favour of the plaintiffs. Hence this second appeal. Learned counsel for the respondents raised a preliminary objection that the findings of the first appellate court that the defendant did appoint the plaintiffs as his agents for the purpose of purchasing cotton yarn on the terms stated in the plaint and that he did make a purchase of 5 bales of yarn at the rates mentioned in the plaint, and the plaintiffs did sell the yarn owing to the default of the defendant causing a loss of Rs. 935/10/- are all findings of fact, and cannot be challenged in second appeal. There is no doubt that a second appeal lay only on questions of law, but in the present case, the learned trial Judge by dismissing the plaintiffs' suit had given a number of reasons for not accepting their case to have been proved. The first appellate court did not take into consideration the reasons mentioned by the first court, and in a very slipshod manner held that the plaintiffs had been able to prove their case. While mentioning that P. W. 1 Chandmal, P. W. 2 Ganpatlal, and P. W. 3 Govindram supported the plaintiff, P. W. 4 Govind Narain, that the defendant appointed the plaintiffs as his agents and purchased two bales of yarn through their agency, the learned trial Judge observed in respect of Chandmal, P. W. I, that he did not remember in what month the talk between the plaintiffs and the defendant took place, and he did not know on what date the two bales were purchased. In respect of Ganpatlal it was observed that he did not know for how many bales the transaction of yarn took place, and did not remember the date when the talk between the plaintiffs and the defendant took place, and conceded finally that no transaction took place in his presence. In respect of P. W. 3 Govind Ram it was observed that he did not remember for how many bales the defendant transacted in the first instance or subsequently, and he did not remember from whom the bales were purchased. He contradicted the plaintiffs by saying that the transaction with the plaintiffs was done in winter season- In respect of P. W. 4 Govind Narain plaintiff the trial court observed that he did not mention the date on which the agreement appointing the plaintiffs as the agents of the defendant on certain terms was entered into and was unable to say under whose instructions the two entries Exs. 7 and 8, which related to the purchase of the two and three bales of yarn respectively were made in the account-books. It was mentioned that according to this witness the transaction was done through a dalal in the market on the same day when the plaintiffs were appointed agents. It was pointed out that this version of the plaintiff Govind Narain was in direct contradiction with the statement of P. W. 3, who said that the agreement was made some time in winter season, and of the statements of the other two witnesses P. Ws. 1 and 2, who said that the transaction of the purchase of yarn took place at the shop of the plaintiffs. The trial court referred to the omission of the plaintiffs to produce the broker or the shopkeepers from whom the bales were purchased or the shopkeepers to whom they were sold or even the munim Chandmal. who was alleged to be the scribe of the documents Exs. 7. 8 and 9 the 1st document being the entry of sale of the bales at Rs. 7/14/- per packet. In respect of the statement of Badri Narain plaintiff, P. W. 5, it was observed that his statement referred to the items of deposit of Rs. 100/- and Rs. 101 - by the defendant. The learned Judge of the first appellate court on this part of the case did not discuss any of the reasons mentioned by the lower court for disbelieving the plaintiffs' case, but wrote out the following lines for upsetting that finding : - "the plaintiffs in support of their version have produced Exs. 1 to 10 and witnesses Ganpat Lal Govind Ram, Govind Narain, Badri Narain. These witnesses prove that the defendant appointed the plaintiffs as his agents for transacting business. The lower court has held this evidence to be unreliable because in his opinion the witnesses were not independent and were relations of the plaintiffs. The evidence of the witnesses cannot be discarded on the ground of relationship or friendship with the plaintiffs. " In a case of the nature, where the first appellate court totally disregards the reasons advanced by the first court, the findings of the first appellate court are liable to be challenged in second appeal, for it is a question of law whether the first appellate court can upset the finding of fact without applying its mind to the evidence on the record, and considering the reasons which had been advanced by the trial court for coming to a different finding. I have therefore, gone through the evidence myself, and am of opinion that the findings arrived at by the trial court were correct. There is no documentary evidence in support of the fact that the defendant had appointed the plaintiffs as his commission agents. The fact could find mention at the place where the alleged deposit of Rs. 101/- was entered in the account book of the plaintiffs. That entry only purports to be a receipt of Rs. 101/-from the defendant. One could expect an entry in Ex. P.-3 that this was a deposit toward certain transactions. Even the terms of the transaction could find a place in that entry. The allegation that the defendant was debited with an amount of Rs. 1016/4/- on the date of the first purchase and with the amount of Rs. 1494/6/- on the date of the second purchase is totally false, for on the date of purchase no money was required to be paid by the plaintiffs as the transaction was one of forward delivery. Even in the account Ex. P.-l furnished by the plaintiffs these debits are not to be found. The debits are found in Ex. P.-6, which is a fictitious account, as it does not contain any reference to the casebook. If as alleged by the plaintiffs, it was a part of the agreement that the defendant will place sufficient funds at the disposal of the plaintiffs before the date of the delivery one would expect a demand to that effect after the transaction of purchase, but there is no evidence to that effect. The account book does not show that any latter was posted to the defendant prior to Asarh Sudi Punam Samvat 2000. The charges for postage relate to a latter which was posted on that date probably after the alleged transaction was closed. The evidence of the witnesses P. Ws. 1. 2 and 3 has been rightly disbelieved by the trial court for reasons which have been mentioned in detail above. The plaintiff's version in support of his case does not carry much weight for the agent in order to recover money for the principal must show by positive evidence how much out of pocket the agent has been in relation to the transaction of the agency. In the present case more reliable evidence than the account book of the plaintiffs themselves could have been produced, for the two transactions alleged to have been done for the defendant are said to have been transacted through brokers. In fact in Ex. P.-7 which relates to the purchase of two bales for the defendant, the name of broker is Chetan, and in the second transaction the name of the broker is Hanuman. These were not produced. Further the plaintiffs had also to prove that the market rate on Asarh Sudi Punam when they resold the bales in exercise of the authority given to them was the one at which the goods were sold. These bales were sold to a third party, and evidence could have been led to show that the said transaction of sale was, as a matter of fact, entered into at the rate mentioned by the plaintiffs. The plaintiffs have failed to prove even the correctness of the entries of their account books, for the only witness who speaks of Exs. P.-7 and 8 is the plaintiff Govind Narain, and he admitted in cross-examination that he was not certain on whose instructions these entries were recorded. The scribe Chandmal was not even produced. The plaintiffs have thus failed to prove that the transactions alleged by them were entered into under instructions of the plaintiff or that there was actual loss on the transactions. The plaintiff is, therefore, not liable for any loss. The claim for commission, interest, and other miscellaneous items also fails. The appeal is, therefore, allowed, the judgment and decree of the first appellate court are set aside, and that of the trial court restored with cost throughout. .;