- (1.) BAPNA, J. This is a second appeal by the defendant in a suit for recovery of damages.
(2.) THE case of the plaintiff-respondent Chiranjilal was that he had sent for a tin of ghee from Naraina, and one such tin of the value of Rs. 62/6/6 was handed over to the cartman of the defendant on 10th April, 1946, to be delivered to the plaintiff at Sambhar. This tin of ghee was duly received by the defendant, but he did not give delivery of the same. A notice was sent on the 21st of July, 1946, without any result. " THE plaintiff claimed Rs. 79/14/- as the cost of ghee wrongfully retained by the defendant. THE defendant's ver-sion was that he had his shop at Sambhar and an agent Shrinarain Ramdev at Naraina. THE defendant had a permit tor 25 tins of ghee to be imported from the then Jaipur State into Sambhar, which was then a Shamlat area, and his agent Shri Narain Ramdev sent 24 tins of ghee for the defendant and certain other persons, and one tin of ghee was given by the plaintiff's agent at Naraina to Shrinarain Ramdev to be carried to Sambhar under the permit held by the defendant. THE cart, which had been engaged for the transport of ghee belonged to the plaintiff himself, and the cartman was also an employee of the plaintiff. It was slated that when the tins of ghee were delivered to the defendant at Sambhar, it was found that three tins had been damaged during the journey and one of them was the tin which was sent for the plaintiff. THE cartman is alleged to have explain d that the bullocks got frightened on one occasion and three tins fell down, one of which came under the wheels of the cart and this was the tin which was to be delivered to the plaintiff. It was weighed next morning, and contained only 1 seer and 5 chhantaks of ghee, which the defendant had offered to deliver to the plaintiff but he did not accept the same. The trial court, after evidence, came to the conclusion that the defendant was not responsible for the safe transport of the ghee, as the cart was of the plaintiff, and the cartman was also an employee of the plaintiff, and these had been hired by Shri Narain Ramdev for the transport of ghee from Naraina to Sambhar. The court also found that three tins had been damaged during the way and one of the tins damaged was the one which was sent by the plaintiff's man for the plaintiff. It accordingly dismissed the suit, beyond a direction to the defendant that the defendant should give one seer and five chhantaks of ghee which had remained in the damaged tin, and should also return the damaged tin to the plaintiff. The parties were directed to their own costs. On appeal, the learned Additional District Judge, Jaipur, by his judgment of 26th September, 1950, was of opinion that the tin of ghee having been delivered by the plaintiff's agent to Shrinarain Ramdev, who was the agent of the defendant, the defendant himself was responsible for its safe delivery at Sambhar to the plaintiff. He also held that the fact of the damage to two or three tins in the way had not been proved. He accordingly allowed the appeal and gave a decree to the plaintiff with costs in both the courts. The defendant has filed this second appeal. Learned counsel for the appellant contended that if a second appeal did not lie the appeal may be treated as revision inasmuch as the first point decided by the first appellate court is against law, and in deciding the second point it did not take notice of the evidence which was on record. Learned counsel agreed that the Indian Code of Civil Procedure applied in Sambhar Shamlat area, and, therefore, under sec. 102, C. P. C. a second appeal does not appear to be competent. On going through the record, however, it is clear that the first appellate court did not discuss or take into consideration the evidence which was relied on by the first court for the finding that the tins of ghee were damaged in the way, and the tin of Chiranjilal was one of those damaged tins Beyond a statement of the conclusion that "the fact of two or three tins being lost in the way due to the bullocks having been got out of control has not been proved," the first appellate court did not discuss why the evidence relied on by the trial court was not accepted. It may be mentioned that the first court in its judgment had relied on the following factors in deciding issue No. 2 which related to this matter. It was observed that "the plaintiff's evidence that the tin of ghee had been received in a sound and safe condition at the shop of the defendant at Sambhar was interested inasmuch as P. W.- 1 Bhura cartman was the employee of the plaintiff, P. W. 2 Bhura Mali was an employee of the shop of Nemichand Dulichand, where the father of the plaintiff worked, and P. W. 3 Dulichand was the Munim of the plaintiff. " It was observed that "on the other hand there was the evidence of Chhoturam Constable D. W. 1, who was an independent witness. He said that he saw two or three tins being damaged, one of which appeared to have come under the wheel of the cart, and the cartman said that this was the tin of Chiranjilal. " He also relied on P. W. 4 Ladulal, who was the Munim of Shrinarain Ramdev at Naraina. Ladulal admitted that in the acknowledgment of the receipt of the tins, the defendant had sent information that, two or three tins had been damaged in the way. The court also relied on D. W. 2 Jagannath defendant himself, who produced the damaged tin Ex. D I in court, and also an entry Ex D. 2 in his register which showed that the three tins including the one of Chiranjilal had been damaged, and only 1 seer and 5 chhantaks of ghee remained in it. All this evidence was not discussed or referred to by the first appellate court. Where the appellate court overlooks important evidence on record relied on by the first court, it is a material irregularity in the exercise of jurisdiction. By taking this evidence into consideration, the finding of the first court appears to be correct. There is further circumstantial evidence in support of this finding. The tin of ghee was received on 10th April, at night. The plaintiff's case is that Phoolchand and his man Bhura Mali went to the shop of the defendant to take the tin. The version of Bhura is that the defendant said that it may remain at his shop, since it would not be used by the plaintiff at night Phoolchand's version is that the defendant asked him to take the tin in the morning. There is no substantial difference between the evidence of these witnesses, but the important point is that when Phoolchand went in the morning to take delivery of the ghee, the reply is alleged to be that it will be given later on. Now it is common knowledge that ghee is an article which deteriorates by lapse of time. The tin was a specific article, which belonged to the plaintiff. It only came to the shop or the defendant because the defendant had the permit to import ghee, and it ought to have been delivered at once. The plaintiff took three months in order to make a formal demand by notice. It is obvious that if the defendant had no excuse the plaintiff would have been serious in his demand immediately, and a notice to the defendant would have been expected much earlier. The register of the defendant Ex. D. 2 clearly shows that Chiranjilal's tin was received in a damaged condition. The other tin, which was damaged, was of Sitaram, and the third tin was of the defendant himself. On the first point also the finding of the first appellate court is not right, because the defendant had never accepted responsibility for the safe trans-port of the ghee. It may be that the firm Shrinarain Ramdev had accepted the responsibility of sending the tin of ghee given by the plaintiff's agent to Sambhar, but that was not the business of agency of Shrinarain Ramdev vis-a-vis the defendant, and, therefore, any undertaking by Shrinarain Ramdev was not binding on the defendant. The business of Shrinarain Ramdev was to purchase and send ghee to the plaintiff for his business. This despatch of the tin of ghee was gratuitous in order to oblige the plaintiff, and not within the business of the agency of Shrinarain Ramdev. The lower court was not right in the observation that as the firm Shrinarain Ramdev had accepted the tin for transport to Sambhar, the plaintiff was liable. The defendant's liability would have arisen, if the tin would have been handed over to him for delivery to the plaintiff. That liability would have arisen out of bailment, and it is on that basis that the trial court gave a decree to the plaintiff to receive 1 seer and 5 chhantaks of ghee and the damaged tin from the defendant. In my opinion this revision must be allowed. The judgment and decree of the first appellate court are set aside, and that of the trial court restored. The defendant will get his costs in this Court as also in the lower court. The costs of the first court will be easy according to the order of that court. . ;