SOBHAG MAL JAIN, J. - (1.) THIS appeal is directed against the judgment dated the 5th April 1976 of the Additional District Judge, Churu dismissing the plaintiff's appeal against the judgment and decree of Munsif, Rajgarh dated August 21, 1974 decreeing the plaintiff's suit for Rs. 489.70p.
(2.) THE plaintiff firm Banshidhar Jeewan Ram by a telegram asked the defendant to supply two wagons of Moong. In response the defendant firm despatched two wagons of moong through railway. The railway receipt was sent to the plaintiff firm along with an invoice of the consignment. The plaintiff firm made the payment and took delivery of the wagons, but got the goods weighed, which revealed a shortage of 255 kgms. of the value of Rs. 290.70p. The plaintiff also objected to the commission charge amounting to Rs. 199/ -. When their claim was not met by the defendant a civil suit was filed in the court of Munsif, Rajgarh. The suit was contested by the defendant. According to the defendant the net weight of each bag was 100 kgms. That case was that the weight of the bags i.e. bardanawas also included in the same. It also defended its right to claim commission separately. After trial, the Munsif, Rajgarh decreed the plaintiff's suit holding inter alia, that on weighing the goods there was a shortage of 255 kgms. of, Moong amounting to Rs. 299.70p. The trial court also came to the conclusion that the defendant was not entitled to charge the commission separately. On appeal, the learned Additional District Judge, Churu upheld the decree passed by the learned Munsif. The learned Additional District Judge concurred with the finding of the Munsif that there was a shortage of 255 kgms. of moong and the plaintiff firm was entitled to recover a sum of Rs. 290 70p. being the cost of Mooing so short supplied. Learned Additional District Judge also held that this being a builti -cut transaction, the amount of commission could not be charged separately, as it was included in the costs upto the stage of railway receipt. Aggrieved, the appellant has filed the present appeal.
(3.) THERE being a concurrent finding of fact that there was a shortage of 255 kgms. of Mooing amounting to Rs. 290.70p. the plaintiff was clearly entitled to claim the refund of the cost thereto. After going through the judgment of the Additional District Judge, I do not find any error to permit interference in second appeal. The question of commission stands decided by the decision of this court in AIR 1962 Rajasthan 122, the reference to which has been made by the District Judge in the judgment under appeal. In view of this it is not possible to accept the contention of the learned Counsel for the appellant that appellant is entitled to separately charge his commission.;