Norman Macleod, Kt., C.J.
1. The plaintiff filed this suit in the Court of Small Causes, Bombay, alleging that the defendants requested him to order out aniline dyes on certain terms as to commission,
2. On the account which subsisted between the plaintiff and the defendant with regard to that transaction he claimed Rs. 1061-2-6 with interest from Kartak Sud 3, 1977, to Aso Vad 30, 1978, amounting to Rs. 145-1-6.
3. The defendants applied to the High Court for a transfer on the strength of an affidavit in which they alleged-
(1) that the defendants did not request the plaintiff to order out goods to them;
(2) that defendants indented for goods from an Italian firm In. Iridescente;
(3) that the said firm supplied the goods to the defendants through the plaintiff as agent of the firm;
(4) that plaintiff had no right to sue in his own name since he was the agent of a disclosed principal;
(5) that the defendants had a claim against the said firm for shortage and late delivery amounting to Rs, 4000 against the balance of price of the goods supplied. To ascertain the amount an account would have to be taken of all the goods supplied from time to time;
(6) that the defendants counter-claimed against the plaintiff for such amount as would be found due on taking such account. 1
4. The plaint, though undated, must have been filed in 1922.
5. On June 19, 1923, an order was made for a transfer of the suit to the High Court on the defendants depositing the amount of the claim and Rs. 400 for costs in Court.
6. Affidavits of documents were filed by both parties and on August 13 the defendants took out a summons for an order that the preliminary issue ' whether the suit as framed by the plaintiff was maintainable ' should be determined immediately.
7. Lengthy affidavits were filed and on August 20 the Chamber Judge, after hearing counsel, directed that the suit should be set down for trial on September 17. Why this suit should have been given preference over the numerous older suits then waiting for trial is not apparent. The case was eventually heard for eight days before Fawcett J. from January 18-29, 1924.
8. The following issues were raised :-
1. Whether the defendants' contract for certain aniline dyes out of which the suit has arisen was with the plaintiff or the firm of La Iridescente?
2 Whether the plaintiff's suit is merely in respect of the amount of custom duty and expenses incurred on those goods or id in respect of the balance of the whole account of those goods from the beginning '
3. Whether in clearing those goods the plaintiff acted as agent of the defendants V
4. Whether in the event of its being held that the plaintiff was the agent of La Iridescente either in the transaction of clearing the goods or of the sale thereof, the plaintiff can maintain the suit?
5. Was struck out.
6. In the event of its being held that the suit is maintainable whether it was a term of the contract that the goods should be immediately shipped and do levered to defendants before Diwali 1976 (October 1920) ?
7. Whether the defendants directly or indirectly agreed with the plaintiff that the latter should supply the dye known as Kongo Red 12 B to the defendants and it so, at the price charged by him V
8. Whether the plaintiff had been guilty of late delivery ?
9. In the event of its being held that goods were delivered late, are the defendants liable for the higher customs duties that had to be paid on account of such late delivery ?
10. Whether the defendants are entitled to damages and if so to how much on account of the late delivery after the goods arrived in Bombay Harbour ?
11. General issue.
9. The learned Judge in the early part of the judgment pointed out the difficulties which had arisen, first owing to the erroneous statements in the plaint, and, secondly, to the fact that there was no formal written statement on the record and no counterclaim.
10. However he allowed the- plaintiff to go on without amending r. his plaint, and allowed the defendants to pursue their counterclaim without its being specifically stated in the pleadings, and observed that some rule should be framed to secure improvement in such matters, when a suit was transferred from the Small Causes Court,
11. The difficulties which had arisen could have been surmounted if the proper proceedings had been taken in Chambers. When the summons of August, 13 was before the Judge the plaintiff could have applied for a proper written statement and counterclaim, while the defendants could have asked on the strength of the documents then Vie fore them fur an amendment of the plaint.
12. The important documents were :-
(1) Letter dated August 10 from La Iridesctmte to the defendants offering certain goods,
(2) Letter dated August 15 front defendants to La Iridesc-ente accepting certain goods out of those offered and asking for five Congo Red 12 B .Lion case to be included. The letter concludes: 'As arranged between us yon (La Tridescente) will arrange with Mr. Gulabsiugh (plaintiff) to clear the goods on arrival and deliver the same to me against payment.'
(3) Sale note by La [ridescentc to the defendants of the goods accepted by the defendants with the following addition: 'Congo Red 12 B Lion is on special contract with Mr. Gulab-singh, therefore 1 have passed these orders to him and shall request him to execute same at equal pride and terms as 111 B 405 quality (4.-10 n r 1b.)
13. On a reference to the account annexed to the plaint it will be found that it contains no item relating to Con-go Red 12 B. As a matter of fact plaintiff sent six cases of this number to the defendants at Agra.
14. It is difficult to find any justification for the inclusion of issue No. 7 in the suit The plaintiff had actually brought a suit in the Small Causes Court against .Khirnchand, who was acting as defendants' agent when the sale note of August 18 was received for the balance of Rs. 83 duo on this transaction. The defendants contended that the price was 4-1.0-0 per lb. and not 5-2-0, and claimed in this suit to set off Rs. 203 and shown in their account of August 30, 1920, referred to by the Judge at p. 89, line 13, of the Printed Book, which, however, I cannot find in the index to Exhibits at the beginning of Part III.
15. It was sufficiently embarrassing to deal with a plaint which had to be abandoned, and with a counter-chum which was not made in proper form and without any particulars. TodtaU with an item which had nothing to do with the plaintiff's claim, and of which no mention was made in the pleadings could only tend to increase the embarrassment.
16. It must first be noted that the plaintiff's claim was for the balance due on an account for goods supplied to the defendants at their request.
17. That claim failed entirely. As the Judge finds and as Exhts. B 0 and A clearly show the goods were supplied to the defendants by La Iridescente, The plaintiff, however, without any amendment was allowed to continue the suit on the footing of his being an agent of the defendants to clear the goods which they had ordered from La Iridescente, Defendants wanted to show that plaintiff was the agent of La Iridescente and not of the defendants and with this object desired to cross-examine on this question. The cross-examination was disallowed on the ground that the contention was absurd in view of the agreement evidenced by Exh. C, that with the consent of the defendants the plaintiff should clear the goods on arrival and deliver them to defendants on payment.
18. At first sight it would seem clear that La Irideseente were to arrange with plaintiff to clear the goods as they arrived and deliver them to the defendants on payment, in which case the plaintiff would be the agent of La Iridescente. Mr. Kemp has pointed out that the contract was on c. i, f terms and therefore La Iridescente had only to hand over the documents to the defendants in exchange for the price This may have been the intention, but Exh. C says that first the agent of La Iridescente was to arrange with plaintiff to clear the goods and to deliver them to the defendants on payment. Consequently defendants should have been allowed to cross-examine the plaintiffs witnesses to ascertain what actually happened.
19. But to my mind it was a fatal error on the part of the learned Judge to allow the plaintiff to continue the suit on the original plaint. The written statement of the defendants was a complete answer to it, but by a continuance of the proceedings defendants were eventually barred from pressing any claim they may have had against La Iridesconte for damages under the contract incurred owing to late delivery. It may be said that they might have Hied an action against La Iridescente, but the plaintiff was issuing on the contract himself, and consequently as long as the plaint was on the Hie they were justified in claiming damages against him.
20. Now the learned Judge might have allowed the amendment, but instead of doing that he allowed issues to be raised as if the plaint had been amended; but we cannot reconstruct from the issues the pleadings as they should have been framed before issues were raised or evidence led. We must consider ourselves whether the plaint could have been amended according to the rules which are usually observed by the Court when an. application for amendment is made. The most important rule is that a plaintiff cannot by amendment be allowed to substitute one plaint for another, and the plaintiff would have had to do this for an amendment to have been of any use to him. He sued as principal on a contract alleged to have been made with him by the defendants for the import of certain goods on c. i. f. terms, He would then have been entitled to recover the price of the goods in exchange for the documents. No question would arise with regard to the payment of custom dues or landing charges. He wants now to sue as the defendants' agent who has on receipt of the shipping documents cleared and delivered the goods to his principal. That is obviously a claim based on an entirely different cause of action, and the plaintiff should have been told to file a fresh suit, and the present suit should have been dismissed.
21. This is the order we must make now We regret it, but the only other alternative would be to direct fresh pleadings to be drawn, and to send this case back for re-trial, when the evidence which we think was wrongly excluded would have to be recorded. We do not think we are justified in imposing this burden on the defendants apart from the fact that we have no desire to depart from the rule referred to above. However leniently the rules regarding the amendment of pleadings in this country should be construed to prevent a failure of justice, it would certainly impede tin-, administration of justice if this particular rule were not strictly observed.
22. The history of this case is a lamentable example of what can happen when it is disregarded altogether, and a plaintiff, even without an amendment, is allowed to go to trial on some cause of action which cannot be ascertained from any definite source. The defendants are not wholly free from blame. They claimed a set-off for the small sum of Rs. 203 on a contract which was entirely outside the suit. It could only have been dealt with as a counter-claim, but from the record a considerable amount of evidence was taken on it, and the Judge has devoted a considerable portion of the judgment to the discussion whether the plaintiff could charge the defendants Rs. 4-10-0 or Rs. 5-2-0 for the six cases of dyes which he sold them.
23. We think, therefore, that the plaintiff must pay to the defendants only half their costs in the Court below, and all their costs of the appeal.