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Basant Lal and Sons Vs. Surya Kant Pooran Mal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 404 of 1964
Judge
Reported inAIR1967All294
ActsProvincial Small Cause Courts Act, 1887 - Sections 25; Bengal, Agra and Assam Civil Courts Act, 1887 - Sections 40; Sugar (Control) Order, 1955
AppellantBasant Lal and Sons
RespondentSurya Kant Pooran Mal and anr.
Appellant AdvocateHari Swarup, Adv.
Respondent AdvocateS.P. Gupta, Adv.
DispositionApplication dismissed
Excerpt:
.....the agreement was subject to government restrictions, and consequently, if the government fixed ex-factory price and the price so fixed was applicable to a dealer like the plaintiffs also, the ex-factory price payable shall stand reduced accordingly and the plaintiffs shall not be able to recover the price of goods sold at the contractual rate. 8. this view cannot be said to be inequitable considering that it could be the intention of the central government to exclude from consideration sellers who sell sugar ex-factory, there being strong possibility that ex-factory sellers are connected with the producers or their selling agents and ex-factory sellers have come into the picture to charge for sugar in excess of the sale price fixed for producers. their lordships of the supreme court had..........and another, defendants, and thereby decreeing the suit for a sum of rs. 11.41 paisas only. the judge small cause court had decreed the suit for rs. 619-9-3 on the ground that the plaintiffs were entitled to recover the sale price as agreed upon. the additional district judge took a contrary view holding that the ex-factory price as fixed under the government order was applicable and the plaintiffs could not claim sale consideration at that rate. this is why the amount of the decree was reduced to rs. 11.41 paisas. 2. it was first of all contended on behalf of the plaintiffs that the additional district judge had no jurisdiction to hear the revision under section 25 of the provincial small cause courts act and, consequently the order under revision deserves to be set aside and the.....
Judgment:
ORDER

D.S. Mathur, J.

1. This is a revision under Section 115, C, P. C. by M/s. Basant Lal Mittal and Sons, plaintiffs, against the order of the Additional District Judge of Agra allowing the revision under Section 25 of the Provincial Small Cause Courts Act of M/s. Surya Kant Pooran Mal and another, defendants, and thereby decreeing the suit for a sum of Rs. 11.41 paisas only. The Judge Small Cause Court had decreed the suit for Rs. 619-9-3 on the ground that the plaintiffs were entitled to recover the sale price as agreed upon. The Additional District Judge took a contrary view holding that the ex-factory price as fixed under the Government Order was applicable and the plaintiffs could not claim sale consideration at that rate. This is why the amount of the decree was reduced to Rs. 11.41 paisas.

2. It was first of all contended on behalf of the plaintiffs that the Additional District Judge had no jurisdiction to hear the revision under Section 25 of the Provincial Small Cause Courts Act and, consequently the order under revision deserves to be set aside and the revision under Section 25 remanded for a fresh hearing by the District Judge. This contention was repelled by me in the case of Maya Ram v. Sant Ram. 1964 All LJ 998. In other case also a request was made for reconsideration on the ground that the effect of Section 40 of the Bengal. Agra and Assam Civil Courts Act had not been considered. None of these caseswere marked A. F. R. simply because it was not necessary to increase the number of A. F. R. cases on account of a new point being raised a point which did not appeal to the Court to have any importance. To make this judgment complete I shall refer to the scope and effect of Section 40 of the Bengal, Agra and Assam Civil Courts Act.

3. Sub-section (1) of Section 40 of the above Act provides that this section and also a few other sections of the Act apply to Courts of Small Causes constituted under the Provincial Small Cause Courts Act, 1887. Sub-section (2) further clarifies that the other sections of this Act do not apply to these Courts, i.e., Courts of Small Causes constituted under the Provincial Small Cause Courts Act. The words 'Courts of Small Causes constituted under the Provincial Small Cause Courts Act, 1887' are of great significance and make it clear that Section 40 applies to such Courts and not to others. The Court of the District Judge or of the Additional District Judge is not a Court of Small Causes and it is also not a Court constituted under the Provincial Small Cause Courts Act. The Courts constituted under the Provincial Small Cause Courts Act are those which are constituted under Section 5 of that Act. In other words, therefore, all the provisions of the Bengal, Agra and Assam Civil Courts Act shall apply to the Courts of the District Judge and of the Additional District Judge while entertaining revisions under Section 25 of the Provincial Small Cause Courts Act and such revisions can also be transferred to the Additional District Judge for hearing.

4. Section 25 of the Provincial Small Cause Courts Act, as amended under the U. P. Civil Laws Amendment Act, gives power to the District Judge including an Additional District Judge to exercise the revisional jurisdiction where the decision of the Judge, Small Cause Court, is not according to law. Where the finding of fact recorded is perverse, it shall become a question of law and the District Judge can set aside such a decision of the Judge. Small Cause Court.

5. In the instant case the interpretation of the agreement was, in substance, not in issue. The document is so clear and unambiguous that it could not be given more than one meaning. It is the application of the Sugar (Control) Order, 1955, and the Government Order issued thereunder which have the effect of disallowing the plaintiffs the price contracted upon.

6. Under the agreement the price ex-factory of the Sugar sold was Rs. 36-14-0 per maund. The actual words used are 'price ex factory' which would mean nothing else than ex-factory price. The agreement was subject to Government restrictions, and consequently, if the Government fixed ex-factory price and the price so fixed was applicable to a dealer like the plaintiffs also, the ex-factory price payable shall stand reduced accordingly and the plaintiffs shall not be able to recover the price of goods sold at the contractual rate.

7. The Government Order, if read as a whole, can suggest that the ex-factory price fixed therein was meant to apply to producers only; but in view of the definition of 'ex-factory price' contained in the Sugar (Control) Order, 1955, such restricted meaning cannot be assigned to this term. In Clause 2 (b) of the Sugar (Control) Order, 1955, ex-factory price is defined to include the price of sugar inclusive of excise duty to be loaded at the buyer's option and it also includes all incidental charges which are on account of the ex-factory seller. In this definition both the words 'producer' and 'seller' have been used. 'Producer' is not necessarily a 'seller' as contemplated by this Order. Thus every seller selling goods ex-factory shall be an ex-factory seller. When the word 'seller' was intentionally used, it shall include all the sellers and not merely producers. In other words, whenever ex-factory price is fixed under the Sugar (Control) Order, it shall apply not only to a producer but also to an ex-factory seller.

8. This view cannot be said to be inequitable considering that it could be the intention of the Central Government to exclude from consideration sellers who sell sugar ex-factory, there being strong possibility that ex-factory sellers are connected with the producers or their selling agents and ex-factory sellers have come into the picture to charge for sugar in excess of the sale price fixed for producers.

9. The case of Diwan Sugar and General Mills (Private) Ltd. v. The Union of India, AIR 1959 SC 626 relied upon by the learned advocate for the plaintiffs-applicants is of no help. Therein the meaning and scope of the term 'ex-factory price' had not been considered. Their Lordships of the Supreme Court had divided the prices prevalent in the market for a commodity like sugar on three grounds; namely, ex-factory price, wholesale price and retail price. Where there is a dealer in between the producer and wholesaler he can charge the ex-factory price and realise commission from the producer, or he can charge a price between ex-factory price and wholesale price; but where he decides to supply the goods ex-factory and to charge ex-factory price, the price of the goods payable shall be ex-factory price and hence the ex-factory price as fixed by the Government under Sugar (Control) Order, 1955.

10. To sum up, the ex-factory price fixed under the Government Order was applicable to the plaintiffs also and when the Trial Judge recorded the finding that the Government Order was not applicable to the plaintiffs, the finding was against the law and such finding could be upset in revision under Section 25 of the Provincial Small Cause Courts Act.

11. The revision has thus no force andit is hereby dismissed. Costs of this Court onthe parties.


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