C.M. Lodha, J.
1. This is a revision application by the defendant under Section 23 of the Rajasthan Small Cause Courts Ordinance, 1950 (Ordinance No. VIII of 1950) from the judgment and decree by Judge, Small Cause Court, Jaipur City, dated 18-5-70 by which an ex parte decree for Rs. 500/- was passed against the petitioner.
2. Two points have been argued in support of the revision application. It is submitted in the first instance that the Small Cause Court had no jurisdiction to try the suit and secondly it is argued that there is absolutely no legal evidence on which the decree can be sustained.
3. The plaintiff non-petitioner alleged in the plaint that he had entered into a contract with the Assistant Engineer, Engineering Cell (Fisheries)'. Government of Rajasthan. Jaipur, to supply two generators on hire for five davs from 28-5-69 onwards. But by his letter dated 28-5-69 received at about 5 p. m. marked Ex. 4, the Assistant Engineer cancelled the contract. The plaintiff's case is that on account of the said act of the Assistant Engineer, he was put to a loss of Rs. 500/- for which he filed the present suit in the Court of Small Causes. Jaipur City. The defendant, the State of Rajasthan, neither filed a written statement nor out in appearance on the adjourned date of hearing and consequently on the basis of an affidavit filed by the plaintiff, the learned Judge decreed the plaintiff's suit (ex parte) as prayed.
4. The contention of learned counsel for the petitioner is that the suit is not for damages, pure and simple, on account of breach of contract but is one concerning an act or order made by an officer of the State Government in his official capacity and is, therefore, excepted from the cognizance of a Court of Small Causes under Article 3 of the Schedule appended to the Ordinance. In support of his contention, he has placed reliance on Sital Prasad v. United Provinces AIR 1940 Oudh 245. On the other hand, learned counsel for the non-petitioner has urged that the present is a case of mere failure on the part of the Government officer to carry out a contract and consequently it cannot be regarded as a suit concerning an act or order purporting to be done or made by an officer of the Government in his official capacity. He has relied upon Secretary of State v. Avlavaiiula Ramabrahman AIR 1914 Mad 578 (1). M. R. Salunke v. R. Zalimsinah AIR 1960 Madh Pra 30 and Chunnilal R. & Co. v. Union of India AIR 1970 Bom 307.
5. Article 3 of the Schedule to the Small Cause Courts Ordinance onwhich reliance has been placed reads as under:--
'3. A suit concerning an act or order purporting to be done or made by any other officer of the State Government in his official capacity or by a Court of Wards or by an officer of a Court of Wards in the execution of his office.'
6. From the language of the Ordinance, it is clear that the act contemplated by this article is not a mere neglect Or omission of duty, such as any private individual may be guilty of, but it means some distinct act purporting to be done by a Government officer under the authority of his office and reasonably falling within the scope of such authority: and the plaintiff, to bring a case under this Article, must allege some particular act of a particular official which has given rise to the suit. In AIR 1970 Bom 307 (supra), it was held that a suit for compensation for loss or injury to goods entrusted to a Railway as a carrier is essentially a suit for damages for breach of contract and such a breach of contract committed by a railway administration cannot be regarded as an act done or purporting to be done by or by order of the Central Government within the meaning of Article 1. It was further held that Article 3 also does not cover a suit on a breach of contract by the railway administration because a breach of contract cannot be regarded as an act purporting to be done by an officer of the Central Government in his official capacity. It was also observed that no specific act of an officer of the Central Government is required to be alleged by the plaintiff who files a suit for compensation for loss or injury to his goods entrusted to a railway as a public carrier.
7. AIR 1914 Mad 578 (1) (supra) was also a case of recovery of the amount due to the plaintiff under a contract entered into by him with the Government and the dispute between the parties was that the plaintiff alleged that he had performed his part of the contract and was entitled to the amount due to him under it whereas the defendant's case was that the work undertaken by the plaintiff had not been carried out. The learned Judges were of the opinion that Article 3 Schedule 2 of the Provincial Small Cause Courts Act does not apply to a suit for damages on account of the failure to perform a contract.
8. In AIR 1940 Oudh 245 (supra) the plaintiff had tendered for the supply of moon grass to the jails of the United Provinces and had deposited some money by way of security for the performance of the contract. The Inspector General of Prisons cancelled the acceptance of the tender and ordered forfeiture of the security money. The plaintiff sued in the Court of Small Causes for damages for the cancellation of the tender and for return of security amount. It was held that the suit was not maintainable in a Small Cause Court. Yorke J. observed that the very essence of the suit was a claim founded on the allegation that the Inspector General of Prisons was not entitled to accept or at any rate forfeit the security amount deposited under it and that the Provincial Government was liable for damages arising out of other consequences of that act.
9. The question is not free from difficulty. However, what appears to me to be of importance in a case like the present is to find out as to what is the foundation of the plaintiff's claim and as to whether it is the breach of contract which had given rise to a suit for damages or it is the act or order purporting to be done or made by any officer of the Government in his official capacity which has given rise to the suit for damages arising out of consequences of that act.
10. In the present case, the essence of the matter is that the Government had committed a breach of contract. The letter issued by the Assistant Engineer only demonstrates the alleged breach and does not, entail any further consequences. In the Oudh case (supra) the Inspector General of Prisons had not only cancelled the tender but had forfeited the security amount and therefore, the order was of much consequence. On going through the letter Ex. 4. I am inclined to think that it is a communication by the Assistant Engineer to the plaintiff that for certain reasons the Government was not prepared to stick to the contract. The suit for damages could be maintainable in the present case even if no specific act of an officer as evidenced by Ex. 4 was alleged. Thus the essence of the matter in the present case is breach of the contract on the part of the Government and the suit cannot be said to be a suit concerning any act or order purporting to be done or made by any officer of the Government in his official capacity.
11. There is another reason for coming to this conclusion and it is this that the breach of contract was not committed under cover of any alleged authority conferred upon the Assistant Engineer as Officer of the Government but was such an act as any private individual or a private company might have been held liable for. In this view of the matter, I hold that the suit is not excepted from the cognizance of a Court of Small Causes.
12. The other point urged by the learned Deputy Government Advocate isof course more formidable. A perusal of the order sheets of the court below shows that neither there was any agreement between the parties to give evidence by affidavits nor was there any order permitting the Plaintiff to do so. It was, therefore, necessary for the court to have recorded evidence under Order 18 Rule 13 C.P. C. though it could have made a memorandum of a substance of what the witness deposed. Besides that, on looking into the affidavit, I have found that it had not been properly verified, and is consequently no affidavit in the eve of law. There being no other evidence in the case except the affidavit of the plaintiff which, as I have held above, is inadmissible, the decree granted by the lower court cannot be sustained.
13. Accordingly I partly allow the revision application, set aside the judgment and decree of the court below and remand the case to it for fresh trial in accordance with law. There will be no order as to costs.