1. This is an application by Madholal defendant to revise the order of the learned Judge, Karauli, remanding the case to the Court of the Munsif, Karauli, for decision according to the observations made in the appellate judgment. Originally, the defendant filed a second appeal but on the objection of the counsel for the opposite party that; no appeal lay against the order of the appellate Court, the defendant made an application that the appeal might be treated as a revision, as no appeal lay against the order of the lower Court. The facts giving rise to the revision are as follows; The plaintiff opposite party filed a suit against the defendant-applicant on the ground that he had been paid Rs. 300 by the plaintiff on 8-10-1943 for the purpose of purchasing 4 Mds. of Ganja from Sanawar in erstwhile Indore State, 2 Mds. of Genja valued at Rs. 150-11 was purchased by the defendant and made over to the plaintiff, Rs. 19-7 were spent on railway fare. Thus only Rs. 172-2 were spent out of the sum of Rs. 300, and the balance of Rs. 127-14 remained due from him which had not been paid. The plaintiff claimed this amount of Rs. 127-14 with interest at the rate of Re 1% per mensem. The total amount claimed was Rs. 193-7-6.
2. The main defence was that there was no privity of contract between the plaintiff and the defendant. The learned Munsif Karauli held this point in favour of the defendant and dismissed the suit. On appeal, the learned Civil Judge held that the plaintiff was entitled to recover the balance out of the sum of Rs. 300 from the defendant and has remanded the suit for the determination of the correct amount. Against this order second appeal was first filed, but no appeal lay as the order of remand could not under the circumstances of the ease, be under Order 41, Rule 23, Civil P. C. The only order of remand, which is appealable, is that under Order 41, Rule 23. The present order of remand, though described by the learned Civil Judge as under Order 41, Rule 23 and Section 151, Civil P. C., is in fact an order under Section 151, Civil P. C. and is consequently not appealable. An application was, therefore, made by the defendant's counsel to treat the appeal as revision and it has been so treated.
3. The main argument made by the learned counsel for the defendant-applicant, is that there was no privity of contrast between the parties. The applicant was only a sub agent of Laxami Narain who was in the position of an agent of the plaintiff. Under Section 192, Contract Act, where a sub-agent is properly appointed, he is responsible for his acts to the agent, but not to the principal, except in case of fraud or wilful wrong. under Section 193 where an agent with. out having authority to do so, has appointed a, person to act as a sub-agent, the agent stands towards such person in the relation of a principal and an agent, and is responsible for his acts both to the principal and to third persons; the principal is not represented by or responsible for the acts of the person so employed, nor is that person responsible to the principal. It was urged that the defendant, whether he was properly appointed as sub-agent or so appointed without any authority by the agent, be is not responsible to the plaintiff who is the principal. The Civil Judge was, therefore, wrong in holding the defendant as liable to the plaintiff.
4. On behalf of the opposite party it has been argued that the defendant was an agent of the plaintiff and not a sub-agent, and therefore he was responsible to the plaintiff. It was further argued, whether the lower appellate Court had rightly or wrongly hold the defendant to be ass agent of the plaintiff, it is only a mistake of law and therefore no revision lay.
5. I have considered the arguments of the learned counsel for both the parties. There can he no doubt that; a revision lies either when a jurisdiction not vested in a subordinate Court has been usurped or a jurisdiction so vested has not been exercised. It also lies when in the exercise of its jurisdiction a subordinate Court commits an illegality or material irregularity. It (does not lie when there is a mere mistake of law, howsoever gross it may be. It has been so held by their Lordships of the Privy Council in Venkatagiri Ayyangar v. Hindu Religious Endowment Board Madras, A. I. R. (36) 1949 P. C. 156: (76 I, A. 67). Therefore, if there is a mere mistake of law in the order of the Beamed Civil Judge a revision would not be competent. I have, therefore, to see whether the present case comes under any of the three cls. (a), (b) and (c) of Section 115.
6. I do not find that the learned Civil Judge has exercised any jurisdiction which did not vast in him, nor that ha has failed to exercise any jurisdiction vested in him. This is not the argument of the learned counsel for the applicant also. He has, however, argued that the learned Civil Judge did not at all apply his mind to the provisions of Sections 192 and 193, Contract Act, and consequently acted illegally in the exercise of his jurisdiction. From a careful reading of the judgment, I find that the learned Civil Judge has not at all considered as to what would be the effect, if the defendant be taken to be a subagent. Thus he has acted in breach of the provisions of these two sections. He has not; even held that the defendant was an agent of the plaintiff and not a sub-agent. Either there should be an evidence to the effect that the plaintiff appointed the defendant as his agent for the purpose of purchasing Ganja or there should be evidence to show that Laxami Narain who was the agent of the plaintiff held an express or implied authority to name another person to act for the plaintiff in the absence of the agency, and that the defendant was named accordingly. The judgment of the learned Civil Judge doss not show that he addressed himself to the question whether there was any such evidence. The judgment does not at ail show how the learned' Civil Judge came to a finding that the defendant was liable to the plaintiff foe the payment of the balance, out of Rs. 300. I therefore hold that the learned Civil Judge acted illegally in the exercise of his jurisdiction and therefore his order cannot stand.
7. The revision is allowed, the order of the lower Court is set aside and the case is sent back to it for deciding the appeal in the light of the observations made above.
8. The costs of this revision shall abide the result of the appeal after this remand.