JUDGMENT
1. The Subordinate Judge is mistaken in saying that Exs. 5 Series, 6 Series, 7 Series and 8 Series mention Ralli Brothers as the other contracting party. They mention “Messrs Agency Ralli Freres” which I take to me an “The Agents of Ralli Brothers.”
2. Prabably they mean the agents at Pondicherry of whom defendant 1 alleges that he is only a sub-agent (para. 6). The lower Court's finding on issue 4 cannot be accepted as it is vitiated by its misreading of these documents. He is requested to give a revised finding after considering the question whether he is merely a sub-agent of the Pondicherry agency and whether, if the contract was with the Pondicherry agency, defendant 1 will be liable. He will also consider the oral evidence (if any) on the record as to defendant 1's undertaking to be personally liable before coming to his conclusions.
3. He will also give a finding on issue 3.
4. The time for the submission of the findings will be one month from date of the receipt of the records.
5. Seven days will be allowed for filing objections.
6. Findings.—The above suit has been remanded for a revised, finding on the evidence on record on point 4 and for a finding on point 3.
7. Point 4.—Defendant 1 in para. 6 of his written statement says that he is merely the sub-agent of Messrs Ralli Brothers at Patukota. In his deposition as his witness, he swears that he was appointed sub-agent at Pattukota by the chief agent of Messrs Ralli Brothers at Pondicherry. Ex. 1 is a letter written by one of plaintiff's kariasthans apparently to defendant 1, in which he is described as the sub-agent of Messrs Ralli Brothers at Pattukota. Exs. 8 and 8(a) are day-book and ledger maintained by defendant 1. They are described as the accounts of Messrs Ralli Brothers' sub-agency at Pattukota. These documents corroborate defendant 1's statement that he is only a sub-agent. I hold therefore that defendant 1 was only a sub-agent appointed by the chief agent of Messrs Ralli Brothers at Pondicherry.
8. Exhibits 5, 5(a) and 5(b) are the sale memos, relating to the contracts in question. They were executed by defendant 2 (alleged agent of the plaintiff) to the agent of Messrs Ralli Brothers at Pondicherry. Exs. 7, 7(a) and 7(b) are memos, of accounts relating to the said contracts and it is stated in them that they are accounts of defendant 2 with the agent of Messrs Ralli Brothers at Pondicherry. It is therefore clear that the agent of Messrs Ralli Brothers at Pondicherry was in writing made the contracting party and that the contracts-in question were made directly in his name.
9. The plaintiff's pleader here has not pointed out to me any authority to show that in the circumstances of the case defendant 1 is personally liable for the plaint claim. He merely relies on the statement of the plaintiff made in his deposition as his first witness that he looked to defendant 1 for payment of the money due in respect of these contracts. These contracts were entered into, not by the plaintiff personally, but by defendant 2. In the plaintiff's accounts, Exs. A Series, no mention is made of defendant 1's name in any place, but it is shown in them that the dealings are with Messrs Ralli Brothers, Pattukota. The plaintiff's statement in the light of documents in the case appears improbable and I do not believe it. I hold that the contracts in question were with the agent of Messrs Ralli Brothers at Pondicherry and that defendant 1 did not undertake to be personally liable to the plaintiff for the money alleged to be due in respect of the said contracts.
10. Section 192 of the Contract Act, lays down that the sub-agent is responsible for his acts to the agent, but not to the principal except in case of fraud or wilfulness. S. 230 does not in terms apply to sub-agents. If the agent of Messrs Ralli Brothers at Pondicherry is to be treated as the principal, and the sub-agent (defendant 1) as his agent at Pattukota, the principle of the decision reported in Tutika Basavaraju…(Plaintiff), v. Parry & Co.…(Defendants), *(1) applies. I find point 4 against the plaintiff and in favour of defendant 1.
11. Defendant 2 does not put in his appearance either in person or by a pleader. The plaintiff's pleader and defendant 1's pleader here put in memos, asking me not to give any finding on point 3 and I therefore record no finding.
12. (After the return by the lower Court of the findings on the issues referred, the Court delivered the following)
JUDGMENT
13. When this case came on before me on the 31st October 1912, the interested respondent (defendant 1) did not appear and I called for a revised finding, believing, in the light of the argument of the petitioner's vakil, that a French expression used in Exhibits 5 Series et cetera meant: “The Agents of Ralli Brothers.” The respondent's learned vakil now tells me that expression has the meaning: “The Agency business carried on by the firm of Ralli Brothers.” I am not quite sure that a respondent, who did not appear when an appeal or a revision petition was called on or argued on the first day of the hearing, can afterwards appear as of right and claim to be heard at later stages of the case without the permission of the Court. However I shall allow him to appear, assuming that such permission is required.
14. It is unnecessary to consider the meaning of that French expression further, for, whether the defendant is a sub-agent under the agent of Ralli Brothers, or is an agent directly of the firm of Ralli Brothers, the contract with plaintiff was in writing, and according to the ruling in Tutika Basavaraju…(Plaintiff), v. Parry & Co.…(Defendants), * the presumption raised under Section 230 of the Contract Act, is rebutted by the fact that the contract is made in the name of defendant 1's principal (whoever he may be) and not of defendant 1.
15. As regards the Subordinate Judge's refusal to add Ralli Brothers as defendants, it is too late to add them now having regard to Section 22 of the Lim. Act. The petition is dismissed with only half of defendant 1's costs as defendant 1's failure to appear on the first occasion has unnecessarily delayed the disposal of this case.
S.N/R.K
16. Petition dismissed.