Hajee Abdul Latheef vs Sri Sarguru Sarva Samarasa Sangam and others

Krishnaswamy Reddy, J.—This revision petition has been filed by the plaintiff against the judgment and decree of the learned Subordinate Judge, Ootacamund, dismissing a portion of the claim made by the plaintiff in S.C. 451 of 1963. The plaintiff filed the suit for recovery of a sum of Rs. 1773 being the lorry hire charges due from the defendants. The first defendant in the suit Sri Sarguru Sarva Samarasa Sangam, represented by its President Ramaswami Adigal, was a registered Sangam at Coonoor of which the second respondent was its President. The third defendant was the Sixth All Tribal Welfare Board represented by its Secretaries. The case of the plaintiff is that the defendant requested the plaintiff who is a lorry owner to transport hill tribes from various parts of the hills to Ootacamund between 20th May to 23rd May 1960 when All India Tribal Welfare Board had its conference, at Ootacamund. The plaintiff plied four lorries and transported hill tribes to the conference at Ootacamund and on that account he made a claim for Rs. 1173-06 as arrears due to him. The second defendant has personally undertaken to pay the arrears and therefore he was personally liable for the amount claimed by him.

The first defendant, Sri Sarguru Sarva Samarasa Sangam resisted the claim stating that it had nothing to do with the Tribal Conference and that there was no contract between the first defendant and the plaintiff. The second defendant contended in the suit that he was the life President of the first defendant Sangam and that he was not personally liable for any claim made by the plaintiff, and if the plaintiff had any relief, he should proceed against the third defendant, namely, the All India Tribunal Welfare Board. The second defendant alto disputed the quantum of arrears and refuted some of the items claimed by the plaintiff. The third defendant, represented by one of the Secretaries filed a written statement stating that the Board had nothing to do with the alleged transactions and that he was an unnecessary party to the suit.

The learned Subordinate Judge dismissed the suit against the first defendant, but he held that the second defendant was personally liable for the claim made by the plaintiff and that the third defendant was also liable for the claim. Regarding the quantum of the claim made by the plaintiff, the learned Subordinate Judge disallowed a portion of the claim and decreed the suit against defendants 2 and 3 for a sum of Rs. 494-94 with proportionate costs. Three items of amounts were disputed by the defendants, namely-(1) The hire charges due for the lorry MDN 3531, (2) a sum of Rs. 140 which was claimed by the plaintiff as waiting charges for two lorries for two days and (3) a sum of Rs. 81-06. The learned Subordinate Judge, so far as Item No. 2 is concerned, held that there was no contract between the parties that waiting charges should be paid and in the absence of such a contract the claim for Rs.140 on that account cannot be sustained. Learned Counsel for the petitioner is unable to show as to how the plaintiff was entitled to this sum in the absence of an agreement. This portion of the claim has been rightly disallowed. Even with regard to Item No. 3 Rs. 81-06, I am of the opinion that this has also been rightly disallowed. In the ledger filed by the plaintiff marked as Ex. P. 2, this item of the claim has not been entered and the plaintiff has not satisfactorily proved the claim for this amount. I therefore do not find any reason to interfere with the findings of disallowing the claim of Rs. 140 and Rs. 81-06 covered by Itemed and 3.

So far as Item No. 1 is concerned, namely, the hire charges claimed by the plaintiff for the lorry MDN 3531, the contention of the defendants is that this lorry never plied for the conference add that it had no permit at all by the Regional Transport Authority to ply. The learned Subordinate Judge upheld the contention of the defendants and disallowed the claim. There cannot be any dispute that the lorry MDN 3531 had no permit to ply for the Conference. Ex. B. 1, the copy of the proceedings of the Collector of the Nilgiris dated 19th May 1960 shows that the lorry had no permit to ply for conference. The learned Subordinate Judge found that even if the lorry was utilised for carrying persons for the conference, the claim is unsustainable on the ground that the transport was illegal. He also observed that the plaintiff had not produced his trip sheet to show that the lorry had actually plied.

Learned Counsel for the petitioner contends that the finding of the learned Subordinate Judge that the claim of hire charges for the lorry MDN 3531, was illegal is not correct as the claim was not made on an illegal contract. I see there is force in this contention. The learned Subordinate Judge, in disallowing the claim on the ground of illegality was probably having in his mind Sec. 23 of the Indian Contract Act. According to the contract, the defendants are interested only in the transport of hill tribes to the conference and there is nothing illegal in the contract itself nor can it be said that any public policy is involved. It is true that if the lorry had plied without a permit it will be an offence under the provisions of the Motor Vehicles Act. The right to claim the hire charges by the plaintiff is not based on the offence committed by him but it is based on fulfilling his part of the contract, namely, transporting the hill tribes to the conference. To invoke the provision of S. 23 of the Indian Contract Act, it must be shown that the agreement is made for illegal purposes or that it is against the public policy. The defendants by virtue of the contract are concerned only with the fact of the hill tribes being brought to the conference by lorries and not as to how and in what manner they are brought. The illegality in the performance of the contract cannot be equated with a contract made, for illegal purposes. This principle has he on clearly and succinctly stated in St. John''s Shipping Corporation v. Joseph Bank Ltd. (1956) 3 A.E.R. 683. The facts of the case a re that the plaintiffs conveyed a cargo of wheat under a contract with the defendant from America to England in their ship which was overloaded. The overloading of the ship was an offence. The plaintiffs were charged and a fine was imposed on the plaintiffs in respect of the offence. It was found by overloading that the plaintiffs had earned a freight of � 2295. The defendants who were endorsees of the bill of lading paid a part of the freight for their share but withheld � 2000 of the total freight contracted to be paid by them in view of the over-loading. The defendants contended that the contract was unenforceable by reason of illegality, namely, over-loading. In allowing the claim made by the plaintiffs Delvin J. had observed as follows.-

the overloading of the ship was an infringement of law that was not contemplated by the contract which did not render the contract unenforceable for illegality ; (2) the plaintiffs had to prove that the goods were delivered safely and need not prove that they committed an illegal act namely by overloading in delivering the goods ; and (3) the plaintiffs were not barred from recovering the freight by the fact that the overloading was a crime, as the right to the freight was riot brought into existence by the crime.

It is therefore very clear that the right to claim the hire charges by the plaintiff does not arise from the illegal performance of the contract but arises in a different form the viz., transporting persons by a lorry which had no permit fulfilment of the contract itself that the hill tribes are to be transported for the conference.

The finding of the learned Subordinate Judge that the claim is illegal is not correct has therefore to be set aside. It is necessary that the Court must go into the question whether in fact the lorry MDN 3135 was used for transporting bill tribes and if so what was the amount the plaintiff will be entitled to as hire charges. Though the plaintiff had not produced the trip sheet, it is possible that he may let in any other evidence to substantiate his case. The finding relating to item No. 1 namely the claim of hire charges for lorry No. MDN 3135 is set aside and the revision petition is partly allowed. The suit will be remanded to the lower Court for fresh disposal according to law. The parties will be at liberty to adduce fresh evidence. Costs of parties to abide by the result in the lower Court.