Moulvi Hamid Hasan and Nirsu Narain Singh vs Shahzad Khan and Another

Das, J.—These two revision cases arise out of -a Small Cause Court suit instituted by the opposite party against the petitioner in each of these cases and against another person against whom no decree has been passed by the Court of Small Causes. It appears that the opposite party hired out certain articles for the purpose of the Chatri Sabha which was held in Patna on the 27th August and 9th December 1916. The question for my determination is, who is liable on the contrast.

The plaintiff in his plaint specifically states that he hired out the articles on the personal liability of Moulvi Hamid Hasan and defendant No. 2, who has been dismissed from the action. He does not state that there was any contract between him and defendant No. 3 at all and as I read the judgment of the learned Judge of the Small Cause Court, he does not find that there was any contract between defendant No. 3 and the plaintiff. It'' is, in my opinion, well settled that no one is liable on a contract except a party thereto. It is not the plaintiff''s case that defendant No. 3 was a party to the contract. It is not found by the Court below that defendant No. 3 was a party to the contract.

It is, however, urged on behalf of Moulvi Hamid Hasan that he contracted merely as an agent and, therefore, no decree could be passed against him and he relies upon Section 230 of the Indian Contract Act. That section, in accordance with the English rule, lays down that an agent cannot personally enforce a contract entered into by him on behalf of his principal nor is he personally bound by such contract. Now, in this case as I read the judgment, there is no finding that Moulvi Hamid Hasan entered into the contract as agent. The finding upon which the learned Vakil appearing on behalf of Moulvi Hamid Hasan relies is this: "I am satisfied that defendant No. 1 took the articles, a list of which was prepared at the time, on hire for the Sabha. He entered into the contract and disclosed the purpose for which he took, and the person to whom he sent, the articles and paid Rs. 140." In my opinion it does not amount to a finding that defendant No. 1 acted as an agent in the transaction. I hold that upon the plaint itself and upon the finding of the learned Judge of the Small Cause Court he was wrong in passing a decree against defendant No. 3. Civil Revision Case No. 124 of 1919 must, therefore, be allowed with costs, which I assess at two gold mohurs, to be paid by the plaintiff. I further hold that Moulvi Hamid Hasan is liable on the contract into which he entered with Shahzad Khan.

Civil Revision Case No. 107 of 1919 must accordingly be refused with costs, which I assess at two gold mohurs.