HAJI MOHAMMED ISHAQ MD. SK. MOHAMMED & 3 OTHERS versus MOHAMED IQBAL & MOHAMED ALI & ORS.

Citation: [1978] 3 S.C.R. 571 · Decided: 04-04-1978 · Supreme Court of India · Bench: R.S. SARKARIA · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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HAJI MOHAMMED ISHAQ MD. SK. MOHAMMED & 3 OTHERS 
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v. 
MOHAMED IQBAL & MOHAMED ALI & ORS. 
April 4, 1978 
[R. S. SARKARIA, N. L. UNTWALIA AND P. S. KAILASAM, JJ.] 
Privily of Contract-Conduct of Parties-Plaintiffs supplyi11g goods on his 
.own direct-Defendants also accepting the goods and making payments 
as 
well-Whether there is an implied contract and a privy . 
Pleadings-Amendment of Pleadings not permissible if it could completely 
change the original defence-Civil Procedure Code 
Order 
VI Rule 17-
Additional evidence also not permissible in such cases.--Order XL! 
Rul~ 27 
Civil Procedure Code. 
The PlaintifI respondent is a registered Partnership firm carrying on busi-
ness at Nipani. 630 bags of tobacco were despatched by the plaintiff, between 
the 11th and 21st January 1952, to the appellant-defendants who 
were 
old 
-customers of one Sri Abdul Rahim Nabisaheb Bhagwan, who "prevailed upon 
the plaintiff to supply the tobacco to the defendants and also said that he would 
see that the defendants duly paid (Sic) for the same". The consignor in all 
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the Railway Receipts except oner was one Sri G. K. Manavi and in one railway 
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receipt of 129 bags, the consignor was the plaintiff firm. 
The consignees were 
self. The railway receipts were endorsed to defendants' firm. The goods were 
accepted by the defendants. 
On demands being made from time to time for 
payment of the price, the defendants paid Rs. 20,000/- by four 
cheques 
of 
Rs. 5000/- each. Later they gave ten more cheques of Rs. 49000/- out of 
these, five cheques of the amount of Rs. 25,000/- were honoured, but the re.st 
1)f the cheques for Rs. 24,000/- were dishonoured. Small sums were further 
paid ID' the defendants in cash. The balance of the price which remained due 
from them was Rs. 75,477-12-9. Adding interest to the said amount, the total 
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amount came to Rs. 90,102-12-9. Remitting Rs. 102-12-9 the plaintiff filed a 
suit for the recovery of the balance of Rs. 90,000/-. The pleas in the written 
statement were that there was no privity of contract between them 
and 
the 
plaintiff. the orders were placed for the supply of 630 bags of tobacco with 
Sri Abdul Rahim Nabi Saheb Bhagwan who handed over a Bijak and not with 
'the Plaintiff for Rs. 1,21,154-12-9, all the cheques were drawn in the name of 
Rahim and were handed over to him and the payment of the cheques were 
"Stopped on account of the slack season. 
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The Trial Court decreed the suit on its finding that the goods were sold to 
the defendants by the Plaintiff through Rahim who acted as 
the defendants' 
agents, and thus there was a privity of contract established between the plain-
, tiff and the defendants. The defendants took up the matter in appeal to the 
High Court and after three years. they filed applications seeking amendment of 
their written statement and permission of the Appellate Court to adduce addi-
tional evidence under Order 41 Rule 27 Civil 
Procedure 
Code. The 
High 
Court by its orcler dated 10-10-58 allowed the appeal, set aside the judgment 
and remitted back the case to the trial Court to re-try it after giving opportuni-
ties to the plaintiff to adduce further evidence and left the matter of amend-
ment of the written statement and the additional evidence to that Court. In 
appeal to this Court and by a consent order 1nade on the 29th March 
1963, the order of the High Court. was set aside and it was asked to 
dispose of the applications of the defendants for permission to amend 
their 
written statement and to adduce additional evidence and thereafter to decide the 
appeal on the evidence adduced in the trial court. The High Court by 
its 
present judgment under appeal dt. 18-9-1964, declined the 
prayers 
of 
the 
-defendants for amendment of their written statement and adducing additional 
evidence. The High Court did not agree with the finding of the Trial Court 
that Rahim acted as the agent of the defendants but held that the defendants 
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572 
SUPREME COURT REPORTS 
[1978) 3 S.C.R. 
had originally placed their orders for supply of tobacco with Rahim. but a new 
implied contract came into existence by conduct of the parties inasmuch as. 
the goods were actually supplied by the plaintiff on its own account; 
were 
accepted as such by the defendants who became liable to pay the price of the 
goods to them. 
Dismissing the appeals by certificate the Court 
HELD : !. The appellants'

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