JUDGMENT
Ravi Nandan Sahay, J.
1. This is an appeal by the plaintiff against the judgment of reversal. The respondents have not appeared. Appellant Sheodhar Prasad Narain Singh brought the suit for recovery of Rs. 5,000/- as damages in the following circumstances.
2. The plaintiffs had secured a permit to ply Bus on Siwan Raghunathpur Road. Permit was granted in joint name of the plaintiff and the defendant. Both the parties had made equal investment. The Bus plied from 1958 to 1966 as per agreement (Ext.-4) entered into between the plaintiff and the defendant. The defendant was to ply the Bus and pay Rs. 100/- per month profit to the plaintiff. The other liability like repairs, etc. was responsibility of the defendants. It was further stipulated that in case of breach of contract, the defendant would be liable to pay Rs. 5,000/- as damages.
3. The defendant stopped plying the Bus from 8.2.1975. It is alleged that in breach of agreement, the defendant started plying another Bus ‘BRF-2675’ and so the plaintiff claimed damages for, the breach of the agreement. The defendant plea was that the Bus was taken in joint name but the Bus was damaged in 1972 and it was sufrendered in 1972. The joint permit was not utilised for plying the Bus. It is alleged that the plaintiff is also running Bus No. BRD-215 from 1975 and is not entitled for damages.
4. The Trial Court held that the deed of agreement was valid and enforceable. It was held that the joint permit remained suspended due to default of the defendant and as such the plaintiff was entitled for damages of Rs. 5,000/-. However, the plaintiff was not entitled to get any interest on the said amount.
5. An appeal was preferred by the defendants against the decree of the Trial Court. The appellate Court held that the agreement was genuine but it was not enforceable since it would defeat the provisions of Section 31(1) and 31(A) and Section 60 of the Motor Vehicles Act and hence the claim could not be decreed. The appellate Court dismissed the suit on the ground that the contract, the breach of which is complained by the plaintiff, was unlawful agreement in terms of Section’ 23 of the Indian Contract Act. The appellate Court examined some of the provisions of the Motor Vehicles Act, 1939 (Sections 31 and 60) and held that the evidence was contrary to the provisions of the Act regarding transfer of permit and Agreement (Ext.-4) was illegal and inoperative and no action for damages could be founded on illegal agreement.
6. No where in the written statement of the defendant raised question of invalidity of the Agreement. The Trial Court, therefore, rightly did not consider the matters which were outside the pleadings of the parties. The Trial Court held that the agreement does not lead any trace of illegality. invalidity or ingenuineness. The respondents in the memorandum of appeal filed before the appellate Court did not question the legality of the agreement with reference to Motor Vehicles Act. The appellate Court, therefore, had no jurisdiction to makes out a third case for the defendants by holding that the Agreement was illegal. Hence, the breach of Agreement is proved. The plaintiff was entitled to succeed and the suit, therefore, was rightly decreed by the learned Additional Subordinate Judge. The judgment of the learned appellate Court is plainty erroneous and cannot be sustained.
7. In the result, this appeal is allowed and the judgment and decree of the appellate Court is set aside and consequently the decree of the Trial Court is restored. There shall be no order as to costs. Let the lower Court record be sent down.