Judgment

DWIVEDI, J.: - The appellants instituted a suit against the respondents for recovery of Rs. 34,000/- as damages. The suit was grounded on tortious liability. The trial court decreed the suit, but the High Court of Allahabad reversed the decree and dismissed the suit. The present appeal is directed against the decree of the High Court.

2. The appellants are the partners of the firm Shiam Lal Radhey Lal. The first respondent is the Agra Mahapalika, the second respondent is the Health Officer of the Mahapalika. The Military Dairy Farm at Agra was in possession of a certain quantity of wheat flour. It was declared unfit for human consumption. It was purchased for the firm. According to the appellants, it was fit for being used as lehi, manure and ratab for consumption by animals. Broadly stated, their case was that the respondents initially stopped them from selling the flour and subsequently imposed restrictions on its sale, "which effectively prevented the sale." Loss was caused to them on account of delay in sale due to their intervention.

3. The respondents denied their liability. They said that their action was bona fide and in the interest of public safety and health and in pursuance of the directions given by the magistrate. According to them, the appellants took no steps to prevent the sale of flour for human consumption.

4. The two central issues are: (1) whether the respondents are liable to pay damages in the circumstances of the case; and (2) if so, what is the quantum of their liability. On the first issue the High Court has held that the respondents are not liable at all. On the second issue the High Court has given no finding.

5. The appellants started selling the flour from March 20, 1945. On May 17, 1945, the second respondent reported to the Administrator of the Nagarpalika that the flour was in a decomposed and deteriorated condition and was unfit for human consumption. He admitted in the report that the firm of the appellants "has set up a placard to say it (flour) is condemned atta and unfit for consumption." The Nagarpalika reported the matter to the District Magistrate. Agra. On July 26, 1945 an order was issued under S. 144 Cr.P.C. prohibiting the appellants from selling the flour for one month. This order was extended till September 20, 1945 by another order, dated September 18, 1945. The appellants were prosecuted for offences under Ss. 4 and 14 of the U. P. Prevention of Adulteration Act and S. 273 I.P.C. The flour was seized by the order of the magistrate and kept in the custody of the appellants until further orders. The magistrate acquitted the appellants on September 5, 1945. In the operative portion of the judgment he gave this direction. "Since this Atta is noxious to public health and it is not possible to prevent its reaching consumers (even though the accused had best intention) without effective regulation, I order that the entire Atta still be taken possession of by the Municipal medical officer of Health who will kindly regulate its disposal in consonance with considerations to the owner as is necessary to prevent its being used as food. The Atta has already been kept frozen for too long a time and I would request the medical officer to kindly expedite action in this. Copy of this order may be sent to medical officer of Health immediately."

6. On September 17, 1945 the second respondent issued an order under S. 244 of the U. P. Municipalities Act. The order was with respect to 2048 bags of Atta seized by the magistrate in connection with the criminal case. The order permitted the appellants to dispose of the flour subject to the following conditions: (1) they should engage a salesman approved by the second respondent to sell the Atta; (2) they should keep a separate stock book and sales-book in respect of the Atta. In the sales book the names and addresses of all buyers should be mentioned. There should be a column for the signature of the buyers; (3) the Atta should be sold only for being