Section 70 of the Indian Contract Act cannot be applied to cases where there is an express contract governing the relationship of the parties.

JUDGMENT :

1. This second appeal arises out of a suit filed by the plaintiffs appellants for accounts of the amount due to them after deducting the expenses in terms of the lease deed dated 22-10-1958. It arises in the following circumstances:

2. The plaintiffs who are the co-owners of a Rice Mill named Sri Gopalakrishna Rice Mill along with certain others gave the Mill on lease under a registered lease deed dated 22-10-1958 to the defendant for a certain period ending by September, 1960, It was agreed at the time when the lease deed was executed that an expenditure of Rs. 1,200 should be borne by the owners, as that amount was to be spent on carrying out certain repairs for the piston rod of the Mill. The defendant was therefore permitted to expend that amount and get the repairs done. It was alleged that the defendant over and above the permitted repairs claims to have carried on certain other repairs and incurred an expenditure of Rs. 4,888 and that this amount the defendant cannot claim because no permission in accordance with the lease deed was taken from the plaintiffs. Denying this claim of the defendant, it was contended that the suit for account be decreed.

3. The defendant contended in his written statement that at the time of the lease it was represented that the Mill requires repairs only in so far as the piston rod was concerned and no ether repairs were necessary. The defendant therefore undertook to spend that amount and recover it subsequently from the owners. The defendant however brought a mechanic who dismantled the Mill on 24-10-1958 in the presence of all the co-owners and gave his opinion that besides the piston rod soma other essential repairs have to be carried on. It was contended that all the co-owners agreed for such repairs and directed the defendant to get them done end that any amount spent will be reimbursed. The defendant further stated that the other co-owners having seven annas share have already made contributions towards the amount which the defendant has spent on carrying out repairs other than to the piston rod and it is only these, the plaintiffs, are denying to reimburse. It was further claimed that the co-owners had directed the defendant to obtain instructions from one Chetlapalli Subba Rao, one of the sharers, and carry out the repairs. Upon these pleadings, the trial Court framed several issues and after recording the evidence adduced by the parties held that the repairs besides the piston rod were effected by the defendant in accordance with the permission granted by the owners and therefore the defendant is entitled to claim reimbursement of that amount. The trial Court consequently passed a preliminary decree for accounts giving a direction to allow the said reimbursement.

4. Dissatisfied with that judgment, the plaintiffs filed an appeal. The defendant filed cross-objections.

5. The learned Subordinate Judge, Hutu, disallowed the appeal and the cross-objections holding that the plaintiffs, consent was not obtained by the defendant for carrying out the repairs to the Mill other than the piston rod. He however directed the reimbursement on the ground that under Section 70 of the Indian Contract Act (hereinafter called the Act) when the plaintiffs are deriving-the benefit of the repairs carried on by the defendant who without it intending them to be gratuitous, they (the plaintiffs) have to reimburse that amount on the principle of quantum meruit. It is this view that is now assailed in this second appeal.

6. Before I consider the principal contention advanced before me by the learned Advocate General, I shall dispose of the contention of the learned Advocate for the respondent that the lower appellate court has erred in holding that plaintiffs did not give their consent to incur the expenditure for carrying out the repairs ??? is claimed by the defendant. I do not however see much substance in this contention. It is true that D. W's. 2 to 5 were not considered by the lower appellat