CHHANGANI, J.—This is a plaintiffs second appeal from the judgment and decree of the Senior Civil Judge, Ajmer, dated the 14th November, 1953, affirming the decree of the Second Additional Sub-Judge, First Class, Ajmer, dated the 31st January, 1956. By these decrees the plaintiffs suit for damages amounting to Rs. 1,875/- was dismissed and the defendants counter claim of Rs. 1,000/- was decreed.

2. The material facts leading to this appeal may be briefly stated as follows— On 21st May, 1954, the defendant M/s. Jethanand Wadhumal & Co. Ajmer through one of his Managers Shri Lachman Dass contracted to purchase 500 x 36 lbs. tins of Prabhat Brand Hydrogenated Ground Nut and Til Oil (vegetable Ghee) on some terms and conditions, the material conditions being as follows :—

(a) Quantity & Quality : 500 x 36 lbs. Prabhat Brand Hydrogenated Ground Nut Oil and Til Oil.

(b) Period of delivery : From 1st July, 1954 to 31st July, 1954 on any day at the option of sellers.

(f) Terms of payment : The payment shall be made as soon as the delivery is tendered at the purchasers godown or his nominee godown.

The defendant advanced Rs. 1,000/- to the plaintiff under a cheque in pursuance of the contract. The contract was not implemented. The plaintiff accordingly filed a suit for the recovery of Rs. 1,875/- as damages. His case was that he was always willing and prepared to perform his part of the contract but the defendant failed to take delivery in spite of requests, registered notice and a telegram. According to him the contractual rate being Rs. 32/- per tin and the market rate on or about 31st of July, 1954 at Ajmer being Rs. 26/4/- per tin, the plaintiff suffered damages to the extent of Rs. 2,875/-. Giving credit for Rs. 1,000/- deposited by the defendant in advance, he filed a suit for Rs. 1,375/-.

3. The defendant contested the suit on various grounds. The main plea with which we are concerned in this appeal relates to the illegality of the contract. The defence was that the contract being a "forward contract" was in violation of the Forward Contracts (Regulation) Act of 1952. The defendant also filed a counter claim for Rs. 1000/- paid to the plaintiff in pursuance of the contract. It appears that at the time of arguments on certain preliminary legal issues relating to the illegality of the contract, the defendant did not rely upon the provisions of the Forward Contracts (Regulation) Act of 1952 but took shelter under the provisions of the Vegetable Oils and Oilcakes (Forward Contracts Prohibition) Order, 1944 (hereinafter referred to as the "order".

4. The trial court held that the contract was illegal being in contravention of sec. 8 of the said order. The trial court eventually dismissed the plaintiffs suit and decreed the defendants counter claim for Rs. 1000/-.

5. The plaintiff filed an appeal in the court of District Judge, Ajmer. It was, however, transferred to the court of Senior Civil Judge. At the appellate stage the plaintiff relied upon a notification No. P. & S. C. 1 A)/44 (hereinafter referred to as the notification) excluding certain classes of contract from the provisions of the order. The appellate court held that the appellant was not entitled to the benefit of the exemption given by the notification. The appellate court accordingly upheld the decision of the trial court and dismissed the plaintiffs appeal. The plaintiff has filed the second appeal.

6. Mr. Rastogi contended in the first instance that the notification does apply to the contract in question and the lower courts committed an error in holding that the contract was not within exemption. It will be useful at this stage to briefly refer to the relevant law bearing on the question. The Government of India in the exercise of powers conferred by sub-rule (2) of R. 81 of the Defence of India Rules made an order called "The Vegetable Oils & Oilcakes (Forward Contracts Prohibition) Order, 1944. This order prohibited forward contracts in certain articles. It is not in disput

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