JUDGMENT

1. These are two Appeals Nos. 143 and 144 of 1936 against an appellate decision of the District Judge of Dnao in a suit brought by Pt. Dukhharan Nath Zutshi who is the appellant in these two appeals. Defendant 1, that is to say the respondent in Suit No. 144, is Mr. Lancaster, the proprietor of the Oriental Motor Car Company, while defendant 2, who is respondent in Appeal No. 143 is the Commercial Credit Corporation Ltd., through Messrs. Govan Bros. Ltd., which Corporation carries on a hire purchase business.

2. The case in short is that the plaintiff needed a car to run as a taxi, though the purpose is immaterial in this case. The employees of the Cawnpore branch of Mr. Lancaster's business early in July tried to sell him a car and showed him an eight horse power Ford Car but at that time gave him no trial run. The plaintiff made it clear that he had not got the funds to buy a car. On 7th July 1933 Janti Prasad and Mr. Kapoor, employees of the Oriental Motor Car Co., came to Unao with that Ford Car and gave the plaintiff a trial run. There was some noise which the plaintiff did not like but he was told by these servants of Mr. Lancaster that the noise would disappear after the car had been run in a little and if it did not disappear the car would be taken back. They had also brought hire purchase forms thus acting as agents of defendant 2 and the plaintiff executed an agreement for hire purchase and he paid Rs. 825-15-0 by cheque and he subsequently paid Rs. 570 in three instalments. On 26th September 1933 the car first broke down. It had been let out and it had to go on a muddy patri because the pukka part of the road was occupied by bullock carts that would not shift. When the driver tried to restart the car there was a noise and though the engine turned, the back wheels did not turn. It was handed over to defendant 1 for repairs and it was under repair till 16th November 1933. Again on 21st November 1933 the car broke down on a pukka road and it was once more handed in for repairs. It did not come back till 21st January 1934, and on that very date it broke down on the way to delivery. The plaintiff alleges that the car had a defect which was known to the defendants because it made that noise, that the servants of the defendants made false representations when they said that the noise would wear off and if it did not the car would be taken back and so the plaintiff claims damages composed of the original payment which he however puts at Rupees 1194-8-0 paid at once, Rs. 570 in instalments and Rs. 129-5-0 interest at 12 per cent. from November 1933 to May 1934.

3. Defendant 1 stated that there was no noise, that there was no defect, no misrepresentation, no warranty, that what happened to the car was due to bad driving and there was no privity of contract between him and the plaintiff. Defendant 2 denied misrepresentation, the existence of any mechanical defect and in any case the misrepresentation, if any, was by defendant 1 and defendant 2 under the terms of the hire purchase agreement is not liable. We have therefore to consider, in so far as we are entitled to do so in second appeal, whether there was a mechanical defect known to either or both of the defendants, whether there was misrepresentation by one or other of them and against whom the appellant is entitled to relief, if any.

4. The learned Counsel for the respondents alleges that the finding of the lower Appellate Court that no mechanical defect was proved is a finding of fact which cannot be reconsidered in second appeal. There is a letter on the record to which the learned Judge has attached a certain meaning which according to the appellant is entirely wrong and the learned Counsel for respondent 2 urges that this document is not one of title and the interpretation of it is not a point of law and therefore it cannot be considered in second appeal. For this he relies specially on Wali Mohammad v. Mohammad Bakhsh (1930) 17 AIR PC 91. The document there c