RATAN LAL SHAH Vs. FIRM LALMANDAS GHHADAMMALAL

JUDGEMENT

(1.) Firm Lalmandas Chhadammalal - hereinafter called 'the plaintiffs' - commenced an action against "Mohan Singh Ratan Lal, through its partners Mohan Singh and Ratan Lal", in the Court of the Senior Civil Judge, Nainital, for a decree for Rs. 12,883 and interest thereon for value of goods supplied. Ratan Lal denied liability for payment of the amount claimed. Mohan Singh by a separate written statement admitted that goods were supplied by the plaintiffs to the firm, but submitted that he was liable only for one-fifth of the amount claimed. The Trial Judge decreed the claim of the plaintiff in its entirety against "Mohan Singh and Ratan Lal and the firm known as Mohan Singh Ratan Lal".

(2.) Against the decree, Ratan Lal alone appealed to the High Court of Allahabad. Mohan Singh was impleaded as the second respondent in the appeal. The notice of appeal sent to Mohan Singh was returned unserved and an application made by counsel for the appellant to serve Mohan Singh "in the ordinary course as well as by registered post" was not disposed of by the Court. On July 9, 1963 Ratan Lal applied that it was "detected that there had been no service of the notice the appeal upon Mohan Singh and it was essential for the ends of justice that notice of appeal may be served upon Mohan Singh". The Court by order dated July 10, 1963, rejected the application and proceeded to hear the appeal. The Court was of the view that since there was a joint decree against Ratan Lal and Mohan Singh in a suit founded on a joint cause of action and the decree against Mohan Singh had become final, Ratan Lal could not claim to be heard on his appeal. The High Court observed:

(3.) In our view the judgment of the High Court cannot be sustained. The appeal could not be dismissed on the ground that Mohan Singh was not served with the notice of appeal, nor could the appeal be dismissed on the ground that there was a possibility of two conflicting decrees. Order 41, Rule 4 of the Code of Civil Procedure provides: