P T RAMANUJ AN Vs. BHASKARAN

JUDGEMENT

(1.) A short cut may often prove to be a wrong cut and the learned Subordinate Judge, in this case, in attempting a short cut in disposing of an appeal, has clearly made a wrong cut with the result that I am constrained to send the case back to the lower appellate court for a fresh disposal of the appeal on the merits. It is doubtful whether the lower courts should dispose of cases on mere points of law set up as a preliminary bar to the suit, without taking the pains to record findings on the other issues, so that in the second appeal there may be a final disposal of the whole case without driving the parties to a prolongation of the litigation by a remand, in the event of the High Court taking a different view on the question of law.

(2.) THE plaintiff, who is the appellant before me, brought a suit for recovery of certain sums of money due on accounts from the defendant, setting out a contract for sawing of the defendant's timber at certain rates in the plaintiff's mill. THE defendant admitted that his timber was sawn in the plaintiff's mill, but, according to his version, more sums were due to him from the plaintiff and so, be made a counter claim for a larger sum. THE trial court decreed the; suit of the plaintiff and disallowed the counter-claim. It may be mentioned even at this stage that the suit was brought by the plaintiff in his individual capacity. THE cause title and the averments in the body of the plaint as well as the relief sought made it abundantly clear that the plaintiff was not setting up any cause of action on behalf of a firm but was pleading a claim in his own right as an individual. Ext. A 10, the lawyer notice which preceded the suit, also disclosed that the plaintiff was setting up an individual right. THE defendant, in his written statement, not only did not dispute the individual status of the plaintiff but proceeded on the assumption that his agreement was with the plaintiff as an individual and pleaded further that he had to get a large sum from the plaintiff as an individual. THE reply notice sent by the defendant's advocate to the plaintiff's advocate, Ext. All, also is in the same tenor. Thus, as a fact and on the pleadings, the action was brought by one P. Raghavan as an individual and there was no suggestion anywhere in the plaint or in the written statement or in the notices that heralded the action that any claim was being laid on behalf of a firm. Parties went to trial on this basis as the original issues reveal but, however, when pw. 1 was examined and cross-examined, he proved himself to be obviously foolish by giving inconsistent answers on one aspect not germane to the controversy at that time, and probably encouraged by his performance the cross-examiner hopefully ventured questions to him and elicited answers to the effect that the saw-mill was a partnership concern and that the plaintiff was a partner with his brother. pw. 1 when pressed by a self-defeating cross-examination, swore further that the saw-mill belonged to the joint family of which he was a junior member. Of course, he had earlier lent lip service to the case that he was the sole owner of the saw-mill business. Thus, he had given slippery testimony and had supported three versions regarding the ownership of the saw-mill in which the defendant's timber was sawn. Hoping to sustain a new plea on the adventitious vacillating gain derived from these answers, the defendant moved for an amendment of the written statement at that late stage and set up the defence that the suit was not maintainable as the claim made in the plaint was on behalf of an unregistered partnership and S. 69 (2) of the indian Partnership Act operated as a bar to the maintainability of the action.

(3.) THE confusion in the reasoning of the learned subordinate Judge which has led to the wrong conclusion is simple. He mixed up two distinct questions, namely, the plaintiff's right to sue and the altogether different point as to who the plaintiff in fact was. If the claim set up in the plaint was due only to the firm, of which the plaintiff was but a partner, the suit was liable to be dismissed because the plaintiff in his individual capacity had no. cause of action in his favour. THEre, the bar of S. 69 (2)obviously could not arise although the suit may fail for absence of his right to claim the sum. It is very different from saying that the plaintiff is a firm and being an unregistered one could not maintain the action on account of a legal bar although it had a right to sue. In this view, I am constrained to set aside the judgment of the lower appellate court and remand the case for fresh disposal. THE Sub Court shall take back the appeal on file and re-hear it. THE costs of this second appeal will be suffered by both parties. THE court-fee paid will be refunded. . .