RAJA RAM Vs. B HASHMATULLAH

JUDGEMENT

(1.) This is a plaintiff's appeal against an order of the Civil Judge of Moradabad ordering the plaintiff to make good the deficiency on the plaint within the time fixed by it.

(2.) The plaintiff's case in the plaint was that Hashmatullah, defendant 1, was originally the sole proprietor of a running concern styled Hashmatullah & Co. In September 1943 Hashmatullah agreed to take in the plaintiff as a financing partner. The plaintiff desired that defendant 2 Kaushalaya Nandan should also be taken as a partner. Hashmatullah was not agreeable to this suggestion. Subsequently, however, it was agreed that Hishmatullah was to be a partner of one half, while the plaintiff and Kaushalaya Nandan were to be partners in the other half in equal shares. This arrangement was recorded in an agreement dated 29th February 1944 which was executed by Hashmatullah and Kaushalaya Nandan only, Kaushalaya Nandan standing as a benamidar for the plaintiff to the extent of a half share. The partnership was for a term of five years. According to the plaintiff the partnership is still running. But as mutual confidence had been destroyed, he sued for dissolution of the partnership and for recovery of the profits due to him.

(3.) As the plaint originally stood, it was mentioned in para. 11 that the plaintiff bad heard that defendant 2 was giving out that the partnership had already been dissolved and that a fresh agreement of partnership had been entered into between Hashmatullah and defendant 2. He had also alleged that this dissolution and a fresh partnership were not binding on him, The Inspector of Stamps reported that as the suit involved cancellation of the fresh agreement to which reference was made in para. 11 of the plaint, the plaintiff was bound to pay an additional court-fee for cancellation of that document as required by Section 7 (IV-A), Court-fees Act, as amended in the United Provinces. Defendant 2 also raised a similar point but gave it up at a subsequent stage, The plaintiff applied for amendment of the plaint. The plaint was amended and all reference to the subsequent alleged fresh agreement between Hashmatullah and Kaushalaya Nanian was deleted from para. 11 of the plaint and a fresh para. 11-A was added to the plaint. In this paragraph the plaintiff stated that even if the partnership was dissolved he was still entitled to the amount that he had invested with interest and profits up to the date of alleged dissolution of the partnership. A relief (d) was also added in para, 17 of the plaint to the effect that even if it be proved that the partnership had been dissolved, the plaintiff was entitled to recover the amount invested by him with interest and profits from whichever defendant was held liable for the same.