DAMODARDAS KHIVRAJ Vs. GOURISHANKAR HARBAKAS

JUDGEMENT

(1.) THIS is a second appeal by the second defendant to a suit for the recovery of its. 3959 alleged to be due from him along with the other defendants to the suit, on account of the price of certain ghee sold to them. The plaintiff's case is briefly as follows : The shop of Damodardas Narayandas of Khamgaon was a joint Hindu family firm owned by its members, defendants Nos. 2 to 5. The defendant No. 5 purchased 50 tins of ghee from the plaintiff on 9-2-1949 at the rate of Rs. 4/9/0 per seer. The net weight of the ghee was 706 seers and it was worth Rs. 4134/3/0. In addition to this sum, other charges amounting to Rs. 84/12/0 were also payable by the defendants to him. The total amount which was due from the defendants to the plaintiff was, according to the plaintiff, Rs. 4218-15-0. Out of this amount, Rs. 218-15-0 were said to have been paid in cash by Narayandas on the date of purchase and a hundi for Rs. 500 was also given by him on that date. This hundi is said to have been dishonoured within a week. The defendant No. 5 is said to have repaid Rs. 125 in cash within a few days and returned 6 tins of ghee of the value of Rs. 500. The total amount credited by the plaintiff to the defendants comes to Rs. 1343-15-0. Deducting this from the amount of Rs. 4218-15-0, the plaintiff claims that he is entitled to Rs. 2875. In addition to this he claims Rs. 1075 by way of interest at 1 per cent per month as per agreement, or in the alternative, by way of damages. In this way, he laid a claim for Rs. 3959 in the trial Court.

(2.) THE defendant No. 5 admitted the transaction in question, but contended that the shop of Damodardas Narayandas was only a partnership firm owned by himself and his brother defendant No. 2 and not a joint family firm. He further contended that the purchase by him on 9-2-1949 was on his own account and not on behalf of the partnership. He admitted that Rs. 2875 were due from him and denied the claim for interest as also for damages. The defendants Nos. 3 and 4 denied all connection either with the shop or with the transaction. The defendant No. 2 who is the appellant before me also contended that the shop of Damodardas Narayandas was a partnership firm and added that this firm had stopped its business by the Diwali of 1949 and that the transaction in question was not in any case a partnership transaction but was a personal transaction of Narayandas. He thus denied his liability or the liability of the firm of Damodardas Narayandas. The defendant No. 1 to the suit was the firm of Damodardas Narayandas. A summons was issued to the firm but it does not appear that the summons was served on the firm at any time. This would appear from the order-sheet dated 23-7-1952 which says, "defendant No. 1 is absent. It is a firm whose partners are served". On 26-9-1952 the Court directed the plaintiff to state clearly as to who represented the shop and to amend the plaint accordingly. The plaintiff thereupon made an application on 27-12-1952 in which he sought to add the following after paragraph 2 of the plaint:

(3.) THE trial Court decreed the suit against the defendant No. 5 alone and absolved the other defendants from liability. The plaintiff thereupon preferred an appeal before the District Judge, Akola. The District Judge, by his order dated 3-2-1955 allowed the appeal, set aside the decree of the trial Court and remitted the suit to the trial Court for a fresh decision on merits in the light of certain observations made by him. The matter then went back before the trial Court where certain applications for amendment of the pleadings were made by the parties which were partially allowed and the case was set down for evidence. In the meanwhile, a revision application preferred by the present appellant to the High Court at Nagpur challenging the order of remand was allowed and the order of the District Judge, remitting the case to the trial Court, was set aside. The High Court directed the District Judge to readmit the appeal and decide it himself on merits. It may be mentioned that the ground on which the District Judge had set aside the decree of the trial Court was that it did not admit on record a certain document which the plaintiff sought to file at a late stage. When the plaintiff preferred an appeal before the District Judge, he had made an application under Order 41, Rule 27 of the Code of Civil Procedure for the admission of his document. The High Court, by its order dated 11-11-1955, directed the District Judge to decide that application himself. After the High Court set aside the order of the District Judge, the matter went back to him and he transferred the appeal to the Extra Additional District Judge, Akola. The latter rejected the application of the plaintiff under Order 41, Rule 27, but allowed the appeal partially by holding that tho present appellant as well as the firm of Damodar-das Narayandas were liable for the plaintiff's claim.