SHRIKRISHAN MOOLCHAND Vs. DEOKINANDAN SARDHARAM

JUDGEMENT

(1.) This appeal by the plaintiff 1 is directed against the affirming decree of the lower appeal Court by which his claim for recovery of a loan, together with interest, amounting in all to Rs. 1,500/- from the defendants 1 and 2 was dismissed on the ground that appeal was not maintainable for non-joinder of necessary parties.

(2.) There was an unregistered partnership of Shrikishan (plaintiff 1), Gopikishan (father of plaintiffs 2 and 3) and Bawalram called Bawalram Moolchand which, it was claimed, advanced, on 19th September, 1952, a loan of Rs. 1,200/- to the defendants 1 and 2. On 17th September 1955, Shrikishan alone filed the suit in his own name impleading Bawalram and the heirs of Gopikishan (who was already dead) as defendants because they did not agree to join as co-plaintiffs. However, during the pendency of the suit, the heirs of Gopikishan were, at their own request, transposed as plaintiffs 2 and 3.

(3.) Upon contest, the Court of first instance dismissed the claim on merits. Thereupon, Shrikishan (plaintiff 1) alone filed the first appeal without impleading the heirs of Gopikishan as parties. During the pendency of that appeal, Shrikishan filed three applications. In the first application dated 22nd March 1958, he averred that he omitted to implead the heirs of Gopikishan as parties to the appeal inadvertently and on account of a bona fide mistake and prayed that either the appeal be heard on merits and a decree be passed under Order 41, Rule 4, Civil Procedure Code, in favour of all the original plaintiffs or leave be granted under Order 41, Rule 20 of the Code to implead the plaintiffs 2 and 3 as parties to the appeal. By the second application dated 25th March, 1958, he sought leave under Order 6, Rule 17, of the Code to amend the plaint with a view to showing that he brought the suit on behalf of the dissolved firm Bawalram Moolchand. By the third application dated 1st September, 1958, he sought leave to urge a new ground, namely, that the heirs of Gopikishan, not being partners of the firm, were not necessary parties. The lower appeal Court dismissed these three applications and also, as already indicated, dismissed the appeal.