SHRIPAL TODARMAL Vs. POHAPSINGH KANCHANSINGH

JUDGEMENT

(1.) THESE second appeals are filed under section 525 of the Gwalior Civil Procedure Code in which questions of fact as well as of law have been raised.

(2.) PLAINTIFF Shripal filed a suit against defendant Pohapsingh alleging that on 5 -12 -1947 the defendant executed a registered agreement of partnership in his favour; that the defendant had obtained a theka (a licence) to purchase and sell Ganja, Bhang and Opium from the Customs Department, Gwalior State. It was in respect of this licence that the plaintiff and defendant entered into a partnership, the share in the business and liability for profit and loss being half and half. A sum of Rs. 3,300 was given to the defendant in this connection. It was agreed between the parties that the plaintiff will keep the accounts and that the defendant will give an application to Customs and Excise Department and get the plaintiff appointed as his agent for the purpose of obtaining and selling the commodities covered by the licence. But the defendant never took any steps to get the plaintiff appointed as an agent and that in consequence he never became a partner in this business. This suit is filed for the recovery of Rs. 3,300 as principal and Rs. 239 as interest at the rate of twelve annas per cent. In all the suit was for the recovery of Rs. 3,539.

(3.) THE fact which is significant in this case is that the main contention of the plaintiff and specially alleged in the plaint was that because one of the important conditions of the agreement, namely, the condition relating to the taking of steps to get him recognised as defendant's agent by the Customs, Department, was not observed by the defendant, the contract was frustrated. But the defendant in his written statement by -passed this allegation altogether. I, however, find that in spite of this, because of Issue No. 3, both the parties have led evidence on the point. I shall first consider whether according to the agreement any steps were taken by the defendant to get the plaintiff recognised by the Customs Department, and later on, I shall consider the effect of the breach of this term.