KANHAIYALAL Vs. LAXMINARAYAN

JUDGEMENT

(1.) THIS is an appeal directed against the decision of the first appellate court modifying the trial Court's decree in some respects, but still maintaining its decision that, on the one hand, the plaintiff was entitled to recover the price of 52 bales of ginned cotton (Rui) sold by him to the defendants and, on the other, they were entitled to set off the amounts due to them as damages for non -delivery of 2 other quantities of cotton, which the plaintiff had agreed to deliver on particular dates. The questions for decision are, firstly, the effect of the belated substitution by the plaintiffs -appellants of one out of the 5 legal representatives of one of the deceased respondents. Secondly, whether in a case like this where the defendants' claim is for unascertained sums of money, a set off should at all have been allowed; and thirdly, whether, the facts relating to the two breaches pleaded by the defendants -respondents, have been proved.

(2.) POINT No. 1. This can be disposed of very briefly. Chhotmal, one of the four respondents, died on 21 -7 -1955. By an application dated 20 -8 -1955, the appellants substituted the four sons of the deceased respondent. In time the new respondents petitioned that their mother was still alive and had not been substituted. Accordingly, a fresh petition was made, but after the 90 days period, for her being impleaded as a respondent. Without going into any lengthy discussion, I note that this case is on all fours with the case reported in A.I.R. 1945 Nag 153, which already has been followed in another case in this Court. Applying the same principles I find nothing wrong in the belated impleading of one of the legal representatives, while the appellant had in time brought on record, all the legal representatives ascertained after diligent inquiry.

(3.) THE plaintiff's claim has been allowed to his satisfaction. In regard to the transaction No. (a) the object in second appeal is only that the lower courts have allowed the defendants Re. 1 more per maund i.e. Rs. 31 in all on this account, and the set off, if allowed, should be for that much less. This is a trifling amount; after all the ascertainment of the price on a particular date is a finding of fact, so nothing more need be said about this detail in regard to set off arising out of (a).