BHOLABHAI BHOGILAL Vs. RATTAN CHAND

JUDGEMENT

(1.) THE facts giving rise to the present appeal under Clause 10 of the Letters Patent may be briefly recapitulated. Firm Chuni Lal Dewan Chand carried on cloth business in Sialkot before the partition of India in 1947, Under a scheme of cloth control which had been enforced by the Punjab Government certain cloth dealers were appointed as group leaders for the purposes of distribution of cloth to other dealers who were grouped together. Firm Chuni Lal Dewan Chand is said to have been nominated as a group leader and in that capacity Messrs Bholabhai--Bhogilal, cloth merchants, Ahmedabad, who are now the appellants, were appointed as purchasing agents for the purpose of buying cloth and sending the same to the Sialkot firm. It is alleged that the sialkot firm deposited a sum of Rs. 30,000/- as security with the Ahmedabad firm and that out of the payments made for the cloth supplied on accounts a sum of Rs. 1,564/- was due to the Sial-kot firm by the Ahmedabad firm, apart from the amount which had been deposited by way of security. On the 31st March, 1952, Rattan Chand who is admittedly one of the partners of the firm, Chuni Lal Dewan Chand instituted an application under Section 13 of the displaced Persons (Debts Adjustment) Act, 1951 (Act No. 70 of 1951), in the court of the Senior Subordinate Judge, Jullundur, who was acting as the Tribunal under that Act. In this application he implead-ed as respondents firm Bholabhai bhogilal of Ahmedabad and Chuni Lal and Dewan Chand who were stated to be the partners Of the firm, Chuni Lal Dewan Chand. The application was filed by Rattan Chand describing himself as one of the proprietors of Chuni Lal Dewan Chand and was signed and. verified by Rattan chand alone, in this application he claimed that a sum of Rs. 31,564/8/0 plus Rs. 243/15/- was due from the Ahmedabad firm and that a decree be passed against the Ahmedabad firm together with interest at the rate of 6 per cent.

(2.) THE Ahmedabad firm contested the ap-pli ation made by Ratan Chand on several grounds. Another ground was sought to be raised at a fairly late stage of the case by means of amendment of the written statement, which was allowed on 9th June, 1953 by the Tribunal. The material plea that was introduced was to the effect that Piare Lal was also a partner of the firm Chuni Lal Dewan Chand and as he had not been impleded the application was not maintainable. Four preliminary issues were framed in the case which are given below :

(3.) RATTAN Chand filed an appeal to this Court, which was heard and decided by bishan Narain J. , by his judgment dated the 20th September, 1954. The learned judge came to the conclusion that Rattan Chand was not claiming any rights in his individual capacity but was ashing for a decree in favour of the firm (Chuni Lal dewan Chand) and the application being in substance by one of the partners of the firm for a decree in favour of the firm, Order 30 of the Code of Civil Procedure was applicable, and the application under Section 13 filed by Rattan Chand was competent. He further held that even if that be not so, it was open to one of the partners who was a displaced creditor as defined in the Act to make an application under Section 13 and his application did not become incompetent simply because one of the alleged partners had not been implea-ded. The learned Judge examined the question whether Piare Lal was a partner of firm Chuni Lal Dewan Chand. He came to the conclusion that it was not proved on the record that Piare Lal was a partner of the firm Chuni Lal Dewan Chand. In view of all this the appeal was accepted and the order of the Tribunal was set aside. It is against that decision that the present appeal is directed.