JAWARI MAL Vs. MANGI LAL

JUDGEMENT

(1.) THIS second appeal by the plaintiffs Jawarimal and Pukraj is directed against the judgment and decree of the learned District Judge, Merta City, dated the nth November, 1954, in a suit for damages for breach of a contract.

(2.) THE appeal, in my opinion, must stand concluded by a preliminary objection as to its abatement, and, therefore only a few facts having a bearing on this question require to be stated. THE plaintiffs Jawarimal and Pukraj were both brothers, being sons of one Shivlal. THEy brought the present suit as owners and managers of a joint Hindu family which carried on business in the name of Jawarimal Pukhraj at Nagour. This allegation is contained in paragraph one of the plaint. THE suit was decreed by the trial court but dismissed by the lower appellate court. THEreupon the present appeal was filed by both Jawarimal and Pukhraj. Again they described themselves as owners and managers of the joint Hindu family firm Jawarimal Pukhraj while filing the appeal. Jawarimal admittedly died some time in November, 1958. It is also admitted that apart from the other appellant Pukhraj, Jawarimal was survived by his son Faquir Chand, his widow Mst. Chunnibai and two married daughters Msts. Mina and Basanti. As all these legal representatives other than Pukhraj had not been brought on the record in place of the deceased Jawarimal within the time prescribed by law, an application was moved on behalf of the defendants respondents that appeal be dismissed as having abated. This application is dated the 4th April, 1960. To this a reply was filed on behalf of the plaintiffs appellants on the 6th April, 1960, in which it was admitted that Jawarimal had died about a year and a half ago leaving behind the aforesaid heirs, but it was contended that it was not necessary to bring on record the deceased's widow and his son and the daughters because the present suit had been brought by Jawarimal and Pukhraj in their capacity as managers and owners of a joint Hindu family business, and the appeal had also been brought by both of them as owners and managers of the said business and that as the surviving appellant Pukhraj adequately and affectively represented the appellants' firm, no question of abatement could arise, and therefore, it was prayed that the objection as to abatement be dismissed. It is in these circumstances that the question arises for determination as to whether the present appeal has abated at all, or in its entirety and should, therefore, be dismissed as such.