GANESHMAL Vs. BHOORALAL

JUDGEMENT

(1.) THIS is a plaintiff's second appeal. It appears that certain grain transactions were carried on by Ganeshmal on the one hand and Bhooralal on the other in partnership with each other some time in September, 1943. These, however, led to differences between them with the result that the plaintiff Ganeshmal instituted a suit for rendition of accounts against Bhooralal and his son Pukhraj, and in the alternative prayed for a decree for Rs. 135/- on the ground that this amount was due to him on account of his share of profits. The defendant Bhooralal did not file any 'jababdava' at all and instead presented an application praying that Kishanlal, Jugraj and Bhanwarlal were necessary parties to the suit which, it was urged, was accordingly bad for non-joinder of these persons. Whether these persons were necessary parties or not and for what reason was an extremely important matter in the case but was not put in issue, and accordingly, it cannot be said that it was at all tried. The learned Munsif ordered on 18th of April, 1947 that the plaintiff shall amend the plaint by adding Jugraj and Kishanlal as parties within 14 days. The plaintiff did not carry out this order and instead, on 28th of July, 1947, filed a fresh plaint making drastic alterations and changing even the cause of action. The Munsif refused to register the suit on the ground that it was altogether a different suit and in the result dismissed the previous suit as the order directing the plaintiff to amend the plaint by adding the necessary parties had not been carried out. An appeal against this order was filed in the court of Judicial Superintendent, Sojat, as he then was, on 1st of July, 1948, but was dismissed for default on 15th of September 1948. An application for restoration was filed on 21st of October 1948 and ultimately the appeal was restored to a hearing on 24th of May 1950. After hearing arguments, the learned District Judge found that the dismissal of the suit was justified as from the documents produced by the plaintiff himself, Kishanlal and Jugraj appeared to be partners and, therefore, necessary parties, and the suit could not proceed in their absence.

(2.) IN this appeal, the learned counsel for the plaintiff appellant has urged that no procedure worth the name was followed in this case, and that the suit has been dismissed on application presented by the defendant without any issue having been framed and without a trial of those issues. This contention, it is conceded by the learned counsel for the respondent, is well founded. Although the suit was instituted as far back as 1946, for reasons best known to the parties or the courts which have dealt with it, the defendants were allowed to have their own way and it was not considered necessary before proceeding to deal with the question on which the suit has been disposed of that the defendant should be called upon to file his 'jababdava' in answer to the allegations contained in the plaint. He simply filed an application that he carried on business in the name of Bhooralal Kishanlal and, therefore, Kishanlal may be added as a defendant. As regards Jugraj, he stated that the grain had been purchased by him from both Ganeshmal and Jugraj and both of them had sent it to him for sale. Accordingly Jugraj was also a necessary party. The plaintiff had pleaded a partnership with the defendant and while the latter affirmed the existence of that partnership, he also alleged that it consisted not merely of himself and the plaintiff but also of several other persons. This fact should have been put forward in the 'jababdava' and not merely by means of an application. The result is, as stated above, no procedure worth the name has been followed in this case and the matter in dispute between the parties regarding the actual existence of partnership between various persons named above, has not been tried at all. The pity of it is that even the learned District Judge, who was expected to be cognisant of this grave omission in the court below, did not concentrate on this aspect of the case.