JABAR CHAND JAIN Vs. MANGALCHAND CHAMPALAL

JUDGEMENT

(1.) THIS revision petition under Section 115, C.P.C. filed by Jabarchand Jain (defendant in original suit No. 311 of 1972) is directed against the order of the Munsiff, Beawar dated January 27, 1975 whereby he dismissed the application dated January 22, 1975 filed by the petitioner praying to implead M/s Mangalchand Champalal and Co., Beawar as defendant.

(2.) THE facts giving rise to this revision petition are that the plaintiff -non -petitioner, a registered partnership firm, Seth Mangalchand Champalal instituted a suit against the petitioner for an amount of Rs. 2330.70 paisa in the court of Munsiff, Beawar on October 12, 1972. The aforesaid amount consisted of Rs. 1950/ - cash loan advanced to the petitioner on Match 8, 1971 by the non petitioner and the amount of interest, Rs. 373.10 paisa at the rate of Re. 1/ - % from March 8, 1971 to October 12, 1972 and notice expenses; Rs. 7.60 paisa. The defendant contested the suit and raised a number of pleas. His case before the trial court was thai he had business dealings with the firm Mangalchand Champalal and Co, which was an unregistered firm, but nothing remained out -standing against the petitioner on account of these dealings, and he had no dealings with the plaintiff -non -petitioner. The plea regarding non -joinder of necessary party was also raised.

(3.) THE learned Counsel for the petitioner has challenged the correctness of the impugned order. He urged that the trial court failed to appreciate the controversy between the parties and dismissed the application by a cryptic order. The consideration for Ex. 2, as alleged in para No. 2 of the plaint was cash consideration. The plaintiff failed to prove it and' PW1 Shambu Mal, one of the partners, admitted that the suit amount was not paid by the plaintiff to the defendant in cash. In variance of the pleadings he tried to male out a new case and in support of that stated that the consideration for Ex. 2 was an amount outstanding from the petitioner to M/s Mangalchand Champalal and Co., Beawar. In order to meet the new case set up by the plaintiff against the original pleadings the petitioner filed an application dated January 22, 1975 under Order 1, Rule 10 read with Section 151;, CPC, praying that Mangal Chand Champalal and Co., Beawar be ordered to be impleaded as party to the suit, because in its absence it was not possible to effectually and completely adjudicate the questions arising in the suit. The trial court failed to appreciate the real controversy between the parties. It did not address itself to the requirement of Order 1, Rule 10 CPC, which enjoins upon the court to implead any person as party to the litigation whose presence is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. In passing the impugned order the learned Munsiff has committed a material defect of procedure affecting ultimate decision of the case, and as such the order is liable to be set aside.