JANWATRAJ Vs. JETHMAL

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff Janwatraj in a suit for money. The suit was decreed by the trial court but has been dismissed by the learned Civil Judge, balotra.

(2.) THE plaintiff's case, put briefly, was that there was a partnership firm consisting of himself, the defendant Jethmal and certain other persons, which carried on business in the name and style of Oswal Brothers, The firm did business in the manufacture of pen-holders and required some machinery for that purpose. The plaintiff's case "was that a sum of Rs. 3000/- was given to one Umar Bhai for purchasing the machinery and thereby a loss of Rs. 3000/- had been incurred. This loss was divided between the partners of the firm, and the defendant executed a khata for a sum of Rs. 561/8/- on Sawan (Second) Sudi 4 of Smt. 2004 (equal to 20th August 1947) by which it was agreed that the defendant would pay the aforesaid amount to the plaintiff if the said Umar Bhai refused to pay it. Umar Bhai did not pay anything to the plaintiff, and, consequently the latter tiled the present suit for the sum of Rs. 561/8/- as principal plus Rs. 118/13/- as interest, total Rs. 680/5/- on the 2nd of March, 1951 in the court of Munsiff bhinmal.

(3.) THE defendant admitted the partnership though he denied knowledge of the fact whether the plaintiff had given a sum of Rs. 3000/- to Umar Bhai. He, however, further admitted that he had executed the suit Khata for Rs. 561/8/- in favour of the plaintiff by which he agreed that if the said Umar Bhai did not return the machine, he (Jethmal) would be responsible to pay 561/8/- to the plaintiff. The defendant's case further was that Umar Bhai had returned the machine to the plaintiff, and, therefore, the latter had no cause of action against him. On these pleadings, the trial court framed three issues including the general issue for relief. The first issue was whether Umar Bhai did not pay Rs. 561/8/- to the plaintiff and, therefore, the defendant was responsible to pay that sum to the plaintiff. The second issue was whether no loss had at all occurred to the firm and, therefore, the suit khata was without consideration.