NEMI CHAND Vs. HIRA CHAND

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 15.9.1975 delivered by Additional District Judge, Ajmer in Civil Original Suit No. 48/ 1971 wherein the suit filed by Hira Chand Proprietor & Karta of Joint Hindu Family Firm Hira Chand Raj Kumar Gotewala was decreed for the recovery of Rs. 14,500/- plus penden te lite and future interest at the rate of 6% per annum against the appellants defendants No. 1 & 2 and also the defendant No. 3 i.e. respondent No. 2 Ram Pal. During the pendency of the appeal, respondent Hira Chand expired and his legal heirs as shown in the cause title have been brought on record. It is not necessary to narrate the pleadings of the parties for the decision of this appeal be cause the appellants have challenged the finding of only Issue No. 5, which is to the following effect: 5. Whether the plaintiff is not entitled to bring this suit as alleged in para 12 of written statement of defendant No. 2?

(2.) The said Issue No. 5 was framed on the basis of the averments made in the cause title of the plaint showing the status of the plaintiff Hira Chand as Hira Chand s/o Seth Mathuralal Jain, Prop, and Karta of the Joint Hindu Family business carried on in the name and style of 'Hira Chand Raj Kumar' Gotewala, at Naya Bazar, Ajmer. The appellant-defendant Nemi Chand specifically denied in Para No. 12 of the additional pleas of this written statement the status of Hira Chand as the Proprietor and Karta of the Joint Hindu Family business carried in the name and style of Hira Chand Raj Kumar Gotewala, Naya Bazar, Ajmer and clearly averred that Hira Chand is not entitled to bring any civil action against him.

(3.) The learned trial Court recorded the statement of plaintiff Hira Chand P.W.1, who was again examined in rebuttal of the said Issue No. 5 on 8.5.1975. Nemi Chand defendant also appeared as witness. The plaintiff Hira Chand also exhibited documentary evidence Ex. 1 to Ex. 86. The learned trial Judge on consideration of the oral and documentary evidence and after hearing the arguments decided all the issues inclulding the Issue No. 5 in favour of the plaintiff. We are only concerned with the correctness of the finding on Issue No. 5 for the decision of the appeal. The learned trial Judge observed that the evidence given by plaintiff Hira Chand is inconsistent because for the first time he stated that this father Mathura Lal is the Manager of the HUF and second time he said that he was the owner of the Firm Hira-Chand Raj Kumar Gotewala. The learned Judge also observed that the plaintiff introduced himself as owner deliberately realising that the suit was not in fact institued by the Manager of Hindu undivided family. It was also malafide. However, it was held that Hira Chand was actively conducting the business of Hindu Undivided family consisting of himself, his father and other members, which is also borne out from Ex. 84 to 86. The authority to manage the business can be inferred from the facts and circumstances of the case and such authority need not be given in express terms. The learned Judge further observed that Hira Chand plaintiff in this case was acting as implied Manager to conduct business and to bind by his action other membes then he could initiate legal action for the protection of the interest of Joint Hindu Family business by filing the suit to recover the dues. The learned trial Judge keeping in mind the principle that to advance the cause of justice the substance of the matter should be adhered to over the form to avoid hyper-technical approach, came to the conclusion that plaintiff Hira Chand had the locus standi to file the suit and decided Issue No. 5 accordingly. Since all the issues were decided against the defendants, the suit stood decreed as stated above.