BHAGVAN GOKUL JI AND CO Vs. BALKU BABAJI

JUDGEMENT

(1.) This is an appeal from a decision of the Sub-ordinate Judge of Thana. At the trial the learned Judge framed the first issue in these terms-- Is the suit bad for misjoinder of causes of action against different persona? and he answered that issue in the affirmative and dismissed the action without considering the merits.

(2.) In dealing with the preliminary issue, one must, of course, assume that the facts stated in the plaint are correct and see whether on that basis the plaintiff has a cause of action.

(3.) Now, the material facts are these - The plaintiffs and respondent No. 2 were partners at the material dates. There were other persons also in the partnership, but that is immaterial. Defendant No, 2 was the managing partner, and on June 2, 1924, he agree 1 on behalf of the firm to sell certain land belonging to the firm to respondent No. 1 and he entered the transaction in the books of the firm as being a contract to sell these lands to respondent No. 1 for Rs. 9,000. The actual agreement for sale made between respondent No. 2 and respondent No. 1 was for a sale of the land at Rs. 5,000, and not Rs. 9,000. In January 1925 there was a dissolution of the firm between the plaintiffs and respondent No. 2 and the other partners. The terms of the dissolution were embodied in a deed and the effect of the dissolution was that the plaintiffs took over the whole of the partnership assets, the accounts were to be taken as correct, and if it was found that any entry in the accounts was wrong, the partner in default was to make good the loss to the plaintiffs. In that state of the facts, on February 2, 1926, this suit was commenced against respondent No. 1 and respondent No. 2; and what the plaintiffs claimed was this. They claimed, first of all, specific performance of the agreement for sale. They stated in their plaint that they did not know what terms respondent No. 2 had actually made for the sale of the land. If the sale-price was Rs. 9,000 then they claimed specific performance against respondent No. 1 and on that basis payment to the plaintiffs of the balance of Rs. 9,000. If, on the other hand, the agreement was for a sale for Rs. 5,000 then they claimed against respondent No. 1 specific performance on that basis and as against respondent No. 2 the balance of Rs. 4,000 under what is really the contract of indemnity against mistakes in the accounts contained in the deed of dissolution.