KARUMURI BRAHMANNA SASTRULU Vs. JALDU VENKATASUBHA ROW

JUDGEMENT

(1.) We are bound to accept the finding that as a matter of fact the partnership was dissolved on the 31st May 1908. As regards the Plaintiff s claim in this appeal for Rs. 650 decreed to him by the Court of first instance, but refused by the Subordinate Judge in A. 67 of 1911, that sum was due to him under one of the terms of the dissolution, and though the plaintiff did not admit in his plaint that the partnership was dissolved, the 1st defendant alleged the dissolution and the liability of the firm to pay the plaintiff Rs. 650 and on this state of the pleadings, the District Munsif gave the Plaintiff a decree of Rs. 650 against the 1st defendant. We think the Subordinate Judge had not sufficient ground for reversing this decree. Though the sum was not due to the plaintiff, on his own case, it was due to him on the 1st defendant s case. The plaintiff s case was that what was due to him from the partnership had yet to be ascertained, the defendant s case was that that sum had already been ascertained, and both Courts found in favor of the 1st defendant s case. In the circumstances a decree for the amount found due as alleged by the 1st defendant himself is justified by the pleadings though it was not claimed in the plaint compare Ahmad Wait Khan v. Shamshul Jahan Begam (1906) I.L.R. 28 A. 482 (P.C.) and the fact that the plaintiff has persisted in denying the 1st defendant s case and has refused his offer of payment is not a sufficient ground for refusing him the decree for the amount admittedly due. The plaintiff has been punished by being made to pay all the costs of the 1st defendant in the Court of First instance, and of that he does not complain.

(2.) We allow the appeal and modify the decree by restoring the directions to the 1st defendant to pay to the plaintiff the sum of Rs. 650.

(3.) The Appellant will pay the 1st Respondent half his costs of the appeal in this Court.