MATHURA NATH CHOUDHURY Vs. SREEJUKTA BAGESWARI RANI

JUDGEMENT

(1.) The facts which have given rise to the suit and this appeal are that the plaintiff was the owner of an elephant by the name of Lal Bahadur. Defendants 1 and 3 carried on the business of catching wild elephants and the plaintiff's case is that defendant 1 and his servant defendant 2 hired from her the elephant for the purpose of employing him in their business. There was an agreement between the plaintiff and defendants 1 and 2 of which the materia portion was to the following effect: I remain liable to pay to you Rs. 5,000 as the price of the elephant and Bs. ?00 as the balance of the hire (money); if during the period the elephant remains in my possession, it be broken in health or becomes unfit for work or dies and I cannot return it to you at the stipulated time.

(2.) Under this agreement defendant 1 took possession of the elephant and used it for shikar or catching wild elephants in the Garo Hills up till the 29 December 1923 when it was found that the animal was ill and it died soon after. The plaintiff thereupon on the basis of the agreement brought the present suit for recovery of Rs. 5,000 from defendants 1 and 2. Defendant 1 in his written statement alleged that defendant 3 (the appellant before us) was a partner in the business and should have been made a party and that the suit should not proceed in his absence. Thereafter the plaintiff made an application in which she applied to make defendant 3 a party defendant and said that she was making the application on the objection taken by defendant 1 and as defendant 3 was an undisclosed partner in the business. The Sub-Judge before whom the application was made passed the following order: The plaintiff makes an application to add Muthuranath Choudhury as a party. It occurs thus : He is a necessary party. Add him as a party. Issue summons.

(3.) On the body of the plaint the name of Mathuranath Choudhury, the appellant, was inserted at the heading under the names of the other defendants but no further alteration was made in the plaint either in the body of the plaint or in the prayers alleging facts against- defendant 3 and seeking particular relief against him. The order adding defendant 3 as a party was passed after the settlement of issues in the case. The plaintiff, therefore, applied again to frame fresh issues with reference to defendant 3 and the following issues were added: (a) Was defendant 2 an agent of defendant 3 Mathuranath Ohoudhury and was he authorized by defendant 3 to enter into the agreement with plaintiff? If not, is defendant 3 liable? (b) Was defendant 8 partner of defendant 1 in the elephant catching business and as such liable to the plaintiff?