KISANDAS RUPCHAND Vs. RACHAPPA VITHOBA SHILVANT

JUDGEMENT

(1.) On 20 March 1905 the suit out of which this appeal arises was instituted, the plaintiffs claiming an order for the dissolution of an alleged partnership and accounts. It was stated in the plaint that, in pursuance of the partnership agreement, the plaintiffs had brought in Rs. 4,001 as capital which was repayable, as to Rs. 3,001, on 1 November 1902, and, as to the remaining Rs. 1,000, on 8 November 1904.

(2.) The substantial defences were that the alleged partnership was never agreed to or undertaken, and that the plaintiffs never contributed Rs. 4,001 or any other sum as capital.

(3.) The Court of first instance raised several issues, and dismissed the suit on the grounds that no partnership was created and that the suit as framed would not lie. The learned Subordinate Judge found as a fact that the plaintiffs did deliver to the defendants Rs. 4,001 worth of cloth; "but" he says, "that is no reason why plaintiff should get relief in this suit. He made an experiment about his being a partner probably to avoid the payment of larger Court-fees, as is suggested by the defendant in his written statement; he has failed to prove his cage as brought, and did not ask to amend it, and I have no alternative but to dismiss it with all costs." From this determination the plaintiffs appealed, grounding their appeal on the contention that the partnership had been created and that the suit was in order. But this contention was abandoned when the appeal came on for hearing, and the plaintiffs, then represented by a new pleader, admitted that the facts stated in their plaint did not constitute a partnership, and prayed for leave to amend by adding a prayer for the recovery, of the Rs. 4,001. The learned Subordinate Judge of the lower appellate Court, being of opinion that the plaintiffs had from the first intended to sue only for the recovery of their money, but had been misled by their pleader, allowed the amendment to be made and ultimately decreed the plaintiffs claim for the Rs. 4,001 and a portion of the interest. His judgment allowing the amendment is dated 7 October 1907, and at this date the claim for the Rs. 4,001, or at least for the greater part of it, was barred by the law of limitation.