Ramkishandas vs Vinodiram Balchand

P.R. Sharma, J.—This is a plaintiffs'' second appeal against the judgment and decree dated the 31st of March, 1958 passed by the Addl. District Judge Shivpuri, in Civil first appeal No. 158 of 1952 whereby he reversed the judgment and decree dated 21-9-1951 passed by the Civil Judge 1st Class Shivpuri, in civil original suit No. 10 of 1951.

The suit out of whish this appeal arises was filed on the basis of the following facts: The plainstiffs Ramkishandas, Ghanshyamdas and Shyamsunder owned an oil-mill styled as "Ganesh Oil Mills" at Shivpuri. The defendant firm Vinodiram Balchand purchased through their broker at Delhi 500 maunds of aettem seed oil from the plaintiffs'' oil mills 250 maunds at the rate of Rs. 56-4-0 per maund and 250 maunds at the rate of Rs. 56-8-0 per maund. The contract was F. O. R. Shivpuri.

The defendant accepted delivery of 250 mds. but paid Rs. 250/- less than the contracted price; whereas he did not accept delivery at all of the remaining 250 maunds of oil. A notice of re-sale was given by the plaintiffs on 18-12-1950 and thareafter the goods were sold on 24-12-1950 at a loss of Rs. 8-8-0 per maund. The plaintiffs, therefore sued the defendant for recovery of a sum of Rs. 2,431 10-0.

The defendant in his written-statement admitted that 250 maunds of cotten seed oil were purchased at the rate of Rs. 56 4-0 per maund. He pleaded that a sum of Rs. 250/- was deducted from the contracted price on account of (he fact that the oil supplied was found to contain more than 3% fatty acids, which according to him was the limit agreed upon. The defendant pleaded that the plaintiffs agreed to deduction of a sum of Rs. 250/- because of the fatty aeids being in exeess of 3pc. With regard to be second contract at the rate of Rs. 56-8-0 per maund the defendant pleaded that since the plaintiffs did not agree to the condition that the oil should not contain fatty acids exceeding 3 p.c. he did not confirm the contract. He therefore, contended that the plaintiffs were not entitled to claim any damages for breach of the contract In his special pleadings the defendant pleaded that there was an express condition in the contract between the parties that fatty acids shall not exceed 3 p. c. and that the plaintiffs having not abided by this term of the contract the defandant had a right to repudiate it. In the alternative he pleaded that all contracts of purchase of cotton seed oil are subject to an implied condition that fatty acids should not exceed 3 p.c. It was also, stated that the defendant had referred to this condition regarding fatty acids in his letter dated 10-9-1950 and that the plaintiffs having not objected to the same they should be deemed to have admitted it.

The trial Judge decreed the suit, but on appeal the case was remanded under order 41 Rule 25 C. P. C. and after receipt of the trial Judge''s findings the learned Addl. District Judge by his judgment partly allowed the appeal and dismissed the plaintiffs'' claim to the extent of Rs. 2,147/15/-, but confirmed the decree of the trial court in respect of the : unpaid price of Rs. 250/- The plaintiffs have new come up in second appeal before this Court; wheress the defendant-firm has filed cross-objection in respect of the portion of the plaintiffs'' claim decreed against it.

One of the appellants namely Shyam Sunder Das died on the 30th of October, 1959. No application was made within the prescribed peried for his legal representatives to be brought on record. The appeal has, therefore, abated in so far as Shyamsunderdas is concerned. The question to be determined is whether in the absence of the legal representatives of Shyamsunderdas the appeal abates as a whole. Three applications were presented by the remaining appellants on 5-11-190 wherein it was stated that according to a terra in the partnership deed the partnership was, on the death of one of the partners to be continued by the surviving partners and that the surviving appellants are as such entitled to proceed with the appeal without bringing on record the legal representatives of Shyamsunderdas. Alternativaly it was submitted that a new partnership has been formed on 19-11-1959 between Ramkishandas, Ghanshyamdas and Mst. Shanti Devi the widow of Shayamsunderdas, according to which Ramkishandas and Ghanshyamdas are to conduct the business of the firm and Shyamsunderdas''s widow is to be only a silent partner. Lastly it is prayed that Shyamsunder das''s widow being a pardanashin lady and there being no other adult male representative of his, the delay in making the application for setting aside the abatement be condoned under S 5 of the Limitation Act. I shall exmine each one of these grounds separately.

The suit in the present case was filed by three persons as plaintiffs, namely (1) Ram kishandas, (2) Ghanshyamdas and (3) Shyam sunderdas. It was stated in para 1 of the plaint that the plaintiffs were owners of the ''Ganesh Oil Mills'' situate at Shivpuri. It thus becomes clear that the suit in the present case was not by a firm under Rule 1 of Order XXX CPC. The three plaintiffs sued in their own names. They no doubt stated in para 1 of the plaint that they were proprietors of the ''Ganesh Oil Mills'', but that does not make the suit a suit by a firm under Rule 1 of Order XXX CPC. in asmuchas a suit by a firm is different from a suit by the individual members composing the firm. The consequences of the death of a partner during the pendency of the suit or an appeal arising therefrom would not be the same in both cases. What is contemplated by Order XXX Rule 1 CPC is that two or more persons who constitute a firm may sue in the name of the firm without mentioning in the plaint the names of the partners. In the case of Mohan Lal Ram Gopal Vs. Udai Ram-Sewa Ram and Others, the plaint described the plaintiff as the "firm X through B the proprietor of the said firm". It was held that the plaintiff cannot be deemed to be suing in the firm''s name, but in his own name and the mere fact that the firm''s name was mentioned did not make any difference. There is nothing in the plaint in the present case to suggest, as is now contended by the learned counsel for the appellants, that Ramkishandas was suing in a representative capacity as karta of Hindu joint family. Taking the plaint as it stands it must be held that the suit out of which this appeal arises was not a suit by a firm under Order XXX Rule 1 CPC, but was a suit filed by the individual partners of a firm in their own names.

In the case of Chhoielal Ratanlal vs. Rajmal Milapchand (AIR 1951 NAG. 448) the defeneants were sued as individual and advantage was not taken of the provisions of Order XXX Rule 1 CPC. It has held that mere mention of the name of the firm in the description of the defendants does not mean that the firm is being sued and order XXX Rule 4 CPC was held not to be applicable. This principle would apply equally to suits by the partners of a firm in their individual names.

It was observed by Pollock J. in Ramchander Ramkishan vs. R S. Narayandas Rathi (ILR 1937 NAG 423) as follows:-

Ordinarily one of the joint promisees cannot by himself enforce a joint promise but each of several joint promisors is liable to the promisee.

These observations were quoted with approval in Chhotelal Ratnlal''s case (supra) Section 45 of the Contract Act would apply to the case of joint promises whether they be partners, co-sharers or members of a joint Hindu family carrying on business in partnership. (See Mulla''s Contract Act 8th Edition at page 318). If the suit is not brought in the name of the firm but in the name of the individual partners... on the death of one of them the cause of action will not survive to the surviving plaintiff or plaintiffs alone but will according to the previsions of Section 45 of the Contract Act survive to the surviving plaintiff or plaintiffs jointly with the legal representatives of the deceased partner. Rule 2 of Order XXII CPC will, therefore have no application to such a case. Since no application was made within the prescribed period to bring the legal representatives of Shyamsunderdas and the cause of action does not survive to remaining appellants alone the entire appeal must be deemed to have abated.

The application to set aside the abatement was made on the 5th of November, 1960 that is to say nearly nine months after the abatement of the appeal. There is no affidavit from the plaintiffs'' counsel stating that he made a bonafide error as to the legal position arising from Shyamsunderdas''s death In the case of Abdeali vs. Th. Vishwanathsingh (AIR 1937 NAG 97)the plaintiffs were minors and were represented by a pardanashin lady. It was held that the delay in making an application for bringing on record the legal representatives of a deceased defendant could not be condoned on account of a mistake on the part of the plaintiffs'' pleader.

The surviving appellants in the present case could not but have known the date on which Shyamsunderdas died and if they had informed their counsel, he would certainly have done the needful in the matter.

For the reasons stated above I hold that the entire appeal has abated and that there are no grounds for condonation of the in ordinate delay after which the applications for setting aside the abatement and bringing on record the legal representatives of Shyamsunderdas have been made. The applications are hereby rejected without any order as to costs.

In view of the abatement of the appeal it is not necessary to consider the cross objections; since when an appeal goes out by abatement the cross objections go out with it. The exceptions mentioned in Order 41 Rule 22 CPC do not cover a case in which the appeal has abated. (See Purushottamdas vs. Daskaram alias Bachubhai 1938 NLJ 399).