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Ramagouda and anr. Vs. Gonhal Basangouda Basavarajappa Rajendra Gunj Raichur - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberMisc. Second Appeal No. 145 of 1966
Judge
Reported inAIR1969Kant111; AIR1969Mys111; (1968)1MysLJ466
ActsIndian Companies Act
AppellantRamagouda and anr.
RespondentGonhal Basangouda Basavarajappa Rajendra Gunj Raichur
Excerpt:
.....to pay the amount, the suit against the defendants had to be filed. by admitting the evidence, the learned district judge permitted the plaintiff to patch up the weak points of his case and fill up the lacuna in his evidence. though the defendants had raised objections in the written statement, the plaintiff failed to produce this evidence and this evidence has been made use of to fill up the lacuna and as such it should be ignored. he has cited before me [1951]2scr258 in support of his argument that the additional evidence should not be let in to patch hp the weak points and fill up the gaps in the cases and this power should be very sparingly exercised by the appellate court after recording reasons. apart from this, it is well to remember that the appellate court has the power to allow.....1. the appellants before this court were defendants in the trial court. the plaintiff filed a suit for recovery of a sum of rs. 15,640 i. g. the suit was filed by a firm by name 'gonal basangouda basavarajappa rajendra ganj, raichur' through owner mahadevappa. the case of the plaintiff was that the father of the defendants was running a dalal shop at raichur and for the purposes of his trade, obtained the said loan, after signing in the account books of the firm; that the deceased father of the defendants did not return the loan in spite of several demands and after his death, since the defendants also failed to pay the amount, the suit against the defendants had to be filed. the main contention of the defendants was that the suit was not maintainable as it was a partnership firm and.....
Judgment:

1. The appellants before this court were defendants in the trial Court. The plaintiff filed a suit for recovery of a sum of Rs. 15,640 I. G. The suit was filed by a firm by name 'Gonal Basangouda Basavarajappa Rajendra Ganj, Raichur' through owner Mahadevappa. The case of the plaintiff was that the father of the defendants was running a Dalal shop at Raichur and for the purposes of his trade, obtained the said loan, after signing in the account books of the firm; that the deceased father of the defendants did not return the loan in spite of several demands and after his death, since the defendants also failed to pay the amount, the suit against the defendants had to be filed. The main contention of the defendants was that the suit was not maintainable as it was a partnership firm and Mahadevappa was not its sole proprietor. The defendants also denied that their deceased father took the loan.

2. The learned Civil Judge, after recording fully the evidence, dismissed the suit merely on the preliminary ground that the suit is not maintainable. He held that there was no evidence as to who were the partners of the said firm and there was nothing to show that the plaintiff had got any interest in the said firm. In the appeal filed by the plaintiff, the learned District Judge of Raichur permitted the plaintiff under Order 41 Rule 27 of C.P.C. to produce the Registration Certificate issued by the Registrar of Firms which showed that Mahadevappa was one of the partners of the firm. The learned District Judge set aside the order of the lower court and remanded the case back for disposal according to law. The appeal is directed against the said order passed by the learned District Judge of Raichur.

3. Sri K. A. Swami, learned counsel appearing on behalf of the appellants, has urged two points before: (1) The suit has been brought on behalf of Mahadevappa and it cannot be said that the suit is brought on behalf of the firm. (2) The lower appellate court erred in taking additional evidence and the learned District Judge in doing so acted against the provisions of Order 41 Rule 27 of C.P.C.

4. I will first deal with the second contention of Sri Swami. He argues that the learned District Judge acted in violation of the provisions of Order 41 Rule 27 C.P.C. in admitting additional evidence in the appeal. This was not a case where the evidence admitted was not available in the trial court. By admitting the evidence, the learned District Judge permitted the plaintiff to patch up the weak points of his case and fill up the lacuna in his evidence. Though the defendants had raised objections in the written statement, the plaintiff failed to produce this evidence and this evidence has been made use of to fill up the lacuna and as such it should be ignored. He also contends that the learned District Judge has not recorded any reasons for permitting the production of this additional evidence. He has cited before me : [1951]2SCR258 in support of his argument that the additional evidence should not be let in to patch hp the weak points and fill up the gaps in the cases and this power should be very sparingly exercised by the appellate court after recording reasons.

5. Sri Basawalingappa, learned counsel appearing on behalf of the respondents, has relied on the later decisions of the Supreme Court and has contended that omission to give reasons does not vitiate the order. Additional evidence can be admitted to enable the court to pronounce judgment. In Venkataramaiah v. Seetha Rama Reddy : [1964]2SCR35 their Lordships of the Supreme Court at para 13 of the judgment have observed as follows:

'It is true that the word 'shall' is used in R. 27(2), but that by itself does not make in mandatory. We are therefore of opinion that the omission of the High Court to record reasons for allowing additional evidence does no vitiate such admission.'

Their Lordships have also observed at para 16 of the judgment as follows:

'Apart from this, it is well to remember that the appellate Court has the power to allow additional evidence not only if it requires such evidence 'to enable it to pronounce judgment' but also for 'any other substantial cause.' There may will be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence 'to enable it to pronounce judgment'. It still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence 'for any other substantial cause' under R. 27(1)(b) of the Code.'

Here the learned District Judge has pointed out that the doubt raised by the defendants was whether the plaintiff was a partner of the firm. To help to decide this controversy between the parties and to arrive at a just decision of the case, the learned District Judge thought fit to admit the registration certificate issued by the Registrar of Firms which showed who were the partners of the said firm. The appellate court required this document to be produced to enable it to pronounce judgment. I am, therefore, of the opinion that there is no merit in the second contention urged by Sri Swami.

6. The first contention of Sri Swami is that the suit has been brought on behalf of Mahadevappa and it cannot be said to be on behalf of the firm. In the plaint Mahadevappa has stated that he is the owner of the firm. Sri Swami contends that under Order 30 Rule 1 only a partner of the firm can bring a suit on its behalf and the trial court was fully justified in dismissing the suit, He has cited before me AIR 1936 Patna 140; AIR 1951 Nag 448 and in support of his contention that the suit is not maintainable.

7. Sri Basawalingappa on behalf of the respondents, on the other hand, argued that the plaint clearly discloses that the suit was filed by the firm. The plaint throughout discloses that the said loan was taken from the firm, after signing in the account books of the firm, Instead of describing himself as partner of the firm, Mahadevappa has described himself as owner of the firm. He argues that the evidence discloses that the plaintiff was in custody and the suit was filed in a hurry on the last day of limitation. It was open to the defendants under Order 30 Rule 2 to demand from the plaintiff particulars and the names of the persons constituting the firm, which the defendants did not do. It was open to the court under S. 153 of the S. 153 of the C.P.C. to amend any defect in proceedings. Sri Basawalingappa contends that the amount involved in the suit is a big amount and the plaintiff should not be ousted only on a technical point. He has relied on : [1961]1SCR982 , and in support of his contentions.

8. In view of the authoritative ruling of the Supreme Court on the point in question, I think it is unnecessary to (enquire?) into the rulings of the various High Courts referred to by counsel on either side. In : [1961]1SCR982 their Lordships at para 8 of the judgment have observed thus;

'It is clear from this provision of the Act that the word 'firm' or the 'firm name' is merely a compendious description of all the partners collectively. It follows, therefore, that where a suit is filed in the name of a firm it is still a suit by all the partners of the firm unless it is proved that all the partners had not authorised the suit. A firm may not be a legal entity in the sense of a corporation or a company incorporated under the Indian Companies Act, but it is still an existing concern where business is done by a number of persons in partnership. When a suit is filed in the name of a firm it is in reality a suit by all the partners of the firm.'

In the same paragraph lower down their Lordships have observed as follows:

'The High Court referred to a number of decisions to which no particular reference need be made but they do support the view taken by the High Court that in the present case the plaintiff described in the plaint as the firm of Manilal & Sons was a mere misdescription capable of amendment and not a case where a plaint had been filed by a non-existent person and therefore a nullity.'

In this case, as contended by Sri Basawalingappa, suit has been filed by the firm. The whole loan transaction was with the firm. The loan amount was taken after signing in the account books of the firm. Mahadevappa is undoubtedly one of the partners of the firm. Instead of saying that he has filed a suit as a partner, by mistake he has described himself as owner of the firm. It has been pointed out by Rajagopala Ayyangar J. as he then was in the Bench decision of the Madras High Court Mura Mohideen v. Mohomed : AIR1955Mad294 as follows:

'If however imperfectly and incorrectly a party is designated in a plaint the correction of the error is not the addition or substitution of a party but merely clarifies and makes apparent what was previously shrouded in obscurity by reason of the error of mistake. The question in such a case is one of intention of the party and if the Court is able to discover the person or persons intended to sue or to be sued a mere misdescription of such a party can always be corrected provided the mistake was bona fide vide O. 1 R. 10, C.P.C.'

9. As pointed out by the said madras decision, under Order 1, Rule 10 where a suit has been instituted in the name of a wrong person as a plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit if satisfied that the suit has been brought through bona fide mistake, order any other person to be substituted or added as plaintiff. Under Order 6 Rule 17, the Court may at any stage of the proceedings allow either party to alter or amend his pleadings and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. Under Section 153, C.P.C. also the court may at any stage as it may think fit, amend any defect or error in any proceedings in a suit, and all such necessary amendments shall be made for the purpose of determining the real question or issue raised in the suit.

10. I am therefore clearly of the view that the trial court has erred, that too after recording full evidence in the case, in dismissing the plaintiff's suit solely on the ground plaintiff is not entitled to file the suit. In the circumstances of the case, the learned District Judge was justified in setting aside the order of the trial court and remanding the matter and directing the trial court to hear the case and dispose it of according to law.

11. In the result, for the reasons mentioned above, there is no merit in this appeal and the same is dismissed. In the circumstances of the case, there will be no order as to costs.

12. Appeal dismissed.


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