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Hardeo Ram Vs. (Firm) Girdhar Lal Kanhayia Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All280; 153Ind.Cas.510
AppellantHardeo Ram
Respondent(Firm) Girdhar Lal Kanhayia Lal
Excerpt:
- - 3. the revision therefore is allowed in part with costs proportionate to success and failure to the parties......as such are not partners in such business. the plaintiffs are father and son forming a joint hindu family and therefore they do not come under section 69, partnership act. learned counsel desired to take a further point not in his memorandum of revision to the effect that under order 30, rule 1(2) the plaint on behalf of the firm could not be verified by one member only. this particular plaint has been signed and verified by the father alone. but as the father and son form a joint hindu family hindu father as manager can act on be half of the family by signing and verifying a plaint. the next point which was taken was in regard to whether the decree was in accordance with the judgment. the judgment states:decreed with proportionate costs for rs. 100 usual pendente lite and future.....
Judgment:
ORDER

Bennet, J.

1. This is a civil revision by a defendant against a Small Cause Court decree. The suit was on account books for a debt. The claim was for Rs. 100 principal and Rs. 36 interest up to the date of the suit at 2 per cent, per mensem. The first point taken is that Section 69, Partnership Act, applied to the plaintiff firm and the suit was not maintainable. This section makes it necessary for a firm to be registered before it can sue. Section 5 of the Act states that the relation of partnership arises, from a contract; and not from status and in particular the members of a Hindu undivided family carrying on a family business as such are not partners in such business. The plaintiffs are father and son forming a joint Hindu family and therefore they do not come under Section 69, Partnership Act. Learned Counsel desired to take a further point not in his memorandum of revision to the effect that under Order 30, Rule 1(2) the plaint on behalf of the firm could not be verified by one member only. This particular plaint has been signed and verified by the father alone. But as the father and son form a joint Hindu family Hindu father as manager can act on be half of the family by signing and verifying a plaint. The next point which was taken was in regard to whether the decree was in accordance with the judgment. The judgment states:

Decreed with proportionate costs for Rs. 100 usual pendente lite and future interest.

2. In regard to interest, the third issue was 'Was any interest, stipulated?' and the finding was 'plaintiff has given up interest.' Therefore the claim was reduced from Rs. 136 to Rs. 100. Proportionate costs should have been awarded, but the costs entered in the decree arc Rs. 21. That is shown to be the total costs incurred in the suit for the plaint, the vakalatnama, the fee for vakil and notice. Accordingly I allow the revision on this part and direct that instead of Rs. 21 the decree shall be corrected to grant only 100/136 share of this Rs. 21. Some further argument was made in regard to pendente lite interest, but that point was not taken in the grounds of revision.

3. The revision therefore is allowed in part with costs proportionate to success and failure to the parties.


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