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Kistoormal and anr. Vs. Smt. Lachhma and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 48 of 1967
Judge
Reported in1974WLN(UC)1
AppellantKistoormal and anr.
RespondentSmt. Lachhma and anr.
DispositionAppeal dismissed
Cases ReferredKistoor Mal v. Azim Bux
Excerpt:
.....and their liability for the suit amount is therefore joint and several.;there is over-whelming evidence from the side of the plaintiffs that all the four defendants had jointly organised the exhibition and bad consequently pecuniary interest in its success or failure. they have thus been rightly held liable for the suit amount.;(b) practice - plea of limitation given up in first appeal--whether it can be allowed in second appeal.;the plea of limitation was, however, given up before the first appellate court and on going through the judgment of the trial court. i find that it is a mixed plea of fact and law and thus cannot be allowed to be raised in second appeal when it has been abondoned in the first appeal. - - 2. phoolchand and bhonrilal were satisfied with the decree and did..........by the district judge, jaipur city. consequently the said two defendants have come in second appeal.3. learned counsel for the appellants has urged that tbe aforesaid four defendants along with one defandant no. 5 shri datta had formed a society to organize the exhibition though the society was not registered and that the articles were taken on hire by the society and consequently the appellants could not be made personally liable for the suit amount. in support of his contention he has relied upon nalin behari v. bisweswar : air1961cal393 .4. it may be pointed out that in the calcutta case a cooperative society had been fo med under the bengal co-operative societies act, even though the society was not registered. admittedly the present is not a case of coopera-tive society. it.....
Judgment:

C.M. Lodha, J.

1. A decree for Rs. 1848/1/- was passed by the Additional Civil Judge, Jaipur City against four defendants, viz. defendant No. Phoolcband, President, defendant No. 2 Harinarayan Rathi Secretary, defendant No. 3 Bhonri Lal Join-Secretary, and defendant No. 4 Kisturmal Treasurer of the Raj Industrial and Crafts Exhibition organised at Atish, Tripdtiya Bazar, Jaipur on account of hire charges and price of certain articles supplied by the plaintiff-respondents at the exhibition.

2. Phoolchand and Bhonrilal were satisfied with the decree and did not file appeal. An appeal was filed by Hari Narayan and Kistoor Mal and that too was dismissed by the District Judge, Jaipur City. Consequently the said two defendants have come in second appeal.

3. Learned Counsel for the appellants has urged that tbe aforesaid four defendants along with one defandant No. 5 Shri Datta had formed a Society to organize the exhibition though the society was not registered and that the articles were taken on hire by the Society and consequently the appellants could not be made personally liable for the suit amount. In support of his contention he has relied upon Nalin Behari v. Bisweswar : AIR1961Cal393 .

4. It may be pointed out that in the Calcutta case a cooperative society had been fo med under the Bengal Co-operative Societies Act, even though the Society was not registered. Admittedly the present is not a case of Coopera-tive Society. It appears to be a case where more than two persons had under taken a joint venture of organising an exhibition. Consequently the Calcutta case has no application to the facts and circumstances of the presenS case. It further appears that the appellants along with other persons organised the exhibition in partnership and their liability for the suit amount is therefore joint and several. Hari Narayan and Bhonri Lal entered into the contract for taking the articles on hire. Kistoor Mal issued two cheques Ex. 24 and Ex. 25, in lieu of payments due to the plaintiffs. There is over-whelming evidence from the side of the plaintiffs that all the four defendents had jointly organised the exhibition and had consequently pecuniary interest in its success or failure. They have thus been rightly held liable for the suit amount.

5. It has been particularly argued for Kistoor Mal that he was an Honorary Treasurer and had no financial interest in the exhibition. In this connection my attention has been drawn to the statement of D.W. 1 Kistoor Mal Shah and also a judgment of this Court in S.B. Civil Revision No. 114 of 1958: Kistoor Mal v. Azim Bux, decided on 9-1-1962 against the judgment of the Small Cause Court Judge, Jaipur City, dated 23-12-1957 So far as the statement of D.W.I Kistoor Mol is concerned it is enough to state that it has not been accepted by the courts below which have preferred to place reliance on the evidence produced by the plaintiffs and sitting as a Court of Second Appeal, it is not possible for me to say that the learned District Judge had wrongly refused to accept the statement of Kistoor Mal. So far as the judgment in the revision goes, it is not binding on the plaintiffs, and the finding therein is only that it appeared that the financial interest in the exhibition belonged exclusively to Phoolchand and Kistoor Mal was only working in an honorary capacity. However, there is positive evidence in the present case that Kistoor Mal had financial interest in the exhibition and was not working in an honorary capacity and that evidence has been accepted by the courts below.

6. learned Counsel for the appellants also urged that the suit was barred by limitation. The plea of limitation was, however, given up before the first appellate court and on going through the judgment of the trial court I find that it is a mixed plea of fact and law and thus cannot be allowed to be raised in second appeal when it has been abondoned in the first appeal Moreover on hearing learned Counsel for the appellants I do not find force in this contention also,

7. The result is that this appeal has no force and is hereby dismissed with costs.


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