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Kashi Ram Vs. Firm Jai Ram Ganga Ram - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. Nos. 46 and 47 of 1955
Judge
Reported inAIR1956HP65
ActsConstitution of India - Article 133; ;Code of Civil Procedure (CPC) , 1908 - Section 110 - Order 30, Rule 1 - Order 41, Rule 27
AppellantKashi Ram
RespondentFirm Jai Ram Ganga Ram
Appellant Advocate D.N. Awasthy, Adv.
Respondent Advocate Sarvasri Tek Chand and; H.C. Anand, Advs.
DispositionPetition rejected
Cases ReferredSewak Ram v. Municipal Board
Excerpt:
- .....was to sue for the rendition of accounts. (e) kashi ram denied that he had purchased the plaintiffs' firm or agreed to pay them any amount. the business of the firm bijai ram kashi ram & co. was run by the plaintiffs, who had all the account-books in their possession. 3. in the result, kashi ram contended that the plaintiffs were not entitled to any relief.4. the trial court (district judge of bilaspur) found in favour of the plaintiffs and against the defendants. consequently, he granted the plaintiffs a decree for rs. 23,634/5/- (after allowing for the credit of rs. 2,420/8/3, admittedly afforded to the plaintiffs). interest was, however, disallowed.5. against that decision, both the parties came up in appeal. regular first appeal no. 37 of 51 was filed by kashi ram and the.....
Judgment:
ORDER

Ramabhadran, J.C.

1. These are two connected petitions for grant of certificate for appeal to the Supreme Court against the decision of this Court dated 10-8-1955 in Regular First Appeals Nos. 34 and 37 of 1951--which were disposed of by a common judgment. The petitions arise under the following circumstances : Jai Ram and Ganga Ram filed a suit against Bijai Ram Kashi Ram for the recovery of a sum of Rs. 30,534/10/- (Rs. 28,054/13/3 capital and the balance by way of interest) with the allegation that they (the plaintiffs) had been carrying on business at Simla styled as Firm Jai Ram Ganga Rani, while the defendants carried on business in the name of Firm Bijai Ram and Company.

On 31-3-1936, the latter took over the assets and liabilities of the former firm for a sum of Rs. 26,054/13/3. The plaintiffs' case was that the sum of Rs. 26,054/13/3 aforesaid plus interest thereupon was due to them from the defendants less a sum of Rs. 2,420/8/3 for which they had been afforded credit by the defendants.

2. The suit was resisted by Kashi Ram, inter alia, on the following grounds :

(a) The frame of the suit was defective, since it purported to be on behalf of Firm Jai Ram Ganga Ram which had already been dissolved. Ganga Ram was a necessary party.

(b) Bijai Ram (father of Kashi Ram) had died long before the institution of the suit and, therefore, no suit lay against him. His brother, Ram Lal, who

See AIR 1955 Him Pra 57 Ed. was joint, with him, should have been impleaded as a defendant.

(c) All the partners of the Firm Bijai Ram & Company should have been made parties to the suit.

(d) Since the Firm Bijai Ham Kashi Ram & Co., according to the plaintiff's, had been dissolved on 4-12-1994 B., the proper course for the plaintiffs was to sue for the rendition of accounts.

(e) Kashi Ram denied that he had purchased the plaintiffs' firm or agreed to pay them any amount. The business of the Firm Bijai Ram Kashi Ram & Co. was run by the plaintiffs, who had all the account-books in their possession.

3. In the result, Kashi Ram contended that the plaintiffs were not entitled to any relief.

4. The trial Court (District Judge of Bilaspur) found in favour of the plaintiffs and against the defendants. Consequently, he granted the plaintiffs a decree for Rs. 23,634/5/- (after allowing for the credit of Rs. 2,420/8/3, admittedly afforded to the plaintiffs). Interest was, however, disallowed.

5. Against that decision, both the parties came up in appeal. Regular First Appeal No. 37 of 51 was filed by Kashi Ram and the prayer made by him in that appeal was that the decision of the trial Court be set aside and the suit dismissed in toto. Regular First Appeal No. 34 of 51 filed by Jai Ram Ganga Ram, OH the other hand, was directed against that portion of the trial Court's decree, whereby they were deprived of interest. The prayer made by them was that they be awarded interest as claimed.

6. Both these appeals were heard together and disposed of by a single judgment of this Court dated 10-8-1955. The order of this Court was that Kashi Ram's appeal, i.e. No. 37 of 51, stood rejected, while that of Jai Ram Ganga Ram (Regular First Appeal No. 34 of 51) was allowed, i.e. they were granted a decree for a further sum of Rs. 6,900/- as interest over and above the sum decreed by the District-Judge.

7. It is against these decisions that the petitioner now wishes to go up in appeal to the Supreme Court. The relief proposed to be sought in that Court is that the decision of this Court in Regular First Appeals Nos. 34 and 37 of 1951 be set aside and the suit of the respondents be dismissed in toto.

8. It is common ground that the decision of this Court dated 10-8-1955 was one of affirmance, i.e. the decision of the District Judge was affirmed, except in the matter of interest. Consequently, although the amount of the subject-matter of the dispute exceeded Rs. 20,000/-, nevertheless, an appeal would not lie to the Supreme Court, unless this Court certifies that the appeals involve some substantial question of law (vide Article 133 (1) (c) of the Constitution).

9. Learned counsel for the petitioner (Mr. D. N. Awasthy) urged that the appeals do involve substantial questions of law and, accordingly, prayed that certificates to that effect be granted. I shall refer to his arguments seriatim.

10. In the first place, learned counsel argued that the suit was incompetent as it was filed in the name of the firm after its dissolution. The plaint was instituted on 13-3-1942 under the signature of Jai Ram alone with the following heading : 'Firm (1) Jai Ram (2) Ganga Ram sons of Tikhu Ram caste Brahmin resident of Amarpur Pargna Teun, through Jai Ram aged 40 years son of Tikhu Ram plaintiff No. 1.'' On 13-3-1947, Ganga Ram applied to the Court for permission to sign the plaint. Permission was accorded and he then signed the plaint. Limitation had already expired on 31-3-1942.

On the basis of the provisions of Section 22, Limitation Act, as well as the decisions reported in--'South India Industrials Ltd. v Narasimha Rao', AIR 1927 Mad 468 (A) and--'Firm Mohan Lal Ram Gopal v. Udai Ram Sewa Ram', AIR 1936 Pat 140 (B), Kashi Ram's learned counsel contended that this was tantamount to addition of a new party after the expiry of the period of limitation. This Court, however, overruled the objection holding that this was not a case of addition of a new plaintiff and, consequently, Section 22, Limitation Act had no application.

In coming to that conclusion, I had referred to the decisions reported in--'Bhagirath Singh v. Munga Lal', AIR 1939 Pat 40 (C) and--Municipal Commissioners, Dacca v. Gangamani Chaudhurani', AIR 1940 Cal 153 (D). As regards the omission on the part of Ganga Ram to sign the plaint originally, I had expressed my view--agreeing with that of the trial Court--that such omission was not fatal to the suit and did not affect limitation. In corning to that conclusion, I had referred to two rulings i.e.--'Ganga Ram v. Secy. of State', AIR 1937 Pesh 17 (E), and--'Wali Mohammad Khan v. Ishak Ali Khan', AIR 1931 All 507 (F).

11. As regards the plea that a suit in the name. of a dissolved firm was not maintainable, following--'Agarwal Jorawarmal v. Kasam', AIR 1937 Nag 314 (G) and--'Muthu K. M. Mayappa Chettyar v. Periah', AIR 1931 Rang 74 (1) (H), I held that the firm must still be deemed to be alive for the purpose of the recovery of a sum of Rs. 26,054/13/3, which was found due at the time' when the firm Jai Ram Ganga Ram was taken over by the new firm Bijai Ram Kashi Ram & Company and the previous accounts were gone into and settled. Consequently, the suit, in my opinion, could not fail on those grounds.

12. Mr. Awasthy then urged that the Chopta, produced by the plaintiffs was a suspicious document--all the more so, since the original account-books were not produced. Mr. Tek Chand for the respondents rightly pointed out that the plaintiffs' case did not rest mainly on the Chopta. It was only one piece of evidence relied upon by the plaintiffs.

Mr. Tek Chand argued--and in my opinion not without justification--that even if the Chopta be left out of consideration, still the plaintiffs' case is well supported by other evidence, oral and documentary, produced by them. He further pointed out that the admissibility of the Chopta has not been questioned by the learned counsel for the petitioner. The latter's criticism is confined to its suspicious nature. Mr. Awasthy cited--'Rajah Mahadeva Royal Y.B. v. Rajah Veerabasava Chikka Royal', AIR 1942 Mad 368 (I), where a Division Bench of that High Court observed as follows :

'Although we are clearly of opinion that the documents Ex. JJJ, Ex. KKK, Ex. LLL and Ex. MMM were inadmissible in evidence, we feel that we would not be justified in dismissing this application for leave on that ground as undoubtedly these documentsare of great importance and if they are held to be admissible, they might affect the result of the appeal. If the words 'substantial questions' are to be understood in their being of substance to the parties, we must hold that the decision in regard to the non-admissibility of the documents is a substantial question which would entitle the petitioner to have a certificate.'

Mr. Tek Chand for the respondents argued that the above decision is not applicable to the facts of the present case, since the Chopta was admitted into evidence and its admissibility has not been questioned. The position would have been different, if material documents relied upon by the petitioner had been ruled out as inadmissible and the result of the suit would have been different, if they had not been so ruled out. I find considerable force in this argument.

13. Another point argued by Mr. Awasthy wasthat the documents Ex. C.W.1/1 and Ex. C.W.1/2have not been correctly interpreted by this Court.In the course of my judgment, while dealing withthe plaintiffs' evidence, I referred to the statementof Paras Ram, Munim (P.W. 7), dealt with undersub-para (d). In that connection, I had remarkedthat the statement of Paras Ram was corroborated byan extract from the ledger book, Ex. C.W.4/1 aswell as from an extract from the Rokar Ex. C.W.4/2.I had also referred to the registered partnership deed, Ex. C.W.1/1.

Paragraph 3 of the partnership deed provided that an extra amount, approximately Rs. 1,04,000/-, representing the assets of the previous firm, was invested in the new firm by Bijai Ram Kashi Ram and the new firm, in its turn, undertook to pay interest on the aforesaid sum of Rs. 1,04,000/- at the rate of -/8/- per cent per mensem.

Reading the three documents, Exs. C.W.1/1, C.W.4/1 and C.W.4/2 together, the conclusion, in my opinion, was irresistible that the sum of Rs. 1,04,000/-, referred to in para 3 of the partnership deed, did include the sum of Rs. 26,054/13/3, the ascertained value of the assets of Ganga Ram Jai Ram on 31-3-1936. That was a finding of fact and not a question of law. I then pointed out that Jai Ram was not cross-examined, although it was open to Kashi Ram to cross-examine him through pleader, if not personally.

14. Learned counsel for the petitioner contended that the testimony of the plaintiffs' witnesses was unworthy of credence and the mere fact that they were not subjected to cross-examination should not have gone against the defendant. This Court, after referring to the testimony of Asa Ram, Mool Raj, Ramanand, P. Ws., remarked that they were not cross-examined and, consequently, their evidence must be accepted unless there were some inherent improbabilities therein as was held in--'Karnidan Sarda v... Sailaja Kanta', AIR 1940 Pat 683 (J).

I was of the view that there was nothing inherently improbable in their statements. Raghunand (P. W. 4) was not cross-examined and I found nothing inherently improbable in his statement. Ram Lok (P. W. 5) was not cross-examined either, although the Commissioner, who recorded his statement, put some questions. I was of the view that Ram Lok's statement should be relied upon. The same remarks apply to Kura Mal (P. W. 6). Jai Ram appeared as a witness and was cross-examined, but was not shaken, Only one question in cross-examination was put to Gopi Ram (P. W. 3), but that made no material difference. As regards Ralla Ram, he was cross-examined, but not shaken.

15. I have gone into this matter in some detail to show that the value of the testimony of these witnesses was assessed in accordance with well defined legal principles. Therefore, the findings based on their testimony are findings of facts and not of law.

16. Another point urged by Mr. Awasthy was that this Court should have allowed the application made by Kashi Ram under Order 41, Rule 27. It was urged that had the document dated 1-4-1935 been admitted into evidence, it would have shown conclusively that the plaintiffs' claim was untenable.

17. In rejecting that application, I had pointed out that the evidence produced by the parties did show that on 31-3-1936, the assets & liabilities of the old firm Jai Rani were worked out and after adjusting all amounts due to the new firm a sum of Rs. 26,054/13/3 was found due to Jai Ram Ganga Ram and Kashi Ram took upon himself the liability to pay this amount. Therefore, in my opinion, it was immaterial if Bijai Ram was or was not a partner in the firm Jai Ram Ganga Ram for the purpose of disposing of the appeal (Regular First Appeal No. 37 of 51).

Mr. Tek Chand for the respondents urged that the rejection of the application under Order 41, Rule 271 would not amount to a substantial question of law. He pointed out that under the above rule it is for the appellate Court to allow additional evidence to be produced, only if and when it considers it necessary to pronounce judgment or for any other substantial cause. In the present case, I had expressed my view that the production of the document in question was not necessary for the purpose of disposing of the appeal. Therefore, no certificate can be granted on this score as well.

18. In conclusion, I may refer to certain rulings cited by learned counsel for the parties, (a) Mr. Awasthy for the petitioner cited--'Raghunath Prasad Singh v. Deputy Commissioner of Partabgarh', AIR 1927 PC 101 (K), wherein their Lordships of the Privy Council indicated that:

'A substantial question of law does not mean a question of general importance, but the words 'substantial question of law' mean a substantial question of law as between the parties in the case involved.''

Mr. Tek Chand for the respondents rightly pointed out that this ruling will not help the petitioner unless he can show that some substantial question of law--as opposed to substantial question of fact--is involved for decision. As has been shown above, no such question arises here.

19. (b) In--'Mathura Kurmi v. Jagdeo Singh', AIR 1928 All 61 (L), cited by learned counsel for the respondents, Mears C.J. and Lindsay J., held as follows :

'In these circumstances, we do not think that the application of well-defined legal principles to a particular set of facts raises any question of law which can fairly be described as substantial. The case does not, in our opinion, fulfil the requirements of Section 110, Civil P. C. Nor is it a case which we could certify as being otherwise fit for appeal to His Majesty.''

In the course of this order, I have pointed out that the evidence of the parties has been assessed and appraised in consonance with well defined legal principles.

20. (c) 'Nathoo Lal v. Durga Prasad', AIR 1954 SC 355 (M), cited by Mr. Awasthy, involved a question whether a testamentary disposition by a Hindu in favour of a female heir conferred on her only a limited estate in the absence of evidence that he intended to confer on her an absolute interest in the property. This was held by their Lordships of the Supreme Court to be a substantial question of law. No such question arises here.

21. To sum up, therefore, in my opinion, no substantial question of law arose in Regular First Appeal No. 37 of 1951. Such questions as arose for determination were material questions of facts, which were decided on the evidence produced by the parties and in accordance with the well established legal principles. There was no conflict of judicial opinion on any point.

22. As regards the other appeal, Regular First Appeal 34 of 1951, the only point that arose for determination was that whether the trial Court was justified in depriving the plaintiffs of interest. Considering that the plaintiffs have been kept out of their money for several years and that they claimed interest at a reasonable rate, namely six per cent per annum, I was of the opinion that they should not have been deprived of interest. In that connection, I had referred to--'Muhammad Abdul Gaifur v. Hamida Beevi Animal', 42 Mad 661: (AIR 1919 Mad 164) (N);--'Aijaz Hussain v. Maqbul Hussain', AIR 1935 Lah 307 (O);--'Jagat Kishore Pd. Narain Singh v. Prameshwar Singh', AIR 1951 Patna 348 (P) and--'Sewak Ram v. Municipal Board, Meerut', AIR 1937 All 328 (Q). Application of well established legal principles to the question of interest, therefore, did not involve any substantial question of law.

23. The result is I am unable to certify that the appeals involve some substantial question at law. The petitions, accordingly, fail and are rejected with costs assessed at Rs. 50/- (Rupees fifty), i.e. for both these petitions Nos. 46 and 47 of 1956 put together.

24. This order will be read in both the petitions.


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