Abdul Karim v. Ramdas Narayandas

1. This is an application for revision of the judgment and decree passed in a small cause Suit against the defendant applicant.

2. The relevant facts are briefly these. The non-applicant Musa Ibrahim describing himself as managing wahiwatdar of the shop Ramdas Narayandas of Paratwada brought a suit against the defendant for recovery of a sum of Rs. 255-6-0 alleged to be due as balance of the price of certain groceries purchased by the defendant from the shop. In addition, the non-applicant claimed a earn of Rs. 24-2-0 by way of interest at 10% p.m on this amount from the date of purchase till the date of suit. The plaint is signed by the non-applicant Musa Ibrahim alone. The defendant admitted the claim except in respect of the item of Rs. 171 and the amount of interest. He contended that the plaint was not signed by the owner of the shop and that the suit, therefore, be dismissed.

3. The Court below held that the plaint was properly signed, that the defendant had purchased beetlenuts worth Rs. 171 and decreed the claim including interest at 6% per annum.

4. The first point argued on behalf of the applicant is that the shop Ramdas Narayandas is really a partnership firm and that as it was not registered on the date of the suit, the Court below was bound to dismiss it under Section 69(2) of the Partnership Act. On behalf of the non-applicant it is argued that the suit is not brought on behalf of the partnership firm and that, at any rate, as no plea founded on Section 69(2) of the Partner, ship Act, was taken on behalf of the applicant in the Court below, it should not be allowed to be taken in revision. It is further stated that the firm has been registered now and, that, therefore, the difficulty, if any, existing on the date of the institution of the suit must be deemed to have been cured.

5. There is no substance in the argument advanced on behalf of the non-applicant that the suit was instituted by Musa Ibrahim as the sole owner or proprietor of the shop Ramdas Narayandas. For one thing this argument runs counter to the statement of the learned counsel that the firm has since been registered. Then again Musa Ibrahim has described himself in the title of the plaint as the managing wahiwatdar of the shop. A managing wahiwatdar does not mean a proprietor, but could mean either the managing proprietor or a manager. If it means a managing proprietor, then clearly the shop is owned by more than one person and is, therefore, a firm. If it means a manager, then he could be only an agent or a servant of the proprietor. An agent or a servant of the proprietor has no right to institute a suit on behalf of his principal or master unless there is a power-of-attorney in his favour. I, however, agree with the learned counsel for the applicant that Musa Ibrahim cannot be regarded merely as manager of the shop because he has admitted in his evidence that he is a managing partner of the firm Ramdas Narayandas. The learned counsel for the non-applicant referred to the decision in (Firm) Mohan Lal Ram Gopal v. (Firm) Udai Ram Sewa Ram, A.I.R (23) 1936 Pat. 140 : (161 I.C 516), which is to the effect that the plaintiff describing himself as “Firm X, situate in Y, through B, proprietor of said Firm”—cannot be deemed to sue in the firm's name but in his own name. Here, as I have said, the non-applicant Musa Ibrahim is not the sole proprietor of the firm and so it cannot be said that he sued in his own name and not in the name of the firm. This decision does not, therefore, assist him.

6. It is admitted by the non-applicant Musa Ibrahim in his evidence that the firm was not registered on the date of the suit, for even on the date on which he deposed. The question is whether the applicant is entitled to rely on this admission and contend in revision that the suit should have been dismissed under Section 69(2) of the Partnership Act, It is no doubt true, as has been held in Siddik Mahomed Shah v. Mt. Saran, A.I.R (17) 1930 P.C 57 : (24 S.L.R 138) and several other cases, that evidence without plea is inadmissible and cannot be looked into but, in my opinion what applies to evidence does not apply to the admission of the opponent which discloses an illegality rendering the claim of the opponent untenable in a Court of law. This would follow from the decisions in Mohanlal Jagannath v. Kashiram Gokul, A.I.R (37) 1950 Nag 71; Asaram v. Ludheshwar, I.L.R (1939) Nag. 1 at p. 41 : (A.I.R (25) 1938 Nag. 335 F.B); Alice Mary Hill v. William Clarke*, 27 ALL. 266 : (1 A.L.J 632), Surajmull Nagoremull v. Triton Insurance Co. Ltd., 52 Cal. 408 : (A.I.R (12) 1925 P.C 83) and Gopinath Motilal v. Ramdas, A.I.R (23) 1986 Cal. 133 : (161 I.C 741). In the circumstances, I feel, I am bound to take notice of the fact that the firm was not registered at the date of suit and to consider whether by reason of it the non-applicant's suit must fail.

7. The Court below has held that the suit is not based upon a contract and, therefore, the provisions of Section 69(2) of the Partnership Act, do not operate as a bar. The Court has given no reason for coming to the conclusion that the suit is not based upon a contract. The non-applicant's allegation is that the amount is due in respect of the price of certain articles sup-plied by the shop through the applicant. If the transaction does not amount to a contract I would like to know the category in which it would fall. There is indeed, no other category and the learned counsel for the non-applicant did not even suggest that there is any other. I, therefore hold that the provisions of Section 69(2) of the Partnership Act, would apply to the present case.

8. The question then is whether in view of the statement of the learned counsel for the non applicant that the firm has since been registered, the case should be remanded to the Court below for amendment of the plaint. In Ponnuchami Goundar v. Muthusami Goundar, I.L.R (1942) Mad. 355 : (A.I.R (29) 1942 Mad. 252), it has been held that under Section 69 of the Partnership Act, the registration of a firm is a condition precedent to its right to institute a suit and a Court has no jurisdiction to proceed with tee trial of a suit when the condition precedent has not been fulfilled. It has further been held that registration of the firm subsequent to the date of institution of the suit cannot remedy the defect and the Court is bound to dismiss it. A contrary view as to the effect of the registration of a firm subsequent to the Suit was expressed by Gruer, J. in obiter in Jakiuddin v. Vithoba, 1939 N.L.J 427 : (A.I.R (26) 1939 Nag. 301) but it was abandoned by him later in Kanchedilal v. Gaorishankar, Civil Revn. No. 765 of 1938, D/- 10-7-1940. In Mahadeo v. Shah Vijaya Kumar Hiralal, Civ. Revn. No. 613 of 1949 D/- 20-4-1950, Deo, J., has come to the same conclusion as Gruer, J. in his second decision. It is no doubt true that in Varadarajulu Naidu v. Rajamanika Mudaliar, A.I.R (24) 1937 Mad. 767 : (176 I.C 916) and Radha Charan Saha v. Matilal Saha, 41 C.W.N 534, it was held that a suit could be validated by the subsequent registration of the firm. But the first of these two decisions was overruled in Ponnuchami Goundar v. Muthusami Goundar, I.L.R (1942) Mad 355 : (A.I.R (29) 1942 Mad. 252) and the second one is the solitary case which takes this view. In addition to the decisions I have referred to. I may mention that the High Courts of Patna, Lahore and Allahabad have in (Firm) Mohanlal Ram Gopal v. (Firm) Udai Ram Sewa Ram, A.I.R (23) 1936 Pat 140 : (161 I.C 516), Krishan Lal Ram Lal v. Abdul Ghafur Khan, 17 Lah. 275 : (A.I.R (22) 1935 Lah. 893); Danmal Parshotamdas…(Plaintiff); v. Baburam Chhotelal…(Defendant).*, 58 ALL. 495 : (A.I.R (23) 1936 ALL. 3) respectively have taken the same view as in Ponnuchami Goundar v. Muthusami Goundar, I.L.R (1942) Mad. 355 : (A.I.R (29) 1942 Mad. 252). In the face of this overwhelming authority. I cannot feel persuaded to following She Calcutta decision. The suit must therefore, be dismissed and cannot be sent back.

9. In the view I take about the maintainability of the suit it is not necessary to decide the other points raised by the learned counsel for the applicant. The application for revision is accordingly allowed and the non applicant's suit is dismissed with costs in both the Courts, Counsel's fees Rs. 25, if certified.

10. Revision allowed.