GENDALAL Vs. NANALAL
LAWS(MPH)-1955-1-3
HIGH COURT OF MADHYA PRADESH
Decided on January 27,1955

GENDALAL Appellant
VERSUS
NANALAL Respondents

JUDGEMENT

Dixit, J. - (1.) THE circumstances giving rise to this Special Appea1 directed against a decision of Single Judge of this Court are that Gendalal, Jaidayal and shankerlal instituted a suit in the Court of Munsiff, Dhar, for redemption of certain pledged ornaments. In the body of the plaint the Plaintiffs described themselves as owners of the shop 'Surajmal Mamraj'. The Defendant while denying the Plaintiffs' claim on merits also pleaded that the business carried on by the Plaintiffs was a joint family business and that as all the members of the family had not been included in the suit as Plaintiffs, the suit was not maintainable. The learned Munsiff first held that the other members of the joint family were necessary parties and ought to have been impleaded. But in the final judgment he came to the conclusion that the non -joinder of the other members of the family was not fatal to the suit and passed a decree directing the Defendant to return the pledged ornaments after receiving from the Plaintiffs Rs. 678. The Plaintiffs then appealed to the Court of the District Judge, Dhar. The Defendant also filed a cross -appeal. The learned District Judge modified the decision of the trial Court directing the Defendant to pay Rs. 2 only to the Plaintiffs. The Plaintiffs then filed a second appeal to this Court. The Defendant did not file any cross -objections. Rege J., who heard the second appeal took the view that the transaction in respect of which the Plaintiffs sued related to joint family business; that besides the Plaintiffs there were other major coparceners and as they had not joined in the suit as Plaintiffs, the suit was not even maintainable and that, therefore, the decision of the District Judge which had become final by reason of the Defendant not appealing could not be disturbed. In this view of the matter the learned Single Judge did not consider the grounds taken by the Plaintiffs in their second appeal. The Plaintiffs have now filed this special appeal with the leave of the learned Single Judge.
(2.) MR . Bharucha, learned Counsel for the Appellants, first urged that as Gendalal, Jaidayal and shankarlal were the managers of the joint family business, they were entitled to sue on behalf of the members of the joint family and that it was not necessary to make other members of the family parties to the suit. In my opinion this contention must be given effect to. From the satement of Shankarlal it is clear that Shankarlal, Gendalal and Jaidayal were the managers of joint family business. He made the statement nqdku dk uke lwjtey ekejkt gS] vkSj nqdku ds dkfjUns ge rhuksa eqíbZ;ku gSa A This statement of Shankarlal has not been rebutted by the Defendant. Learned Counsel appearing for the Defendant before us did not say that the present Plaintiffs were not the persons who managed the joint family business. If then the Plaintiffs were, as the evidence shows, the managers of the joint family business they could sue in their own names on behalf of the business. The learned Counsel for the Respondent was not able to cite any authority to support the suggestion that a 'Karta' of a joint family business cannot sue alone in his own name on behalf of the business and that all the members of the joint family must join in the suit as Plaintiffs. It was conceded by the learned Counsel for the Respondent that the suit would have been in proper form if the Plaintiffs had described themselves as managers of joint family business. But it was said that in the present case they had sued in their own names and not even stated in the plaint that they were members of a joint Hindu family. The objection is not of a substantial character. The suit being one relating to joint family business and the Plaintiffs being the accredited managers of the business, the omission in the plaint of their description as managers of the joint Hindu family business is merely a case of mis -description which can be corrected at any stage of the suit. The omission of the Plaintiffs to state in the plaint that they were members of the joint Hindu family and the managers of the joint family business does not in my opinion affect the maintainability of the suit. The learned Single Judge was therefore, not right in holding that the Plaintiffs' suit ought to have been dismissed because of the non -joinder of other coparceners as Plaintiffs. Having reached that conclusion, it is not necessary for me to consider the other contention advanced by the learned Counsel for the Appellants namely that as the Respondents did not file any appeal or cross -objections in this Court, he could not urge that it was necessary for other coparceners to join in the suit as Plaintiffs and that their non -joinder was fatal to the suit. Were it, however, necessary for me to express any opinion on the point. I would say that the contention is sufficiently answered by the decision of a Full Bench of the Madras High Court in -'Venkata Rao v. Satyanarayanamurty' : AIR 1943 Mad 698 (FB) (A) on which the learned Single Judge relied, and with which I respectfully agree. Order 41, Rule 22, Code of Civil Procedure permits a Respondent to support the decree appealed from on any of the grounds decided against him in the Court below. When a Respondent accepting the decision of the Court below, resists the Appellant's further claim by saying that the decree of the Court below should not be disturbed as it erred in favour of the Appellant the Respondent really supports the decree in his favour to the extent to which the Court, below had disallowed the claim of the Appellant.
(3.) FOR the above reasons the decision of the learned Single Judge must be set aside and Civil Second Appeal No. 62 of 1949 preferred by the Plaintiffs must be heard by a Single Judge on the grounds raised in the appeal. There would be no border as to costs in this appeal.;


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