- (1.)THIS is a defendant's appeal under O. 43 R. 1 (u) C. P. C. against the appellate order dated 20. 5. 1959 of the Civil Judge (Senior) No. 5 Jodhpur setting aside the decree of the Munsif Jodhpur and remanding the case for decision on other issues. 2. The facts relevant and necessary for the disposal of this appeal may be stated as follows: Laxmi Corporation Jodhpur, which according to the plaintiff, was the concern of one Kanmal alone and which according to the defendants, was a partnership firm between Kanmal Parakh and one Kr. Mohan Singh, obtained a contract from the Stewards of the turf club, Ratanand, Jodhpur for running shops and stalls for a period of one year from 1. 11. 1946 to 31. 10. 1947. The contractors sublet to defendants Bankatlal and Asaram, proprietors of Modern Fancy Stores, Mirchi Bazar, Jodhpur a part of the contract vide a deed executed on 22. 10. 1946 and signed by Kanmal on behalf of Laxmi Corporation and Bankatlal ana Asaram the defendants. It is unnecessary to set-forth the details of the terms of the so contract for the purposes of this appeal. It will be sufficient to state that the Laxmi Corp -ration claimed a right to recover from defendants No. 2 & 3 an amount of Rs. 1,704/-besides interest under the sub contract. On 4. 4. 1949 Kanmal defendant No. 3 purporting to be the sole proprietor of Laxmi Corporation made an assignment in favour of the plaintiff appellant Deoraj, of some debts including the one out-standing against the defendants. Deoraj thereupon filed a suit against Bankatlal and Asharam and also impleaded Kanmal. A prayer for decree against the two defendants was made and in the alternative it was prayed that a decree against Kanmal might be passed. 4. Kanmal admitted the allegations of the plaint although pleaded that he was not liable to pay the amount and that no decree should be passed against him. Bankatlal ana Asharam traversed the allegations of the plaintiff and inter-alia pleaded that Laxmi Corporation was a partnership firm and that Kr. Mohan Singh was also a partner of that firm, Kanmal alone was not competent to assign the debt in favour of the plaintiff. It was also pleaded that the firm Laxmi Corporation was not a registered one and, therefore, sec. 69 barred one of the partners to file a suit and should consequently bar a transferee of the partnership firm from filing the suit. The plaintiff, in his replication did not admit the allegations of the defendant with regard to Kr. Mohan Singh being the partner of the Laxmi Corporation. He adhered to his stand that Laxmi Corporation was not a partnership firm and that Kanmal alone was the sole proprietor of the business conducted in the name of Laxmi Corporation. Kanmal was also examined under O. 10 and he denied that Laxmi Corporation was a partnership farm and that Kr. Mohan Singh was a partner. A number of issues were framed but at present we are concerned only with issue no. 5 which reads as follows:
(2.)D;k y{eh Dksikszjs'ku esa egkjkt eksguflag oyn jruflagth Hkkxhnkj Fks\ o jftlvmz Qez u gksus ls o csotg nkos esa Hkh lc Hkkxhnkjku Ds 'kjhD u gksus ls nkok ukDkfcy is'k'kqn gs** The DefenDants in their eviDence examineD Kr. Mohan Singh who proDuceD a partnership DeeD executeD between him anD Kanmal. He also proDuceD certain letters sent to nun by Kanmal to prove that Laxmi Corporation was a partnership firm, There was no rebuttal eviDence on this point. The trial Court helD that the Laxmi Corporation was a partnership firm anD Kr. Mohan Singh was one of the partners. The trial Court further consiDereD the case then pleaDeD before it that even though the Laxmi Corporation was a partnership farm Kanmal alone as a partner shoulD be treateD as competent to assign the Debt of a DissolveD partnership for the purposes of winDing up the affairs of the partnership anD DeciDeD the point against the plaintiff. In the result, the trial Court DismisseD the plaintiff's suit against DefenDants no. 1 & 2 anD passeD a Decree against Kanmal. Kanmal remaineD satisfieD with the Decree anD DiD not file any appeal. The plaintiff fileD an appeal against the orDer exonerating the two DefenDants Asharam anD Bankatlal. The appeal against Bankatlal was however rejecteD unDer O. 41 R. 18 C. P. C. anD the rejection was maintaineD on application unDer rule 19. The plaintiff's main content on DiscloseD in the grounDs of appeal was that the partnership having been DissolveD Kanmal alone was competent to assign the Debt for the purposes of winDing up the affairs of the partnership. As against this case set up by the plaintiff the Sen or Civil JuDge maDe out an entirely Different case for the plaintiff. The Senior Civil JuDge helD that at the time of assignment the partnership was subsisting anD Kanmal as a partner of a subsisting partnership was competent to make the assignment. He accorDingly accepteD the appeal anD remanDeD the case for Decision on other issues. The orDer of remanD operateD only so far as DefenDant Asharam was concerneD. Asharam has fileD the present appeal against the orDer of remanD. 5. At the out-set Mr. Kishore Singh raiseD a preliminary objection that the orDer of remanD DiD not fall unDer O. 41 R. 23 C. P. C. anD was not appealable. The basis of the argument was that the suit was DecreeD against Kanmal anD, therefore, it coulD not be saiD that the case was DeciDeD on a preliminary point. It however appears from the juDgment of the Civil JuDge that he treateD the Decision of the trial Court as a Decision on a preliminary point anD remanDeD the case unDer O. 41 R. 23. He also DirecteD the refunD of the court-fee. Obviously the orDer has been treateD by the Civil JuDge as one falling unDer O. 41 R. 23 C. P. C. In these circumstances even though the orDer may not have been properly passeD unDer O. 41 R. 23 yet it is appealable in view of Dictum laiD Down in Ratanraj Vs. Kripashanker (1 ). The preliminary objection has no force anD is rejecteD. 6. Arguing the appeal on merits, it was strongly contenDeD by Mr. ChanDa that the appellate court ought not to have maDe a new case for the plaintiff. The Decision of the case shoulD have been baseD on the case as set up by the plaintiff. He further urgeD that the eviDence which was leD on issues on which the parties actually went on to trial shoulD not be maDe the founDation for Decision on another anD Different issue which was not present to the minD of the parties anD on which they haD no opportunity to aDDuce eviDence. In support of his contention a number of authorities were citeD on behalf of the appellant. It will be not necessary to Discuss all these authorities but it will be as well to notice a few of therm As early as the year 1866 LorD Westbury Delivering a juDgment of the Privy Council in EshenchunDer Singh anD Shamachurn Bhutto Vs. KoilaschunDer Singh (5) thought it proper to point out the absolute necessity that the Determinations in a cause shoulD be founDeD upon a case either to be founD in the pleaDings or involveD in or consistent with the case thereby maDe. His LorDship further observeD as follows: It is impossible to concluDe parties by inferences of fact, which are not only inconsistent with the allegations in the plaint, constituting the case the DefenDants haD to meet, but which were in reality contraDictory to the case maDe by the plaintiff. " In SiDDik MohammaD Shal Vs. Mst. Saran (3) the Privy Council approveD the finDing of the JuDicial Commissioners that "no amount of eviDence can be lookeD into upon a plea which was never put forwarD. " The maxim, secunDum allegata at proData, generally recogniseD anD applieD inDeeD lays Down a very salutary principle of practice that a party can only succeeD accorDing to what was allegeD anD proveD anD that he cannot, be permitteD to succeeD on a case not so set up by him. The courts shoulD never be oblivious of the cases set up by the parties anD shoulD not orDinarily unDertake roaming enquiries anD take Decisions on points on which the parties affecteD haD no notice or opportunity to meet. I shoulD not be taken to suggest that there shoulD be a complete corresponDence between pleaDings anD proof anD that every variation; between them shoulD be emphasiseD anD consiDereD fatal irrespective of prejuDice anD surprise to the parties. It may however be safely laiD Down that a party cannot be granteD relief on a case (a) which is contraDictory to the case initially set up, (b) when there is no founDation of the case in the pleaDings anD the other party haD no opportunity to meet anD the new case was a surprise to him. 7. Examining the case in the light of the principle enunciateD above, I may state that the plaintiff came forwarD anD consistently aDhereD to the case that Laxmi Corporation was not a partnership firm but was a sole concern of Kanmal. In making the assignment also Kanmal DescribeD himself as the sole proprietor. Even when the DefenDant fileD a written-statement alleging that Laxmi Corporation was a partnership firm the partners being Kanmal anD Kr. Mohan Singh the plaintiff DiD not choose to aDmit it anD set-up an alternative case. In the replication the plaintiff DenieD the fact of partnership. Kanmal when examaineD unDer O. 10 C. P. C. also DenieD the partnership. At the time of arguments the plaintiff took a stanD that even if there was a partnership between Kanmal anD Kr. Mohansingh that partnership shoulD be DeemeD to have been DissolveD anD Kanmal shoulD be treateD as competent to assign the partnership Debt to winD up the affairs of the partnership. Even at that stage it was not the plaintiff's case that at the time of assignment partnership was subsisting anD Kanmal haD the right to assign the Debt. After the Dismissal of the suit by the trial court even in the grounDs of appeal only the above stanD was repeateD. In these circumstances, it is regrettable that the Senior Civil JuDge shoulD have completely brusheD asiDe the case set-up by the plaintiff anD shoulD, have founD that on the Date of the assignment there was a subsisting partnership anD that Kanmal alone as a working partner was competent to make an assignment of the Debt in favour of the plaintiff. That being so it is Difficult to maintain the juDgment of the Senior Civil JuDge. Mr. Kishore Singh argueD that on the pleaDings of the DefenDant anD on certain portions of the statement of Kr. Mohan Singh the competence of Kanmal to assign the Debt can be easily spelleD out. It has been stateD earlier that the courts cannot go beyonD the case set up by the plaintiff. The eviDence anD finDings which fall out of the scope of the pleaDings shoulD be ignoreD. The DefenDant examineD Kr. Mohan Singh only to rebut the plaintiff's case that Kanmal alone was the proprietor of Laxmi Corporation. The question even if Laxmi Corporation was a partnership firm still Kanmal woulD be competent to assign the Debt, was not the subject matter of pleaDing or issue anD any casual statement of Kr. Mohan Singh cannot be maDe the founDation of a finDing that Kanmal alone was competent to assign the Debt. In these circumstances, I have no alternative but to reverse the orDer of the Senior Civil JuDge which is not sustainable on the materials on recorD. The case will go back to the Senior Civil JuDge No. 2 JoDhpur for DeciDing the appeal on merits after consiDering the arguments on the various points arising in the case. The costs shall abiDe the result. .
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