- (1.) S. U. Khan, J. Heard learned Counsel for the parties.
(2.) BOTH the appeals have been filed by the plaintiff against the judgments and decrees dated 29-8-1977 passed by the District Judge, Banda in Original Suit No. 7 of 1973 (giving rise to First Appeal No. 263 of 1978) and Original Suit No. 8 of 1977 (giving rise to First Appeal No. 264 of 1978 ). In both the suits appellant was plaintiff and the respondent was defendant. Appellant had filed 3rd suit also against the respondent being Original Suit No. 10 of 1973, which was also decided by same Judge i. e. District Judge, Banda on the same date i. e. 29-8-1977. Against the said judgment and decree the appellant filed First Appeal No 230 of 1978 which was allowed by this Court in part on 20-3-1995, Photostat copy of the certified copy of the said judgment has been supplied. In all the three suits it was pleaded that M/s. Khandelwal Construction Company Banda, a partnership firm, was granted contract by the Executive Engineer, Irrigation Division, Banda for construction of stilling Basin Lot No. 1 at Chandrawal Dam (O. S. No. 8 of 1973) and construction of Central portion of the crest and piers at Chandrawal Dam (O. S. No. 7 of 1973) and for some other work relating to the said Dam (O. S. No. 10 of 1973 ). The contract was entered into with the State of U. P. through the Executive Engineer. The job was to be completed within specified time. However it was not completed due to the reason that the defendant did not provide vacant site for digging and cutting, that defendant illegally terminated the contract on the ground that the plaintiff had not completed the work within the stipulated time. It was also pleaded that the firm M/s. Khandelwal construction Company Banda, of which the plaintiff was partner, was later on dissolved and the entire assets and liabilities as well as claim of the Firm were given to the plaintiff. Both the suits were decreed only for refund of security. Original Suit No. 8 of 1973 was also decreed for Rs. 500/- as payment for bending 20 metric tons of steel.
(3.) THE first point argued in these appeals is regarding the maintainability of the suit as it was admitted to the plaintiff that the Firm was not registered. Issue No. 1 and 10 in Original Suit No. 7 of 1973 related to the said aspect of the matter. This point was decided in favour of the plaintiff and against the defendant. How-ever this point was not involved in Original Suit No. 8 of 1973. Learned Standing Counsel appearing for defendant-respondent urged that in view of Order 41 Rule33, C. P. C. he can raise this point even though no cross-objections have been filed. I have heard learned Counsel for the parties on this point and proceed to decide the same as the first point.;