- (1.) THIS appeal has been placed before us because the learned Single Judge was of the opinion that it should be decided by a larger Bench.
(2.) IN order to appreciate the point involved the facts may be shortly stated. A sum of Rs. 1850/- was due from the appellant firm to firm known as Sukhi Ram goverdhan Das. On 27-6-1949 the aforesaid firm transferred the debt in favour of the plaintiff-firm Prite Shah-Sant Ram. On 28-6-1949 Prite Shah Sant Ram filed a suit for recovery of Rs. 1,062/12/- as principal and Rs. 215/-as interest after adjusting a sum of Rs. 787/4/-which was said to be due from the plaintiff-firm to the defendant-firm. The suit was resisted on various grounds and out of the issues that were framed issue No. 1 alone is material for the purposes of deciding the appeal. It is as follows: is the plaintiff-firm a registered one? If not, what is its effect? it may be mentioned that the learned Single Judge has decided after treating certain findings given on other issues as binding that if the suit is to be decreed it will have to be decreed in the sum of Hs. 1. 277/12/- and the only question, therefore, is whether the decision of the court below on issue No. I was correct or erroneous. The trial Court while-deciding that issue relied on Exhibit P. 3 which was a copy of the entries in the Register of Firms: showing that Messrs. Prite shah-Sant Ram was a registered firm. That Court was of the view that although the plaintiff had stated as P. W. 4 that the firm had been dissolved in 1946, but for the purposes of the provisions contained in Section 69 of the Indian Partnership Act the registration would continue and so the suit was maintainable. Before the learned Additional District judge in appeal it was contended on behalf of the defendants that the firm Prite shat-Sant Ram had been registered in 1933 and it was subsequently dissolved on the death of one of its partners Sant Ram in June 1946; the transfer of the debt was made after the dissolution of the firm and that when the firm had been originally registered in 1933 Madan Mohan was not one of its-partners. The learned Additional District Judge came to the conclusion that Madan Mohan had become a partner before the dissolution of the firm. It was also contended that the constitution of the firm as it existed at the time of dissolution was not the same as it was at the time of its registration. The learned Additional District Judge was of the view that these objections were never raised in the pleadings and he allowed additional evidence to be ad-duced on the point. Exhibit G. 1, which was a certified copy of the form in which the names of the partners of the firm Prite Shah-Sant Ram were given, was allowed to be produced as additional evidence. After examining Exhibit C. 1 and Exhibit P. 3 he came to the conclusion that the partners at the time of dissolution were Sant Ram, Khushi ram, Sukhi Ram, Goverdhan Das and Madan Mohan, and, therefore, the conclusion of the trial Court that the firm was duly registered and was competent to bring the suit was correct. As regards the objection that the plaintiff-firm had purchased the debt after its dissolution, it was observed by the learned Additional District Judge that no objection had been raised on that point at any previous stage. He held that the firm at the time of assignment of the debt still remained a registered firm for the purposes of the Partnership Act. When the matter came up before the learned single Judge on second appeal he was of the view that it had not been satisfactorily dealt with by the learned Additional District Judge and that the point involved was difficult and he was doubtful how far the decision in Pratapchand ramchand and Co. v. Jahangirji Bomanji, AIR 1940 Bom 257, which was followed in Tapendra Chunder v. Jogendra Chun-der, AIR 1942 Cal 76, would apply to the present case.
(3.) MR. Nand Lal Salooja, who appears on behalf of the appellant, has invited our attention to the pleadings of the parlies relevant for deciding issue No. 1. In the plaint it was stated that the plaintiff-firm was a partnership firm and was registered under the Partnership Act. Khushi Ram was one of the partners and the firm was doing the business of commission agents and of sale and purchase of goods (cloth ). In the written statement the defendants did not admit para 1 of the plaint and denied that the plaintiff-firm was a registered firm or that Khushi Ram was a partner thereof. A replication was filed in which it was reiterated that the plaintiff-firm was registered and it was added that in fact the firm had been dissolved in june 1946 and did not require registration under the law. Thus, the only issue that was framed was whether the plaintiff-firm was registered and if it was not registered, what would be its effect. Sukhi Ram who appeared as P. W. 1 has stated that Khushi Ram, Goverdhan Das, sukhi Ram, Sant Ram are the partners of firm Prite Shah-Sant Ram. Khushi Ram who appeared as P. W, 4 stated in examination-in-chief that Khushi Ram, Sukhi ram, Goverdhan Das, Sant Ram and Madan Mohan were the partners of the firm prite Shah-Sant Ram and that the firm was dissolved on the death of Sant Ram in 1946 and that it had been finally wound up recently after a suit had been filed. It is obvious that the statements of the aforesaid two witnesses did not show, as has been contended by Mr. Salooja, that the previous firm Prite Shah-Sant Ram had been dissolved and that a new firm had come into existence of the same name. There can be no doubt that when P. W. 1 used the present tense with regard to the partners of the firm Prite Shah Sant Ram he was doing so under a misapprehension as he mentioned Sant Ram also when admittedly Sant Ram had died in 1946. The case which Mr. Salooja has tried to make out is that although the original firm prite Shah-Sant Ram was a registered firm, it was dissolved on the death of Sant rani, one of its partners in 1946, and a new firm of the same name was formed by some of the erstwhile partners of the original firm. This is entirely a new case which is being sought to be made out as the pleadings of the parties do not warrant any facts having been alleged according to which the existence of a new firm can be considered to have ever been pleaded or put into issue. It is well settled that a party cannot be allowed to travel beyond the pleadings and make out a totally new case in appeal. It is not, therefore, possible to entertain the aforesaid contention which has been raised on behalf of the appellant,;