SARJOO PROSAD, C. J. - (1.) THIS is an application for revision of the judgment and decree dated 20th April, 1959 of Shri B. K. D. Badgel, Civil Judge, Udaipur. By his judgment in question the learned Judge allowed the appeal and dismissed the suit on the preliminary ground that the suit was bad for non-joinder of a necessary party. He refused to adjudicate upon the other material issues in the case which had been determined by the trial court.
(2.) AT the outset I should like to observe that the procedure followed by the learned Judge in refraining from giving his own findings on the other relevant questions raised in the case is against well established practice and principle. A subordinate court of appeal, whose decision is subject to appeal before this Court, should be well advised to come to specific findings on all the important issues involved in the case, with a view to avoid the contingency of a remand by this Court. The omission to do so creates a good deal of difficulty and in case the decision on the preliminary point on which it is based is reversed, this Court is placed in the embarrassing position of making either an unnecessary remand or of being compelled to decide for itself on the evidence the other issues which fall for consideration in the case. Serious exception therefore has to be taken to any such procedure being adopted by the subordinate courts in disposing of appeals. The proper course for the learned Judge should have been not only to determine the preliminary question but also to give his finding upon the other material issues involved and then dispose of the appeal. With these prefatory observations, I would now turn to deal with the material facts giving rise to this application. The plaintiff, who is the petitioner here, instituted a suit for recovery of Rs. 526. nonp on the basis of a document said to have been executed in plaintiff's favour on 15th September, 1955. The document was for a sum of Rs. 1,100/-, but it was alleged by the plaintiff that on different dates a sum of Rs. 6oo/- was paid while only Rs. 500/-remained due. He accordingly claimed to recover this principal with interest. It was also averred that the defendants were prepared to pay the amount due but wanted that according to earlier practice an entry of the payment should be made at the back of the document; but when they learnt that the document had been lost they refused to make the payment, although the plaintiff was prepared to grant a receipt in discharge of the amount due. The defendants admitted the loan of Rs. 1,100/- on the basis of the document in question and also the payment of Rs6oo/- as pleaded by the plaintiff; but their case was that they had further made a payment of Rs. 450/-which was endorsed on the back of the document, and only a sum of Rs. 50/- was due, as the amount had to be adjusted towards the price of certain articles which had been purchased by the plaintiff from the defendants' shop. According to the defendants, the amount due as such from the plaintiff on account of those purchases was Rs. 70/12/6. They further rook the plea that the transaction by the defendant was entered into with the plaintiff and one Om Prakash and since this suit had been instituted only by the plaintiff, the suit was fit to be dismissed. The learned Munsif decided all the material issues in favour of the plaintiff and decreed the suit with costs. On appeal, the learned Civil Judge has held that Om Prakash was a necessary party to the suit and since he has not been impleaded, the suit must fall. He, accordingly dismissed the suit. The petitioner urged that the learned Judge has acted illegally and with material irregularity in dismissing the suit on the ground of non-joinder of Om Prakash who was not a necessary party to the suit at all. In the written statement, it was nowhere stated that the document on the basis of which the loan had been advanced was executed both in favour of the plaintiff and her grandsoon Om Prakash, who admittedly lives jointly ' with the plaintiff. At every stage it was admitted that the money in fact had been paid by the plaintiff Radha Bai. In the last paragraph of the written statement there is of course an averment to the effect that Om Prakash was a necessary party, but it was nowhere explained in the pleading as to how for purposes of this suit his presence was necessary. The learned Judge in dealing with the matter has entirely lost sight of these facts. He has not even referred to the admission of the defendant Bhawanishanker himself that the entire affair and management of the house-hold was looked after by Mst. Radha Bai herself and Om Prakash only acted on the direction of Mst. Radha Bai. At the time of the execution of the document Om Prakash was only about 17 or 18 years old and was a student. The defendant also admitted that he got the money from the plaintiff Mst. Radha Bai herself. It is obvious, therefore, that Om Prakash was a minor member of the family of which the natural guardian appears to be the plaintiff Radha Bai. Even assuming that the name of Om Prakash was mentioned in the document, it was not necessary to in plead him,when Mst. Radha Bai herself was a party to the suit; as in these circumstances, the clear presumption would be that Radha Bai was acting both in her personal capacity as also as a natural guardian of the minor. The learned Civil Judge, therefore, manifestly fell into error in assuming that Om Prakash had to be impleaded and plaintiff's failure to implead him was fatal to the suit. Accordingly, the preliminary issue has been erroneously decided by the learned Judge. The plaintiff alone, in the circumstances, could institute the suit, she having advanced the money and she being also the head and karta of the family, as it appears from the admissions of the defendant himself. That being so, the decision of the learned Civil Judge cannot be sustained. The question then arises whether I should send back the case for a decision on the other issue as to the| alleged plea of payment or decide the matter here? The suit, to which this application relates, is an old one and, in the circumstances, 1 am reluctant to have the litigation prolonged' any further. I have, therefore, with the assistance of the learned counsel for the parties examined the relevant evidence in the case. The onus to prove the plea of payment was upon the defendant and there appears to be apparent discrepancy in the evidence of Bhawanishanker and his witnesses Rodilal and Parastam on this point. Rodilal does not appear to support the evidence of Bhawani Shanker in its entirety. On the plea of payment, Bhawani Shanker's evidence that Om Prakash was also present at the time of payment is not corroborated by any of the other witnesses. On the other hand, there is the reliable evidence of Parasram (PW 3), a lawyer who stated that the defendants admitted the amount claimed being due to the plaintiff, but that they objected to payment without the production of the document itself on which the endorsement of payment was to be made. Mr. Desai on behalf of the defendants has referred to the earliest notice sent by the plaintiff to the defendants demanding the money. He submits that in that notice there is no allegation that the defendant had gone to the plaintiff to pay the money, but when the stamped document was not available he refused to pay the same. The omission to mention these facts in the notice, in my opinion, is not material. It was not necessary to mention all these facts there. Having regard to all these circumstances, the decision of the trial court appears to be well-founded. I, accordingly, allow this application, set aside the decision of the learned Civil Judge and restore that of the trial court and decree the suit with costs throughout. . ;