DEOLAL Vs. TULARAM RAMSUKH

JUDGEMENT

(1.) KINKHEDE , A.J.C. 1. This revision raises three questions for determination under the following circumstances : One Kisan Lal Govindlal was the proprietor of the firm known as "Kisanlal Govindlal" He died more than three years prior to the suit which was instituted on 28th July 1927. On his death his widow, Mt. Radhabai, became his heiress. She carried on or rather continued her husband's cloth business under the old name and style "Kisanlal Govindlal", after her husband's death. Deolal and Jagannath, sons of Laxman Das, who are Mt. Badhabai's brothers looked after the business. Defendant 1, Deolal, is admittedly the servant and agent of Mt. Radhabai. Defendant 2, Jagannath, however, is not even the servant of the shop. Plaintiff supplied goods of the total value of Rs. 4,584-10-0 on the requisition of defendants 1 and 2 in the name of the firm. The plaintiff admitted repayments to the extent of Rs. 4,415 only. Hence the suit for the difference of Rs. 169-10-0 and interest. The total claim is for Rs. 395-13-3 inclusive of 3 annas 6 pies on account of costs of notice of demand.

(2.) ORIGINALLY , the description of the defendants as given in the cause title of the suit showed that defendants 1 and 2 were the only persons impleaded. The case proceeded ex parte against defendant 2. Defendant 1 alone appeared and stated that neither of the defendants 1 and 2 was the owner of the firm known-as "Kisanlal Govindlal" and that plaintiff could not sue them, and further-that Mt. Radhabai was the malik of the firm and, therefore, the proper person to be sued was she and not they. He, therefore, pressed for being discharged from the suit. The Small Cause Court Judge gave plaintiff an opportunity to as certain facts till'4th December 1926, or that day plaintiff made an application stating that defendant 3, Radhabai, was the heir of the original debtor Kisanlal Govindlal and that the names of defendants 1 and 2 who were wrongly impleaded should be allowed to be struck out and that of defendant 3 added. The following order was passed on 4th December 1926: Parties as before. The plaintiff's agent puts-in an application for impleading Radhabai as the malik of the firm. The application for amendment will be considered. Case for 26th-January 1927. M.M. Golwalkar. Later on, I direct that Radhabai be impleaded as defendant 3 in this case. I would not discharge defendants 1 and 2 for the present. M.M. Golwalkar.

(3.) AFTER hearing evidence which consisted of the testimony of the absent defendant 2 as D.W. No. 1, the Court formulated the necessary points for determination and recorded its decisions thereon. The Judge came to the conclusion that defendant 3 was the sole malik of the firm styled "Kisanlal Govindlal" and that defendants 1 and 2 were her brothers. That the goods were purchased by them for defendant 3. That plaintiff should have brought the suit against defendant 3 or in the name of her shop. However, it must be held that the plaintiff Brought the suit against defendants 1 and 2 under a bona fide mistake wrongly treating them as the legal representatives of the firm styled "Kisanlal Govindlal." That such an error could be corrected even after limitation. That there has been merely a substitution of the real person for the wrong persons named as defendants and the whale suit is within time. That defendants 1 and 2 are not necessary parties and they will be discharged from liability.