J.M. SHETH

(1) Civil Revision Application No. 585 of 1968 is filed by the petitioners who were original defendants Nos. 1 to 5 in a Civil suit No. 3787 of 1966 filed by the plaintiff opponent M/s. Mohanraj Rajendrakumar for recovery of Rs. 1415.68 the price of goods sold by the latter to the former. It was the plaintiff opponents say that the deceased Kanjibhai Jethabhai was running a partnership firm under the name and style of M/s. B. Kanjibhai. It was a cloth business done at Bombay. The deceased owed to the opponent the said amount for the price of the goods sold etc. The defendants Nos. 2 to 5 i.e. the present petitioners were partners by holding out of the said firm M/s. B. Kanjibhai defendant No. 1 (petitioner No. 1) and hence they were liable for the suit amount. They had also claimed over and above the said amount Rs. 73.50 by way of interest and Rs. 25/as notice charges. In all the suit claim was for Rs. 1514.18.

(2) Civil Revision Application No. 586 of 1968 is filed by the same petitioners who were the original defendants Nos. 1 to 5 in a summary Suit No. 3786 of 1966 filed by the plaintiff opponent M/s. Chimanlal Nathumal for recovery of Rs. 1 480 in all. The allegations made by that opponent in that suit were also that the deceased Kanjibhai was running a partnership firm under the name and style of M/s. B. Kanjibhai which did cloth business at Bombay. The deceased Kanjibhai owed to the opponent Rs. 1 384 the price of the goods sold by the latter to the former. The defendants Nos. 2 to 5 were liable for the suit claim as they were partners by holding out of the said firm defendant No. 1 (petitioner No. 1). Rs. 70/were claimed by way of interest and Rs. 25/as notice charges. Both these suits were filed by different plaintiffs against the same petitioners in the Small Causes Court at Ahmedabad.

(3) In those suits the petitioners filed their appearance and sought for leave to defend. The petitioner No. 2 Bhanubhai had filed affidavit on his behalf as well as on behalf of the alleged firm (petitioner No.1). Other petitioners had also filed their affidavits and in those affidavits these petitioners had set out their defence. The two important grounds of defence were that the business run by the deceased Kanjibhai was a sole proprietary concern and it was not a partnership business. That Kanjibhai had died. The petitioners No. 2 to 5 were not the partners of the said firm and they never held out as partners of the said firm. The suit transaction was entered into with the agent of the plaintiff opponent at Bombay who had full authority to sell the goods of the plaintiff at Bombay. There was no necessity of condition of getting it confirmed with the plaintiff at Ahmedabad; the transaction having been entitled into at Bombay and delivery having been given at Bombay and money had to be paid at Bombay to Shankerlal the Ahmedabad Court has no jurisdiction to entertain and hear the suit. The heirs of the deceased amongst besides defendants Nos. 2 3 and 4 were other heirs including Induben. The suit is barred on account of non joinder of parties also. The defendant No. 5 who is the wife of defendant No. 2 is not the heir of the deceased Kanjibhai and the plaintiff had joined her as defendant No. 5 and hence there is a misjoinder of parties. Similar is the position in Civil Revision Application No. 585 of 1968.

(4) The plaintiff opponent had filed the affidavit in support of his summons for judgment. Practically it was on the basis of averments made in the plaint. After the defendants filed their affidavits setting their defence and praying for leave to defend the plaintiff filed a rejoinder affidavit setting out the contentions taken by the different defendants. Thereafter it refers to the prayer made by him in the plaint that the decree be passed against the property of Kanjibhai or the property that may have come into possession of the defendants and the decree be passed against defendants No. 2 to 5.

(5) In para 3 of that affidavit filed on behalf of the plaintiff it is averred that the order which Shankerlal had taken from the said firm was confirmed at Ahmedabad and hence the Court had jurisdiction to hear and entertain the suit. In the bill that had been sent a condition is mentioned that it is subject to Ahmedabad jurisdiction. As the contract was F. O. R. the delivery was given at Ahmedabad and money were to be paid at Ahmedabad and hence the Ahmedabad Court had jurisdiction. The letter Ex. 3/3 is written by defendant No. 2. Ex. 3/4 is a cheque drawn by Mrs. P. B. Desai that is the defendant No. 5 for B. Kanjibhai as proprietor. She is also the wife of the defendant No. 2. Ex. 3/5 is a telegram written by B. Kanjibhai. Ex. 3/6 is a letter written by Mr. H. K. Desai. All these documents are significant to indicate that that Ahmedabad Court had got jurisdiction. Except the defendant No. 5 other defendants are the heirs of Kanjibhai. As cheque was issued by the defendant No. 5 she had been joined as a party and she has written that cheque for M/s. B. Kanjibhai. She is therefore a partner by holding out.

(6) On taking into consideration these affidavits the learned trial Judge in his order granting a conditional leave to defend has observed as under :-

There are disputes about the jurisdiction and partnership and therefore there are triable issues; even though prohibitory order is issued to the third party not to pay amount to the defendant but there is no reply. Defendant or any of them therefore can be granted conditional leave to defend on depositing Rs. 1 514 18 with costs within 8 weeks and in that view of the matter the prohibitory order will stand vacated as soon as the deposit is made.

Similar is the position practically in another suit. As common questions arise in both these revision petitions they are being disposed of by a common judgment. It thus clearly appears from the orders passed by the learned trial Judge himself that the learned trial Judge on consideration of affidavits filed by the parties found that there were triable issues. Inspite of it the learned trial Judge has imposed a condition. Leave to defend has been granted on a condition to deposit the suit amount. The suits in question were Summary suits filed by the plaintiff opponent in Small Causes Court Ahmedabad.

(7) The material part of Rule 39 of the Ahmedabad Small Causes Court Rules runs as under :-

In a suit filed under Order 37 of the Code of Civil Procedure if the defendant enters an appearance or files a Vakalatnama the plaintiff shall on affidavit made by himself or by any other person who can swear to the facts of his own personal knowledge verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the action apply by summons for judgment returnable not less than 10 clear days from the date of service to the sitting Judge in Chamber for the amount claimed together with interest (if any) and costs. The Judge may thereupon unless the defendant by affidavit or declaration shall satisfy him that he has a good defence to the action on the merits or disclose such facts as may be deemed sufficient to entitle him to defend pass a decree for the plaintiff accordingly.

This is the material rule which has to be considered by us in these two revision petitions.

(8) It is significant to note that the Court has in both these suits while making an order of granting conditional leave to defend has observed that there are triable issues regarding jurisdiction of the Court and partnership. The factum of partnership is itself challenged. It is the say of the present petitioners (defendants) that the business run by Kanjibhai or M/s. B. Kanjibhai was the sole proprietary concern of the deceased Kanjibhai. It was not a partnership business. It is their further say that they had nothing to do with that business. They were not the partners. They have further contended that they have not held out as partners; even in the rejoinder affidavit by the plaintiff opponent so far as defendants Nos. 2 to 4 are concerned the plaintiff has not stated as to how the defendants Nos. 2 to 4 held out as partners. So far as defendant No. 5 is concerned it is stated that she had given a cheque wherein it was stated that it was given as a proprietor and it was given for M/s. B. Kanjibhai. It is not suggested that it was given as a partner. On consideration of the relevant affidavits it could not be gainsaid that there are triable issues arising in these two suits. The learned trial Judge also found it. Inspite of it he has imposed these conditions. It is significant to note that he has not found that he is not satisfied about a good defence to the action on the merits or the petitioners have not disclosed such facts as may be deemed sufficient to entitle them to defend. Except finding that there are triable issues he has not made any observations in supports of his order suggesting that the defence is not bona fide or the defence is sham or there are special justifiable circumstances for imposing a condition. It is a speaking order The reasons have been given in the order. The learned trial Judge observes that there are triable issues in regard to jurisdiction and partnership. He does not say that these are merely raisable issues. He thereafter only refers to the issue of a prohibitory order and non receipt of the reply from the garnishee. One has to consider whether in these circumstances this order imposing the condition can be sustained in law.

(9) It appears that rule 143 of the Ahmedabad City Civil Court Rules is not in pari materia with the Rule 39 of the Ahmedabad Small Causes Court Rules. So far as these two revision petitions are concerned they can be disposed of without entering into a general question whether there would be any difference in the powers of the Courts i.e. the small Causes Courts and the City Civil Court in regard to imposing of conditions in view of slightly different wordings of the two rules.

(10) In the case of Saraswatiben v. Kantilal A.I.R. 1964 Gujarat 81 (V G. L. R. 152) Divan J. has observed as under :- Where in a summary suit on a negotiable instrument it was clear on a perusal of the affidavit in reply filed by the defendant that a triable issue did arise on the averments set out in it but the plaintiff failed to file any affidavit in rejoinder controverting the statements of the defendant contained in the affidavit in reply.