Mohanlal Burabhai vs Ashok Tyres and Others

Rajesh H. Shukla, J.—The present Second Appeal has been filed posing the following substantial question of law while issuing notice of the court.

Whether it was legal for the first appellate court to set aside a decree against Defendant No. 1 in an appeal filed by Defendant No. 2?

The facts of the case, briefly summarized, are that Civil Suit No. 195/77 was filed by Respondent No. 1-Ashok Tyres against the present Appellant, who was original Defendant No. 4 and Respondent Nos. 2 to 4. There was a partnership firm in the name and style of Kanji Vashram & Co. which was Defendant No. 1 in the said suit and Defendant Nos. 2 to 4 were the partners. The present Appellant, original Defendant No. 4, is said to have purchased the tyres and tubes worth Rs. 3,950/-for the truck bearing No. GTE 7809 and as the amount was not paid, notice was issued and subsequently the suit was filed for recovery of the amount which came to be allowed by the trial court vide the judgment and order dated 28.2.1979. The suit was decreed against all the Defendants. Regular Civil Appeal No. 23/79 came to be filed by Respondent No. 3, original Defendant No. 2, challenging the impugned judgment and order. The lower appellate court has partly allowed the appeal and modified the judgment and decree against Respondent Nos. 1 to 3 and confirmed the judgment and decree qua original Defendant No. 4, the Appellant herein, vide its judgment and order dated 23.1.1981. It is this judgment and order which is challenged by way of the present Second Appeal posing the aforesaid substantial question of law.

Heard learned advocate Ms. Shaili Shah for learned advocate Mr. P.M. Thakkar for the Appellant. It was submitted that the lower appellate court has committed an error in modifying the decree and it was not legally permissible to set aside the decree against the firm as the purchase was for the firm and all the partners were liable jointly and severally. She therefore strenuously submitted that the judgment of the lower appellate court modifying the judgment and decree is bad and illegal and therefore as it has misdirected and failed to appreciate the material and evidence on record, the present Second Appeal may be allowed. She has further submitted that in fact the appeal was filed by original Defendant No. 2 only and therefore the modification making the present Appellant liable would not be justified as it would be bad and illegal.

Though the submissions have been made, on a closer scrutiny of the evidence, it is evident that the purchases were made by the present Appellant, original Defendant No. 4, and therefore he has been made liable to pay. Whether the purchase of tyres and tubes was for the firm is not established and in any case the person who has been making the purcahse would be liable to pay. The conduct of the partners inter-se would bind the partners, but it will not have any bearing for the third parties as the purchase was not in the name of the firm, but it was in his individual capacity. Therefore, no question of law, much less any substantial question of law, can be said to have been involved as is sought to be canvassed.

Another aspect of the submission that the appeal was filed against the judgment of the trial court decreeing the suit against all the Defendants by only Defendant No. 2 and the present Appellant has not even preferred the appeal and therefore the lower appellate court has exceeded the jurisdiction in modifying the decree qua some of the Defendants, except Defendant No. 4, is also misconceived inasmuch as the decree of the trial court was against all the Defendants. However, it has been modified and the appeal has been allowed partly to that extent and therefore there is no jurisdictional error as sought to be canvassed. In any case, considering the smallness of the amount also, it does not require any further elaboration. Further, the scope of exercise of discretion u/s 100 of the CPC is also very limited.

Therefore, the present Second Appeal cannot be entertained and deserves to be dismissed and accordingly stands dismissed. No order as to costs.