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Abdul Qaddoos Khan v. Abdul Mannon Khan - SECOND APPEAL No. 241 of 1976 [2006] RD-AH 14741 (30 August 2006)


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Court No. 30.

Second Appeal No. 241 of1976.

Abdul Quddoos Khan     Vs.   Abdul Mannaon Khan

Hon. Sunil Ambwani, J.

The cause shown is sufficient.  The order dated 12.7.2006 dismissing the appeal for want of prosecution is recalled.  The appeal is restored to its original number and is heard.

Heard Sri Ramesh Chandra Kandpal, learned counsel for the appellant.

The second appeal  arises out of  O.S. No. 610 of 1972 for recovery of Rs. 2500/- advanced by the plaintiff to the defendant.  The contract of loan and the payment of the amount to the defendant was proved.  The suit, however, was dismissed by the trial court on 1.4.1975 on the ground that Col.  Khashnood and not the plaintiff.  Abdul Mannan Khan ha paid the amount by a  cheque drawn by him on the defendant,  and had handed over the same to the defendant.   Col, Khashnood Ahmad Khan was a necessary party. In his absence the suit could not be decreed.

The appellate Court in Civil Appeal No. 25 of 1975confirmed the findings of  the contract and payment of loan.  It, however, disagreed with the trial court that Col Khashnood was the necessary party. The appeal was allowed and the suit was decreed for Rs.2500/- with costs by judgment dated 13.11.1975.

Sri Ramesh Chandra Kandpal, learned counsel for the appellant submits that the plaintiff had taken money from Col Khashnood for payment to the defendant,  and it was Col. Khashnood Khan  who had actually advanced money by way of cheque drawn by him in favour of the defendant, and as such he


was necessary party to the suit.  

The submissions overlooks the contract between the plaintiff and the defendant. The plaintiff may have arranged the money from any source,  the liability of the defendant was towards the plaintiff. It was a contract of loan which was sought to be enforced by the money suit. Once the findings of advanced of  loan and  the terms and conditions given in the plaint was proved, the fact that the money was taken by arrangement from  Col Khshnood, who had drawn the cheque in favour of the defendant, does not make  him a necessary party to the suit.  The suit could not be resisted insisted on that ground.  Col. Khushnood was neither a necessary or a proper party to the suit.  His absence will not give a right to defendant-appellant to the due performance of the contract of loan with plaintiff.  The privity of contract with 61 khushnood Khan was neither pleaded nor proved.

The appeal has no merit and is dismissed.

Dt. 30.8.2006.



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