JUDGMENT

Radha Krishna, J - This is the defendants' application under Section 25, Provincial Small Cause Courts Act, against the decree passed against them by Saiyid Shaukat Husain, Judge, Court of Small Causes, Lucknow. The plaintiff opposite party is described in the plaint as "Firm Sadiq Husain and Mehdi Husain, through Sadiq Husain, son of Husain Ali, proprietor of the firm, 50, Old Nakkhas, City Lucknow." It has been found by the Court below that the firm is not a proper firm but is only described as such and that Sadiq Husain is the sole proprietor of the business. This finding is no longer in dispute. The cacts are that the plaintiff sued defendants 1 and 2 for recovery of a sum of Rs. 982-8-0 as hire for the use of 50 tents and 138 kanats alleged to have been taken on hire by them from the plaintiff for the use during the last Congress Session held at Lucknow. Defendant 1 was described in the suit as below: "All India Congress, through B. Thakur Prasad Saksena, Secretary, Swadeshi Exhibition, son of, not known, kaisth, Tirminiganj, City Lucknow." The Court below decreed the suit against both the defendants holding that it was quite satisfactorily proved that the plaintiff supplied the tents and kanata to the defendants as alleged by him. In the decree also defendant 1 is described as in the plaint. Thakur Prasad who is described as the Secretary of the Swadeshi Exhibi tion in the plaint, and Ajudhia Prasad, defendant 2, have come up in revision to this Court against the said decree. On behalf of the applicants their learned Counsel has contended that the suit against the "All India Congress" was not properly framed and could not be decreed against that body as represented by the applicants. Further, it was argued that the finding of the Court below upon the merits of the case was based upon a misreading and misunderstanding of the evidence produced by the defendants and was thus liable to be set aside as perverse.

2. On behalf of the opposite party it has been contended that the first point was not raised in the trial Court and no prejudice having resulted to the defendants the argument should not be entertained in this Court and that the non-observance of the provisions of Order 1, R 8, Civil P.C., was a mere irregularity and the decree passed by the Court below cannot be set aside. It was further argued that the decree against defendant 1 should at any rate be maintained. I have heard the learned Counsel for the parties at great length. There is no evidence in the case that the All India National Congress which was intended to be sued is a registered body. It consists of numerous members and is a fluctuating body of persons subscribing to the creed of the All India National Congress. Further, there can be no doubt that the intention of the plaintiff was to sue the All India National Congress, as a body and not Thakur Prasad in his personal capacity. I have read the plaint carefully. In para. 1 it is stated that Thakur Prasad Secretary, All India Congress Swadeshi Exhibition, was authorized to act on behalf of the Congress. In para. 4 it is alleged that the plaintiff supplied the goods on 8th April. 1936, in pursuance of the order of the Secretary. In para. 8 relief is claimed by the plaintiff against the defendants who are described in the beginning of the plaint. The position seems to have been maintained at the trial in the lower Court and there is no doubt that the lower Court understood the suit to be not against Thakur Prasad personally. In the proceedings the presence of defendant 1 is noted as "through Thakur Prasad." In the judgment also Thakur Prasad, who was examined as D.W. 1, is described as "defendant l's representative." There is no doubt therefore that the suit as framed was against the All India National Congress, although full description thereof was not given in the plaint, and that Thakur Prasad was not sued in his personal capacity. It is well settled that where a suit is brought on behalf of or a