MASAMMAT JAMNA KUNWAR Vs. KUNJ BEHARI LAL

JUDGEMENT

(1.) This second appeal arises out of a suit in which the appellant Musammat Jamna Kunwar was the plaintiff and Kunj Behari Lal and Ajodhia Prasad were the original defendants. Ajodhia Prasad was the father of Kunj Behari Lal. He died before any written statement could be put in on his behalf. Musammat Jamna Kunwar alleged that her deceased husband and the two defendants Ajodhia Prasad and Kunj Behari Lal had been members of a partnership, that after her husband's death she had taken his place and that Ajodhia Prasad and Kunj Behari Lal who. were the managing partners had not paid to her, her share of the profits accruing to the firm After the death of Ajodhia Prasad the suit proceeded against Kunj Behari Lal and he took the plea eventually that Ram Sarup, a relation of the plaintiff, was a member of the firm and that he should be impleaded. Ram Sarup was impleaded accordingly, but that was not till the period of limitation for a suit for accounts against him had expired. The learned Munsif found that Kunj Behari Lal and Ajodhia Prasad and Ram Sarup had all three been partners in the firm. He held that Kunj Behari Lal was liable to account for the profits of the firm, but came to the conclusion that the whole suit should be dismissed because Ram Sarup was a necessary party and had not been impleaded till the period of limitation had expired. The learned Judge of the lower Appellate Court supported the learned Munsifs conclusion that the whole suit should be dismissed because it could not proceed against Ram Sarup. The question in second appeal is whether the conclusions of the Courts below upon this point are right.

(2.) These conclusions depend really upon two propositions. One of these is that a suit for the accounts of a partnership should be dismissed if all the partners are not impleaded. The second is that a party cannot be impleaded at all if any claim which might have been made against him is barred by limitation. In my opinion, neither of these propositions is true. The first proposition is based upon a series of dicta and decisions beginning from the case in Ram Dayal V/s. Junmenjoy Coondoo 14 C. 791. In that case it was certainly said that it had been held more than once that if a suit was brought by certain persons as plaintiffs and they omitted in the first instance to join with them as co-plaintiffs persons who were necessary parties, and these parties were afterwards added as plaintiffs at a time when for them the claim was time-barred, the whole suit must be dismissed and the learned Judges added that they could see no distinction in principle between the case of one who ought to have been originally a plaintiff and the case of one who ought to have been originally a defendant. That was a suit for partnership accounts and the suit was dismissed because it was found that a necessary party had not been impleaded as a defendant. About this case I think I need only say that it was decided in the year 1887 when the Civil Procedure Code of 1882 was in force and that at that time the rule was that no suit should be defeated by reason of the misjoinder of parties, whereas the rule now is that no suit shall be defeated by misjoinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. My attention has been drawn to the case in Ambika Charan Guha V/s. Tarini Charan Chanda 19 Ind. Cas. 963 : 18 CWN 464 which was decided in the year 1913. This case certainly did follow the case to which I have already referred and it was decided after the new Civil P. C. came into force. The learned Judges did not, however, make any remark upon the addition to the provisions of law that no suit should be defeated by reason of the nonjoinder of parties. They did not discuss the principles underlying that decision but were content to express their agreement with the principle laid down in Ram Dayal v. Junmenjoy Coondoo 14 C. 791 that in a partnership suit all the partners must be made parties or the suit will fail.

(3.) Learned Counsel for the respondents had drawn my attention to the remarks made in Lindley on Partnership, Ed. 8, pp. 341, 533, 536 and 537 on the question of the parties who should be impleaded in partnership suits. 1 in ay say at once that it does not seem to me that the rules of procedure in England have any effect upon the rules of procedure in these matters in this country because our procedure is clearly laid down in the Civil P. C. and the rules in Schedule I which are made under it and we have no reason to refer to any other law. We could only refer to the Law of England upon these points if there was no provision for them in our own rules and if the English Law represented to our minds the principles of justice, equity and good conscience. However, I find even if we were to follow the principles of the English Law that it is by no means the universal rule as laid down in Lindley that all partners must be impleaded in partnership suit. No doubt in most cases it would be advisable to implead them, but it does not necessarily follow that the result of failing to implead them is that the suit instituted by the plaintiffs must be dismissed. It seems to me that it is clearly the intention of the rules in the Civil P. C. that no suit should fail and that no claim should be dismissed merely upon the technical ground that a particular person has not been made a party to the proceedings. If it is considered that he should be a party, the proper course is to see that he is impleaded. If he is not impleaded for some reason then the proper course is as far as possible to do justice between the parties who are before the Court. There may be cases in which it is impossible to pass a decree of any kind in favour of a plaintiff against a defendant without affecting adversely the interests of others who are not parties to the proceedings and it may be in such cases that the only possible course is to refuse to pass a decree, but every case must be considered upon its own merits, and I do not think that any suit should be dismissed merely upon the ground that some party has not been impleaded. The facts of each case should be examined and if it is found that it is impossible in justice and equity to pass a decree in favour of the plaintiff, the decree should be refused upon that ground alone.