KUNJ BEHARI LAL Vs. SMTJAMNA KUNWAR

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for rendition of accounts. The plaintiff Mt. Jamna Kunwar alleged that her husband Kunj Behari Lal and Ajodhia Prasad were partners in a firm of commission agents. She further averred that on her husband's death she had been taken into partnership and that defendants Kunj Behari Lal and Ajodhia Prasad undertook to render accounts, but that Kunj Behari Lal who apparently conducted the business of the partnership had ceased transacting business. In these circumstances she claimed rendition of accounts on the allegation that the firm having ceased to do business the partnership had dissolved. Ajodhia Prasad died during the pendency of the suit. The main defence to the suit is that one Ram Sarup who was also a partner had not been impleaded. This defence however was not preferred in the appellant's first written statement. The plea was subsequently taken. The plaintiff denied that Ram Sarup was a partner, but since the objection was taken she impleaded him as defendant. Ram Sarup himself denies that he was ever a partner in the firm. The finding in the trial Court in which the lower Appellate Court agreed is that Ram Sarup was a partner. Upon this finding, the trial Court dismissed the suit and that decree was upheld in the lower Appellate Court. The learned single Judge before whom the matter came in second appeal however has set aside the order of the Court below and has remanded the case for disposal according to law. He held that even though Ram Sarup is a partner, and even though the suit so far as he was concerned was time barred at the time that he was made a party to the suit, the suit did not necessarily fail.

(2.) According to the provisions of Order 1, Rule 9, Civil P.C.: No suit shall be defeated by reason of the 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.

(3.) We would observe that this provision is wide in its scope and is subject to no qualification whatever. No suit whatever is to be defeated by the non-joinder of parties, and in every suit the Court is to proceed to do justice as between the parties thereto, no matter if there has been nonjoinder. It appears to us that it is for the Court to decide after full consideration of all the facts and circumstances in each case whether it is possible to do justice as between the present plaintiff and defendant to the suit despite nonjoinder. If the Court concludes that in the circumstances justice can be done an between the parties, then it must proceed to dispose of the suit. The answer to the question as to whether the suit falls to he dismissed in case of nonjoinder because it is barred by limitation ay against the party not impleaded must depend in our view upon the facts and circumstances of each particular case. In the course of his judgment the learned Judge who disposed of the second appeal observes: It seems to mo that it is clearly the intention of the rules in the Civil Procedure Code that no suit should fail and that no claim should be dismissed merely upon the technical ground that a particular person has not bean made 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 iho 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 cithers 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.