MAHOMED FAIZ CHOWDHURY Vs. UPENDRA LAL SINGH ROY

JUDGEMENT

(1.) This suit relates to a certain taluk in the Tipperah District, called Durga Charan Dewan's Chakbasta. It appears to have had a somewhat unfortunate history for the past few years. For some reason or other it cannot be managed in the ordinary way and accordingly common managers have been appointed from time to time under Section 93 of the Tenancy Act. The second of these was a Mr. Sandys, who was appointed in 1891. He was succeeded by the principal defendant who was compelled to bring a suit for an account against Mr. Sandys which we understand is still pending. Then on the 20 December 1896 after an enquiry by a Commissioner which revealed a deplorable state of affairs, the District Judge dismissed the principal defendant and appointed the present plaintiff. On this occasion too all sorts of delays took place in handing over papers and finally the present suit for an account was brought by the plaintiff against the former manager, Muhammed Faiz Chowdhuri whom we may call for brevity's sake the 1 defendant, and a number of pro forma defendants. The Subordinate Judge decreed the suit for an account and after an enquiry by Commissioner has finally decreed the suit for nearly 30,000. During the proceedings the 1 defendant died and his son has been substituted on the record. He appeals to this Court.

(2.) The first point taken is that the present common manager cannot sue the former common manager for an account. Now that such a suit under ordinary circumstances is maintainable is clear from the decision of this Court in the 1 defendant's appeal against the order of the Subordinate Judge of Tipperah dismissing his suit for an account against Mr. Sandys. In that appeal the learned Judges held that such a suit would lie. They overruled the view of the Subordinate Judge that as Section 98 authorised the co-owners or any one of them to inspect the accounts the right to sue for accounts lay in the proprietors and not in the common manager. Under Section 98 a manager is entitled, for the purposes of management of the estate, to exercise all the powers which the co-owners possibly could exercise; and it was held that the institution of a suit for accounts must be regarded as one for the purposes of management. It seems clear, therefore, that the right to sue for an account lies in the proprietors jointly, and, therefore in the common manager, who when there is one represents all the co-owners jointly.

(3.) There are, however, two points that distinguish the present case from the suit brought by the 1 defendant against Mr. Sandys. In the first place the common manager sued in this case was himself a co-owner; so that he with his co-owners is represented by the plaintiff, while at the same time, he is the defendant in the suit. "We do not think, however, that this circumstance is fatal to the suit. The rule that the same men cannot be plaintiff and defendant in the same suit loses much of its force in India, where the Courts are Courts of Equity, when all the parties are before the Court and their rights can be determined and adjusted, Premji Ludha V/s. Dossa Doongersey 10 B. 358; Rustomji Aspandyarji Sethna V/s. Sheth Purshotamdas Chaturdas. 25 B. 606. Here all the parties are before the Court, all the co-owners including the 1 defendant on the one side, represented by the manager, and the 1 defendant on the other. It is clearly possible to determine and adjust the rights of all and the suit, therefore, need not fail.