MULJI TEJSEY Vs. RANSEY DEVRAJ

JUDGEMENT

(1.) The first point requiring decision. is whether the firm of Khoorpal Dungersey is a necessary party to the suit The answer to that question plainly depends upon the determination of a further question of fact, whether the firm of Khoorpal Dungersey is a partner of the plaintiff? That is a matter which must have been in the plaintiff's knowledge. Both he and Khoorpal Dungersey know and knew throughout the suit whether a partnership existed between them.

(2.) The defendant contends that the result of finding that Khoorpal Dungersey is plaintiff's partner must be the dismissal of the suit. To this the answer is that Rule 9. Order 1 of the Civil Procedure Code, forbids any suit to be defeated for misjoinder or non-joinder. Under the old Civil Procedure Code, Section 31, it was enacted that no suit should be defeated for mis-joinder. But as in England where the Rule of the Supreme Court first stood in the same language, the Courts inclined to include non-joindeir Yet there is more than one obvious difference both in the nature and the results flowing from the two defects, misjoinder, and non- joinder. Misjoinder can do the defendant no real harm, and remedying the mistake at any time, could not, as far as I can see, prejudicially affect in any particular, the course of the defence or attack. But non-joinder is altogether a different thing. Withholding a plaintiff and making him a witness, which is what the defendant alleges, has been done in this case, might give the plaintiff an unfair advantage throughout the trial. Many questions which might be put to a plaintiff could not be put to a witness; and the whole effect of statements made by an interested party, must be, when the Court comes to weigh and appreciate the evidence tested and judged by other standards than those which would apply to the same statements made by a disinterested witness. If then a plaintiff has designedly, with the object of strengthening his case and evading awkward questions kept back co-plaintiff, by a denial of facts which if proved would have entitled his opponent to insist upon having that person added at once as a co-plaintiff; and has thus throughout the trial secured exactly the advantages he had in view it does seem that merely adding that person as a co-plaintiff or a co-defendant formally at the time of judgment, is from the defendants point of view, no remedy at all of the wrong which has been done. Taking a case like this, if the Court finds when the trial is over, upon a painstaking analysis of much, evidence and long consideration of many arguments, that the fact which the plaintiff denied, is proved against him; that the man he said was not really was his partner; then considering that if the fact had been admitted, that person must have been and would have been made a co-plaintiff or co-defendant from the beginning, it is a serious question whether the plaintiff should be allowed to turn round and say, well, it does not matter now; the Court may if it pleases add the man. For that amounts to this that the plaintiff's permitted to make the fullest use of deliberate perjury; is allowed to lead evidence, as of a certain quality, while it really is not of that quality; is enabled to evade many questions that might otherwise have been put; to escape the effect of what might have turned out damaging admissions, all with complete impunity.

(3.) The cases cited under the old law, while they appear to recognise the defendant's right to have partners joined in the suit, are distinguishable, in this respect, that the suits were dismissed because by the time that the Court had found on the facts that other persons were partners and were necessary parties, the claim had against them become time-barred. Kalidas Kevaldasv. Nathu Bhagwxn 7 B. 221 and Ramsebuk V/s. Ramlalla Koondoo 6 C. 815 8 C.L.R. 457 The principle I have in mind is essentially the same, resting on it the right as a right of the defendant to have partners made parties to any partnership suit brought against him, but its application, in the way I have suggested above, would go farther, and on a divergent line, from the authorities on which defendant relied. Nor do I see any way of getting over the plain language of the Code.