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Edulji Muncherji Wacha Vs. Vullebhoy Khanbhoy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom167
AppellantEdulji Muncherji Wacha
RespondentVullebhoy Khanbhoy and ors.
Excerpt:
.....had been given exclusive powers not only to execute documents but also induct tenants. - 1. i should like to have some authority to guide me in deciding this question, and it is strange, considering the multitude of partnership cases in the english reports, that no case upon the point appears to be forthcoming. but a partnership suit is a suit of a peculiar character, and the parties to such a suit do not stand to each other precisely in the same relation as parties to suits generally. if the plaintiff is not made a party defendant, it might happen that the whole object of the suit would be defeated, and needless expense thrown upon persons who have inflicted no injury upon the partnership......the allegations are withdrawn, and no question remains for the court to decide. but a partnership suit is a suit of a peculiar character, and the parties to such a suit do not stand to each other precisely in the same relation as parties to suits generally. each of the parties to a partnership suit, however he may be formally ranked, is really in turn plaintiff and defendant, and in both capacities comes before the court for the adjudication of his rights relatively to the other partners, which the court endeavours to determine by its decree. in a case mentioned to me it seems that a double transposition of parties was made in taking the account after a decree, and this being possible it seems equally reasonable that the proceedings in the suit may be moulded to attain the same end. i.....
Judgment:

West, J.

1. I should like to have some authority to guide me in deciding this question, and it is strange, considering the multitude of partnership cases in the English reports, that no case upon the point appears to be forthcoming. The present application is made under Section 32 of the Civil Procedure Code, which provides that parties may be added or transposed as may be necessary 'to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.' These questions, of course, in an ordinary suit arise on the allegations made by the plaintiff, and prima facie it would appear that if the plaintiff withdraws, the allegations are withdrawn, and no question remains for the Court to decide. But a partnership suit is a suit of a peculiar character, and the parties to such a suit do not stand to each other precisely in the same relation as parties to suits generally. Each of the parties to a partnership suit, however he may be formally ranked, is really in turn plaintiff and defendant, and in both capacities comes before the Court for the adjudication of his rights relatively to the other partners, which the Court endeavours to determine by its decree. In a case mentioned to me it seems that a double transposition of parties was made in taking the account after a decree, and this being possible it seems equally reasonable that the proceedings in the suit may be moulded to attain the same end. I think, therefore, that the Court may transpose the parties in such suits where it is shown to be necessary or desirable, in order that their pecuniary relations of debtor and creditor may be ascertained. A case cited shows that a defendant in such a suit has been made a plaintiff in place of the original plaintiff, and the only question is whether there is any difference of principle involved in not only making a defendant plaintiff, but at the same time making a plaintiff a defendant. I do not think there is: the defendant made plaintiff might apply to have the plaint amended so as to make the late plaintiff a defendant. If the partnership account prayed for in the suit is to be complete, all the parties to the partnership have a right, and are under an obligation to appear. If the plaintiff is not made a party defendant, it might happen that the whole object of the suit would be defeated, and needless expense thrown upon persons who have inflicted no injury upon the partnership. All the proceedings already taken might prove futile, and it might be necessary to begin the whole case over again. Here, no doubt, allegations of fr.aud have been made by the plaintiff in which the defendants do not join. It is generally true that a plaintiff who puts forward fraud as a ground of relief must prove it, and will not be allowed, if he fails, to claim relief upon some other ground. But I do not see that that rule has any application to such a case as this. The applicants here are not answerable for the allegations of fraud made against their co-defendants by the plaintiff, and they may obtain relief from this Court upon grounds differing in detail from those put forward by the plaintiff, though involving the same general principle for claim to the Court's assistance in ascertaining the pecuniary relations of the several partners in the firm. I think that this application should be allowed; and I reserve the disposal of costs, as complicated questions upon the point may arise. Leave is also given to amend the plaint as advised.


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