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Haji Bibi Vs. H.H. Sir Sultan Mahomed Shah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberOriginal Suit No. 729 of 1905
Judge
Reported in(1908)10BOMLR327
AppellantHaji Bibi
RespondentH.H. Sir Sultan Mahomed Shah
Excerpt:
.....really opposed to the plaintiff's case, commence their case.;the word 'plaintiff' means every person asking relief against another person. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on ground of lack..........in the present case the plaintiff would begin her case; then the first defendant, who is the other party, would state his case and call his evidence; then the second defendant, who supports the plaintiff's case would state her case and call her evidence ; then possibly the third defendant, who is opposing the plaintiff would open her case and call her evidence; and so on, so that the record would be in a hopeless state of contusion. further such a procedure would enable such of the defendants as supported the plaintiff to adduce from time to time new and further evidence to meet the points suggested in the evidence of the defendants opposed to the plaintiff. i certainly thought after plaintiff's cross-examination was finished that the second defendant and the other defendants in the same.....
Judgment:

Russell, J.

1. Since this point was raised by the Advocate General, and considering as I do that it is one of very great importance to the parties and is also one with regard to which I have been unable to find any direct authority either in India or under the English practice (and I have searched all the authorities I could think of) I carefully considered it. In the first place itappeals no me that it must be a question for the discretion of this Court to decide. I am seized of this case and it is ray duty to see that the case is tried in a fair and proper manner without prejudice or injury to either side as against the other.

2. Now I have been unable to find any definition of the word 'plaintiff'' under the Indian, procedure; but I find, in the Judicature Act in England a section, viz. Section 100, which says that the word ''plaintiff' ' shall include every person asking any relief otherwise than by way of counter claim as a defendant) against any other person by any form, of proceeding, whether the same be taken by action, suit, petition, motion, summons or other wise.''

3. Therefore; I think, common sense tells us that 'plaintiff' ought to mean, ''every person asking relief against another person.' I have read the plaint and all the written statements since this case was last on, and the conclusion I have come to is that without doubt the plaintiff and the second defendant and defendants 9 to 14 must be considered as-to use a colloquial expression-being in the same boat, although no doubt defendants 9 to 14 are not seeking any relief possibly beyond that of the plaintiff and the second defendant; and. therefore, you have these two forces arrayed against each other-the plaintiff and the second defendant and defendants 9 to 14 against the other defendants in the suit.

4. Now J. must come to the Code of Civil Procedure. Section 26 of the Code says :-''All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, or severally or in the alternative, in respect of the same cause of action.'

5. It appears to me, that there was originally nothing to prevent the second defendant from, joining the plaintiff in the plaint, and probably there was nothing to prevent defendants 9 to 14 from joining the second defendant and the plaintiff,

6. Now, what do we find in Chapter XV of the Code? Section 179 says: '' On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.' The explanation to it is:-''The plaintiff has the right to begin, unless when the defendant admits the facts alleged by the plaintiff' and contends that either in point of law or on some additional facts alleged by the defendant, the plaintiff in not entitled to any part of the relief which he seeks, in which case the de fendant has the right to begin.'.

7. Then see what Section 180 says; and that seems to mo what ought to guide me in this matter. Section 180 docs not say: 'the defendant shall then state his case'', but 'the other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case;'- 'the other party,' that is to say, the other opposing force. It seems to me that if I were to accede to the arguments of Mr. Bahadurji, counsel for the plaintiff, and Mr. Setalvad, counsel for defendants 9 to 14, it would enable a plaintiff to make parties defendants instead of plaintiffs and thus enable them to meet the case of such defendants as was opposed to the plaintiffs; during the course of the hearing as the case went on. Thus, in the present case the plaintiff would begin her case; then the first defendant, who is the other party, would state his case and call his evidence; then the second defendant, who supports the plaintiff's case would state her case and call her evidence ; then possibly the third defendant, who is opposing the plaintiff would open her case and call her evidence; and so on, so that the record would be in a hopeless state of contusion. Further such a procedure would enable such of the defendants as supported the plaintiff to adduce from time to time new and further evidence to meet the points suggested in the evidence of the defendants opposed to the plaintiff. I certainly thought after plaintiff's cross-examination was finished that the second defendant and the other defendants in the same interests as the plaintiff, were going to accede to this view, for when they were asked whether they intended to examine the plaintiff before her cross-examination began, they said they did not wish to examine her; and thereupon she was cross-examined by Mr. Invcrarity, and then by the Advocate-General and Mr. Padshah, as representing the other defendants who arc opposing her.

8. For those reasons, it seems to me that 1 must rule that in this case the plaintiff and such of the defendants as support the plaintiffs case wholly or in part, must address the Court and call their evidence in the first place, and then, following the words of Section 180 of the Code, the other party, namely the persons opposed to the plaintiff's case and that of the other defendants supporting her, must address the Court and call their evidence; and so the case must be proceeded with in a proper, legal and consistent manner.


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