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Devsey Khetsey Vs. Hirji Khairaj - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1068 of 1938
Judge
Reported in(1941)43BOMLR993
AppellantDevsey Khetsey
RespondentHirji Khairaj
Excerpt:
.....by the defendant, to transpose him as plaintiff in the suit and to make the heirs of the original plaintiff as dependants.;edulji muncherji wacha v. vullebhoy khanbhoy (1883) i.l.r. 7 bom. 167, followed. - - 167 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 and that 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. justice west felt some difficulty as no case on the point appeared to be forthcoming either in india or from english..........proceedings. he took out a chamber summons for bringing on the record of the suit in place of the original plaintiff bai moorbai, the widow of the original plaintiff, damji devsey and dhanpati devsey, all three as heirs and legal representatives of the original plaintiff. the defendant also sought by the summons liberty to amend the plaint and proceedings. on this summons mr. justice kania made an order on august 9, 1940, whereby he gave 'the defendant liberty to -bring on record of this suit bai moorbai, damji devsey and dhanpati devsey as heirs and legal representatives of the deceased plaintiff and also gave the defendant liberty to amend the plaint and proceedings accordingly. on september 16, 1940, the defendant's attorneys wrote to bai moorbai drawing her attention to the order.....
Judgment:

Chagla, J.

1. The plaintiff filed the suit on August 2, 1939, for dissolution of partnership that subsisted between hirh and the defendant and for the usual partnership accounts. It was alleged in the plaint that the partnership had been dissolved on June 1, 1939. After the suit was filed, the defendant took out a notice of motion on October 2, 1939, for certain reliefs, and an order was made on October 10, 1939. The defendant made his affidavit of documents on November 17, 1939. On December 19, 1939, the plaintiff died.

2. On March 18, 1940, the defendant adopted rather curious proceedings. He took out a chamber summons for bringing on the record of the suit in place of the original plaintiff Bai Moorbai, the widow of the original plaintiff, Damji Devsey and Dhanpati Devsey, all three as heirs and legal representatives of the original plaintiff. The defendant also sought by the summons liberty to amend the plaint and proceedings. On this summons Mr. Justice Kania made an order on August 9, 1940, whereby he gave 'the defendant liberty to -bring on record of this suit Bai Moorbai, Damji Devsey and Dhanpati Devsey as heirs and legal representatives of the deceased plaintiff and also gave the defendant liberty to amend the plaint and proceedings accordingly. On September 16, 1940, the defendant's attorneys wrote to Bai Moorbai drawing her attention to the order that had been made by Mr. Justice Kania and enclosing with the letter a copy of the said order and also stating that by the said order she had been directed to amend the plaint and proceedings in the suit and calling upon her to amend the plaint and proceedings within a week in default they threatened further proceedings against her.

3. It is clear from Mr. Justice Kania's order that it is not Bai Moorbai who was directed to amend the plaint and proceedings. Liberty was given to the defendant to do so. I am not concerned whether in law the defendant could have availed himself of the liberty given to him by the order of Mr. Justice Kania, but in fact he has not availed himself of that liberty and today the position is that the plaint and proceedings on the record of this Court are what they were when the suit was filed by the plaintiff. When the suit was called on before me today, Mr. Taraporevala wanted me to transpose the defendant as the plaintiff and to give him leave to bring the heirs of the original plaintiff as the defendants to the suit. Now, it is clear that a partnership suit, as was pointed out by Mr. Justice West in Edulji Muncherji Wacha v. Vullebhoy Khanbhoy (1883) I.L.R. 7 Bom. 167 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 and that 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 that case the facts were somewhat similar to the facts in this case. There the plaintiff who had filed a partnership suit had settled with most of the defendants and wanted leave to withdraw the suit or, in the alternative, to have the suit dismissed. Ten of the defendants supported the plaintiff's application. Two of the defendants objected and applied, under Section 32 of the Civil Procedure Code (Act X of 1877), that they might be made plaintiffs and that the plaintiff might be made defendant. Elaborate arguments were addressed to Mr. Justice West, and although Mr. Justice West felt some difficulty as no case on the point appeared to be forthcoming either in India or from English Courts, he ultimately made the order stating that he clearly had jurisdiction to do so.

4. Now, there is no doubt that under Order I, Rule 10, the Court has the jurisdiction in proper cases to transpose defendants as plaintiffs, and I think that in this case where partnership accounts have to be taken it would work great hardship if the death of the original plaintiff, who filed a partnership suit for partnership accounts, should put an end to the suit, and therefore I am inclined to grant the application made to me by Mr. Taraporevala.

5. The order that I will make will be that the defendant in the suit should be transposed as the plaintiff and he as the new plaintiff should amend the plaint and proceedings in this suit. The written statement that he has filed as the original defendant he will be allowed to treat as the plaint in the proceedings which will be amended according to my order. The defendant will bring the heirs of the original plaintiff, Bai Moorbai, Damji Devsey and Dhanpati Devsey, on record as defendants to the suit. I will also give liberty to the defendant to amend his written statement in order that any reliefs which he might have asked, if he had been the plaintiff in the suit, might be incorporated in his written statement. The defendant will serve the writ of summons and a copy of the order I am making today within four weeks upon Bai Moorbai, Damji Devsey and Dhanpati Devsey. I direct that the newly added defendants should put in any further pleadings if they be so advised within two months from today and they should make their affidavit of documents within three months from today. The suit will be on board for hearing on January 5, 1942, as a part-heard suit.


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