1. The Judge declined to entertain the suit on the merits. If he was wrong, he failed to exercise a jurisdiction vested in him by law. He refused to try the case.
2. He did not decline jurisdiction: what he did was to dismiss the suit on the ground of variance between the contract alleged in the plaint, which was a debt due to the plaintiff alone, and that which (if any) had been made, which was a debt due to the plaintiff and Moti Chand's representatives jointly. If he was wrong, he made a mistake in law, but he did not refuse to exercise his jurisdiction. There is no such refusal where a Judge disposes of a suit or other matter brought before him, by a decree or order which may be executed ; but only where he declines to dispose of it, as in Badami Kuar v. Dinu Rai I. L. R., 8 ALL, 111, or Huxley v. The West London Extension Railway Company, L. R., 17 Q. B. D. 373; 55 L. J., N. S. 506. The determination of a case upon a preliminary point, and without considering the merits, is not a refusal to try the case: trial does not necessarily involve consideration of the merits. It has been held that the erroneous dismissal of a suit as barred by limitation and without considering the merits, is not a refusal to exercise jurisdiction, but is merely an error in law. Ali Mazhar v. Cheo Bakhsh, Weekly Notes, 1885, p. 32, per Old-FIELD. and Mahmood, JJ. That is precisely analogous to this case. The trial of a suit usually requires an investigation of the merits by hearing evidence on both sides: this is the normal state of things. In other cases the trial requires evidence to be taken on one side only: as where at the close of the plaintiff's case it is held that there is nothing to go to the jury Again, there are cases in which no evidence at all need be taken, but the suit is tried and decided upon the determination of a preliminary question at law. In each class of cases, error may be made: in the first, the verdict may be against the weight of evidence; in the second, the plaintiff may have raised a presumption in his favour which required rebutting; in the third, the preliminary point of law may have been wrongly decided against the plaintiff, and he should have been allowed to give evidence. But in each case jurisdiction is exercised and not declined, and the suit is tried and decided; and in each case if error is made it is error in fact or law, and not refusal of jurisdiction.
3. The objection was overruled.
John Edge, Kt., C.J.
4. This is an application to the Court to exercise its powers of revision Under Section 622 of the Civil Procedure Code. It appears from the judgment of the Judge of the Small Cause Court of Benares that the plaintiff and one Moti Chand carried on the business of shopkeepers in co-partnership. Before the action Moti Chand died, and the plaintiff, without joining the representatives of Moti Chand, brought this action, in which he alleged that he had kept a shop, and that goods were sold to the defendant, and that the defendant had stated an account. The plaintiff sued for the balance, with interest. The Judge below dismissed the suit on the ground that the plaintiff, suing alone, could not maintain the action. Mr. Strachey, for the defendant, contended that the plaintiff could not maintain this action unless he joined the representatives of Moti Chand as co-plaintiffs, or, in case of their objecting to be co-plaintiffs, then as co-defendants. He contended that where a debt is due to two or more persons jointly, all the persons jointly interested must be made parties to the action, either as plaintiffs or as defendants. In support of that contention he relied on the judgment of Lord BLACKBURN in Kendall v. Hamilton, L. R., 4 App. Cas. at p. 543, and on Dicey On the parties to an action, pp. 11, 104, 105, 106, 148-150, 153, 154, 230, 231, 502, 503 and 506, and on the note to p. 227 of Bullen and Leake's Precedents of Pleadings (3rd ed.), Jell v. Douglas, 4 B. and Aid., 374, Story's Equity Pleadings, 8th ed., Sections. 159 and 167, Story On the Law of Contracts, 5th ed., vol. 1, P. 44, and Kandhiya Lal v. Chandar I. L. R. 7 All., at PP. 326 and 327. Basing his argument on the propositions of law enunciated in those authorities, he contended that Under Section 45 of the Indian Contract Act, taken with Section 26 of the Code of Civil Procedure, a sole surviving partner could not sue alone for a debt due to the firm, and the rule of English law by which the right to maintain an action for a trading partnership debt survived to a surviving partner, did not apply. In support of that contention he referred to the following authorities, which I shall now consider. The case of Kalidas Kevaldas v. Nathu Bhagvan I. L. R., 7 Bom., 217. That was a case in which one of three sons sued alone for a debt which had become due to his father, himself, and his two brothers, as members of a joint Hindu family. That case does not, I think, support Mr. Strachey's contention. It is only an authority for saying that one of three partners cannot maintain an action for a partnership debt. The case of Ramsebuk v. Ramlall Koondoo I. L. R., 6 Cal., 815, was a case in which one member of a joint Hindu family sued alone for a debt due to the family. The case of Uma Sundari Dasi v. Ramji Haldar I. L. R., 7Cal, 242; 9 Cal. L. R. 13, only decided that in that particular case; which was an action: for rent, all the co-sharers should join as plaintiffs, or, if they objected, then those objecting to join as plaintiffs should be made defendants. The judgment of Sir Chares Turner, in the case of Patinharipat Krishnan v. C'hekur Manakkal I. L. R., 4 Mad., 141, no doubt decided that the practice in India was to make those persons defendants who ought to be plaintiffs, but objected to be such. The case of Gopal Chunder Gooho v. Juggodumba Dossia, 10 W. R., 411, only decides that me joint landlord cannot sue for rent unless he makes his co-landlord a plaintiff or a defendant. Mr. Strachey also relied on Domat's Civil Law, Part I, Book III, Title iii, Sections. 1 and 2, p. 712, and the note to Sections. 26 in O'Kinealy's Code of Civil Procedure, 2nd ed., which says that all persons that are interested in the case should be before the Court, either as plaintiffs or defendants. Mr. Strachey also contended that the present case was not-within Section 622 of the Code of Civil Procedure.
5. Now, notwithstanding the very careful and able argument which has been addressed to us, I have come to the conclusion that Section 45 of the Contract Act, read with Section 25 of the Code of Civil Procedure, has not the effect which Mr. Strachey contends it has. The general rule of English law, which is to be found in Williams On Executors, 8th edn., at p. 850, that, in trading partnerships, ' although the right of the deceased partner devolves on his executor, it is now fully settled that the remedy survives to his co-partner, who alone must enforce the right by action, and will be liable on recovery to account to the executors or administrators for the share of the deceased,' is, I think, based on a principle of sound common sense. This rule of law is referred to by Lord Justice Mellish in McClean v. Kennard, L. R., 9 Ch. App. at pp. 346, 347. It is obvious to my mind that it would lead in many cases to difficulties and confusion in the getting in of the assets of a firm on the death of a partner, if it were held that a surviving partner could not sue for such assets unless he joined in the action the representatives of the deceased partner. It might be difficult, if not impossible, for the surviving partner to ascertain who was the legal representative of the deceased partner. The period of limitation for the bringing of the action might almost have run, and by the time the surviving partner had ascertained who the representatives were, the action might be barred by limitation. Again, if it were necessary to make the representative a party, the defendant, who might be clearly liable, would be entitled to defend the action, and possibly successfully in that event, on the ground that the person that was added as representative was not the legal representative of the deceased partner. Now, as I have said, the principle of English law is based on common sense, and it is a rule which, in my opinion, we should apply here unless there is statutory provision or authority to prevent us.
6. What is the effect of Section 45 of the Contract Act? It appears to me that Section 45 extends the English law applicable to trading partnerships to all cases of partnership. There is nothing in Section 45 which says that the representatives of a deceased partner must be joined in an action for a partnership debt. It may be that the legal representatives of a deceased partner might Under Section 45 be joined in a suit by the surviving partner for a debt due to the partnership, but I see nothing which prohibits the rule of English law in the case of trading partnerships being applied in India. It may be doubted whether those who framed that section had a case of this kind in view. The legal representative in this case would not be entitled necessarily to a moiety of the amount recovered in the action: his share of the amount recovered would depend on a settlement of accounts on the realization of the partnership assets, and it would, in my judgment, be highly inconvenient and possibly mischievous to allow him to interfere in the realization of the assets unless through the intervention of the Court, by the appointment of a receiver in cases in which such interference by the Court might be necessary.
7. Now Section 26 of the Code of Civil Procedure enables all persons to be joined as plaintiffs in whom the right to any relief claimed is alleged to exist. That section is singular to the rule to be found in the rules under the Judicature Act in England (order XVI, Rule 1) and no doubt was introduced to prevent a miscarriage of justice from want of parties, and to enable persons who claimed somewhat different reliefs to be joined as plaintiffs in one action. But that section does not say that all persons who may be interested in the result of an action must necessarily be parties, nor does it say that an action by a surviving partner cannot be maintained unless the representatives of the deceased partner are made parties., For these reasons I am of opinion that the representatives of Moti Chand were not necessary parties to the action, and that the plaintiff was entitled to require the Court to proceed and try the action on the merits.
8. In my opinion the Judge of the Small Cause Court failed to exercise his jurisdiction, and probably acted with material irregularity in dismissing this suit on the ground that the representatives of Moti Chand had not been made a party. Section 622 of the Code of Civil Procedure has been considered by a Full Bench of this Court in Muhammad Suleman Khan v. Fatima, ante, p. 104, and was also fully considered by my brother MAHMOOD in the case of Dhan Singh v. Basant Singh I. L. R., 8 All., 519. I adhere to what I said in the Full Bench case, and approve of what was said by my brother Mahmood. This suit was one within the jurisdiction of the Small Cause Court Judge, and it was his duty to hear and determine the suit, which was brought by the person legally entitled to bring it alone in his Court, and in declining to entertain the suit on the merits he brought the case, in my judgment, within the scope of Section 622 of the Code of Civil Procedure.
9. There is only one other observation I have to make. If this was a partnership debt, which does not appear to have been proved, though it appears to have been assumed by the Judge, the plaint, if properly framed, ought, I think, to have alleged that fact, and that Moti Chand had died before the action, and that the action was brought by the plaintiff as surviving partner for his own benefit and the benefit of the estate. The case of Jell v. Douglas, 4 B. and Ald. 374, cited by Mr. Strachey, shows, I think, that according to English procedure at that date in force, at any rate, the claim should have contained some such averments. Although I say this, I would not dismiss the action merely because the claim did not contain those averments. In this case the plaintiff not only relied on proof of the original liability by showing a sale of the goods to the defendant, but he also relied upon an account stated with the defendant, and on part payment of the amount of the original debt. It may be that the account was stated between the plaintiff and the defendant. In my opinion an action should not be dismissed on merely technical grounds when the merits are proved, and no injustice by surprise or otherwise will be done. In this case I think we ought to exercise the power of revision conferred on us by Section 622 of the Code of Civil Procedure, and make an order allowing the application, and directing the Judge to enter the action on his list of pending cases, and dispose of it according to law. Costs to abide the result.
10. I concur.