1. This second appeal arises out of a suit in which the appellant Musammat Jamna Kunwar was the plaintiff and Kunj Behari Lal and Ajodhia Prasad were the original defendants. Ajodhia Prasad was the father of Kunj Behari Lal. He died before any written statement could be put in on his behalf. Musammat Jamna Kunwar alleged that her deceased husband and the two defendants Ajodhia Prasad and Kunj Behari Lal had been members of a partnership, that after her husband's death she had taken his place and that' Ajodhia Prasad and Kunj Behari Lal who. were the managing partners had not paid to her, her share of the profits accruing to the firm After the death of Ajodhia Prasad the suit proceeded against Kunj Behari Lal and he took the plea eventually that Ram Sarup, a relation of the plaintiff, was a member of the firm and that he should be impleaded. Ram Sarup was impleaded accordingly, but that was not till the period of limitation for a suit for accounts against him had expired. The learned Munsif found that Kunj Behari Lal and Ajodhia Prasad and Ram Sarup had all three been partners in the firm. He held that Kunj Behari Lal was liable to account for the profits of the firm, but came to the conclusion that the whole suit should be dismissed because Ram Sarup was a necessary party and had not been impleaded till the period of limitation had expired. The learned Judge of the lower Appellate Court supported the learned Munsifs conclusion that the whole suit should be dismissed because it could not proceed against Ram Sarup. The question in second appeal is whether the conclusions of the Courts below upon this point are right.
2. These conclusions depend really upon two propositions. One of these is that a suit for the accounts of a partnership should be dismissed if all the partners are not impleaded. The second is that a party cannot be impleaded at all if any claim which might have been made against him is barred by limitation. In my opinion, neither of these propositions is true. The first proposition is based upon a series of dicta and decisions beginning from the case in Ram Dayal v. Junmenjoy Coondoo 14 C. 791. In that case it was certainly said that it had been held more than once that if a suit was brought by certain persons as plaintiffs and they omitted in the first instance to join with them as co-plaintiffs persons who were necessary parties, and these parties were afterwards added as plaintiffs at a time when for them the claim was time-barred, the whole suit must be dismissed and the learned Judges added that they could see no distinction in principle between the case of one who ought to have been originally a plaintiff and the case of one who ought to have been originally a defendant. That was a suit for partnership accounts and the suit was dismissed because it was found that a necessary party had not been impleaded as a defendant. About this case I think I need only say that it was decided in the year 1887 when the Civil Procedure Code of 1882 was in force and that at that time the rule was that no suit should be defeated by reason of the misjoinder of parties, whereas the rule now is that no suit shall be defeated by misjoinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. My attention has been drawn to the case in Ambika Charan Guha v. Tarini Charan Chanda 19 Ind. Cas. 963 : 18 CWN 464 which was decided in the year 1913. This case certainly did follow the case to which I have already referred and it was decided after the new Code of Civil Procedure came into force. The learned Judges did not, however, make any remark upon the addition to the provisions of law that no suit should be defeated by reason of the nonjoinder of parties. They did not discuss the principles underlying that decision but were content to express their agreement with the principle laid down in Ram Dayal v. Junmenjoy Coondoo 14 C. 791 that in a partnership suit all the partners must be made parties or the suit will fail.
3. Learned Counsel for the respondents had drawn my attention to the remarks made in Lindley on Partnership, Ed. 8, pp. 341, 533, 536 and 537 on the question of the parties who should be impleaded in partnership suits. 1 in ay say at once that it does not seem to me that the rules of procedure in England have any effect upon the rules of procedure in these matters in this country because our procedure is clearly laid down in the Code of Civil Procedure and the rules in Schedule I which are made under it and we have no reason to refer to any other law. We could only refer to the Law of England upon these points if there was no provision for them in our own rules and if the English Law represented to our minds the principles of justice, equity and good conscience. However, I find even if we were to follow the principles of the English Law that it is by no means the universal rule as laid down in Lindley that all partners must be impleaded in partnership suit. No doubt in most cases it would be advisable to implead them, but it does not necessarily follow that the result of failing to implead them is that the suit instituted by the plaintiffs must be dismissed. It seems to me that it is clearly the intention of the rules in the Code of Civil Procedure that no suit should fail and that no claim should be dismissed merely upon the technical ground that a particular person has not been made a party to the proceedings. If it is considered that he should be a party, the proper course is to see that he is impleaded. If he is not impleaded for some reason then the proper course is as far as possible to do justice between the parties who are before the Court. There may be cases in which it is impossible to pass a decree of any kind in favour of a plaintiff against a defendant without affecting adversely the interests of others who are not parties to the proceedings and it may be in such cases that the only possible course is to refuse to pass a decree, but every case must be considered upon its own merits, and I do not think that any suit should be dismissed merely upon the ground that some party has not been impleaded. The facts of each case should be examined and if it is found that it is impossible in justice and equity to pass a decree in favour of the plaintiff, the decree should be refused upon that ground alone.
4. Learned Counsel for the respondents is unable to bring to my attention any rule in the Civil Procedure Code or otherwise applicable to the Courts in this province that no suit for the accounts of a partner shall proceed unless all the partners are impleaded as plaintiffs or defendants. I can find no reason in equity, justice or good conscience why any such rules should be imported into the law contrary to the rules of procedure which are clearly laid down. I may mention that the case in Ambika Charan Guha v. Tarini Gharan Chanda 19 Ind. Cas. 963 : 18 CWN 464, also makes reference to a previous ruling, i.e. Jogendra Nath Singh v. Secretary of State 17 Ind. Cas. 921 : 16 CLJ 385 : 17 CWN 835. In that case it was held that there was a distinction between necessary parties and proper parties to a suit and the learned Judges seem to have thought that the failure to implead a necessary party was fatal to a suit but even in that case a necessary party was considered only to be a person against whom a right to some relief existed and whose presence was necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit. The second condition implies that no person is a necessary party if it is possible to adjudicate upon the rights of others in his absence. If that is what the learned Judges intended to hold I do not thin that anybody would have any difficulty; in agreeing with them, but in the event of a necessary party in this sense not being impleaded, the suit would be dismissed not upon the ground of misjoinder but upon the ground that it was not possible to give the plaintiff a decree without affecting the interest of others who were not before the Court. In so far as the case in Ambika Charan Guha v. Tarini Charan Chanda 19 Ind. Cas. 963 : 18 CWN 464 depends upon this previous ruling in Jogendra Nath Singh v. Secretary of State 17 Ind. Cas. 921 : 16 CLJ 385 : 17 CWN 835, there is no reason to differ from it.
5. A reference has also been made to the case in Srinath Pal v. Hari Charan Pal 7 CLJ 266, but that was a case where there was a request that a partnership should be dissolved and the learned Judges pointed out that they could not dissolve the partnership in the absence of some of the partners That also I think would be one of that class of cases in which the decree would be refused not on the ground so much of misjoinder' as upon the ground that no effective decree could be passed. Another case of that class is in Madho Ram v. Jagat Singh 52 Ind. Cas. 18 : AIR 1919 All. 322 : 1 UPLK (A) 7. That was a case of a preemption in which the original vendee had transferred the property by creating a trust in favour of a temple and a decree was refused because the temple had not been made a party and it was impossible to obtain possession of the property or to obtain any effective decree without the temples being impleaded. Learned Counsel has also referred me to the case in Raj Chunder Sen v. Ganga Das Seal 31 C 487 : 31 IA 71 : 1 ALJ 145 : 8 Sar. 623 (PC), but that seems to me to have been a case entirely different from the one with which I am concerned. It was a case in which a decree had been passed that certain payments should be made by various parties one to another and after the decree was passed while an appeal was pending one or other of the parties died. No legal representatives were impleaded and the Appellate Court came to the conclusion that it was impossible to upset the decree without affecting' the rights of persons who were no longer in the array of parties. That again seems to have been a case where the appeal was dismissed not so much for nonjoinder but because no effective decree could be passed in the absence of some of the parties.
6. On the other side there is the case in Jagannath Mandal v. Amulya Krishna Kundu : AIR1927Cal794 , which is based upon the case in Mahomed Ishaq v. Sheik Karamul Huq 12 CWN 84 : 6 CLJ 558. These two rulings affect the second proposition which the Courts below have relied. Those Courts have come to the conclusion that Ram Sarup could not be impleaded because the claim against him was barred by limitation. They have overlooked the fact that no claim was made against him at all. The two cases to which I have referred have laid down that the rules of limitation apply only to claims. The fact that a claim is barred against a particular defendant does not prevent that defendant being impleaded pro forma as Ram Sarup was impleaded in this case. A similar principle emerges from the decision in Chaudhri Jahangira v. Sarup : AIR1930All309 . That was a case in which under the provisions of Section 194, Agra Tenancy Act, a suit against a tenant for arrears of rent could not proceed in the absence of co-sharers other than the plaintiffs. The other co-sharers were impleaded after the period of limitation had expired, but it was held that this did not affect the result as against the defendant tenant. As the learned Judge remarked, the provisions of Section 22, Limitation Act, are that a suit as regards a new defendant impleaded after the institution of the suit shall be regarded as having been instituted when he was made a party and the suit against the tenant defendant would consequently be deemed to have been instituted when it was instituted and not when the pro forma defendants were impleaded. The same principle seems to me to apply to the case before me. Even if it is admitted that the suit could not proceed until Ram Sarup was a party to it, still once he became a party the suit could not fail for non-joinder and the period of limitation against the contesting defendant Kunj Behari Lal could not be affected by the fact that Ram Sarup was impleaded after the period of limitation bad expired. I have considered the judgments of the Courts below and I do not think that there is any technical rule or any principle of equity or justice which can justify the conclusions to which they have come. This does not appear to be a case where the defendant can suffer in any way by the failure of the plaintiff in the first instance to implead Ram Sarup. It is a pure question of accounting. If Kunj Behari Lal can show that no money is due from him or that only some money is due from him and the rest is due from Ram Sarup or if he can show that the money due from him is due not to the plaintiff bat to Ram Sarup then no doubt the decree must be passed accordingly but the accounts can now be examined in the presence of all the parties and if it is found that any sum of money is due from Kunj Bhari Lal to the plaintiff, I can see no reason whatsoever why the plaintiff should not recover it.
7. In my opinion the decree of the learned Judge of the lower Appellate Court cannot be upheld. The learned Judge has decided only this preliminary question whether the suit should be dismissed merely on the ground of non-joinder and limitation. I set aside the decree and direct that the case shall be remanded to him for decision according to law. The court-fees payable on the appeal shall be refunded. The costs will follow the result. Leave to appeal is granted.