1. This appeal, and the analogous appeals, Nos. 951, 952 and 953 of 1893, were heard by Banerjee and Rampini, JJ., and the learned Judges having differed on a point of law, the appeals have, under Section 5751 of the Code of Civil Procedure, read with Section 587, been referred to me by order of the Chief Justice.
2. The facts out of which the appeal arises are as follows: In 1292 B.S., six persons, viz;., the defendant No. 5, the husband of the defendant No. 2, the husband of the defendant No. 25, and brother-in-law of defendant No. 26, the father of the defendants Nos. 11 and 12, the defendant No. 9, and one Kebulram Shaha, entered into partnership for the purpose of carrying on a business in hemp at Sunamgunge. The defendant No. 10 was the gomasta of the business. He was remunerated by a 2 annas 10 gundas share of the profits; the remaining profits were divisible amongst the six partners in certain shares which are set out in Schedule I of the plaint. In 1293 B.S., the constitution of the partnership was changed, by the introduction of five new partners, viz., the father of the defendant No. 18 (husband of the defendants Nos. 19 and 20), the defendant No. 15, the defendant No. 7, the father of the defendant No. 4, and the defendant No. 8. The defendant No. 10 still remained the gomasta of the business on the same terms as in 1292 B.S., and the remaining profits were divisible amongst the eleven partners in certain shares which are set out in Schedule I of the plaint.
3. In 1294 B.S., the constitution of the partnership was again changed. Three partners, viz., the husband of the defendant No. 2, the father of the defendant No. 18 (husband of the defendants Nos. 19 and 20), and the father of the defendant No. 4, died or retired; and four new partners were admitted, viz., the gomasta (the defendant No. 10), the defendant No. 3, the plaintiff, and the defendant No. 24. The defendant No. 17 had an interest in the share of the gomasta. The defendant No. 10 still remained the gomasta of the business, his remuneration being increased to a 3 annas 10 gundas share of the profits, and the remaining profits were divisible amongst the twelve partners in certain shares, which are set out in Schedule I of the plaint. The partnership was dissolved by mutual consent on the 19th Chait 1294 B.S.
4. After the dissolution of the partnership, accounts for each of the three years' trading, shewing the debts and dues of the respective partners for each year, were prepared by the creditors of the firm. These accounts were objected to by some of the partners and were not signed by any of them.
5. In 1889 the partners who had objected to the accounts instituted suits Nos. 958 and 959 of 1889 in the Court of the First Munsif of Habigunge against the other partners. Suit No. 958 was brought by the father of the defendants Nos. 11 and 12, and his brother. The present plaintiff was defendant No. 13, and, the contesting defendant in this [the?] suit. The gomasta (defendant No. 10) was defendant No. 24. The nature of the claims made and of the relief in suit No. 958 appears from the following summary of the pleadings and arguments in the Munsif's judgment:
Suit for recovery of money on adjustment of accounts.'
' It has been alleged on behalf of the plaintiffs that the defendant No. 24, as gomasta and sleeping partner, started a business at Sunamgunge, on behalf of the other defendants, for carrying on trade in ganja, &c.; that the plaintiffs, as partners to the said business, carried it on, some by using and some without using their names, up to the period in suit; that the plaintiffs supplied the capital as mentioned in the plaint according to their respective shares; that the defendants, in collusion with each other, did not adjust accounts and pay their liabilities to the plaintiffs, and therefore the plaint prayed that the accounts be adjusted by Commission, and the plaintiffs be awarded such amounts of money as they might be respectively entitled to get from each of the defendants.
' It is contended, on behalf of the defendants Nos. 2, 3, 6, 8, 11, 12, 13, 15, 16, and 17, that the plaintiffs in this suit and in suit No. 959 having similar interests separate suits cannot proceed; that the suit is defective for want of necessary parties and for misjoinder; that the claim is barred as against the said defendants; that the defendant No. 24 was gomasta of the business; that with the consent of all the parties everything in connection with the said business was carried on by the said defendant; that he is alone liable to all the co-sharers; that this suit is barred by the application of Section 265 of the Contract Act; and that when accounts were adjusted by the gomasta defendant and the mohutir the plaintiffs did not give effect to it for unjust gain.
' The defendant No. 3 contends that he was no partner of the said business and had nothing to do with the loss and profit thereof; that his son Dino Nath was no partner to the said business with his consent; that this defendant obtained no property left by Dino Nath aforesaid.
'The gomasta, defendant No. 24, contends that this suit is not tenable in this Court; that the claim for 1292 is barred by limitation; that this answering defendant is not bound to render accounts to the plaintiffs; that the said defendant acted as gomasta on behalf of the defendants Nos. 1 and 10; that the accounts of 1292 have been adjusted with them and his debt has been included into their dues; that he has no concern with the plaintiffs; that the accounts of 1293 and 1294 have also been adjusted, and the defendants' debts and dues ascertained; and that the plaintiff's have brought this suit in order to unnecessarily cause loss to him. The other objections taken by him are similar to the preceding written statement.
6. The Munsif framed the following issues inter alia:
This suit and Suit No. 959 being related to the same business, whether separate claims ought to be entertained?
' Is the suit untenable under the provisions of Section 245 of the Contract Act?
' Does the suit lie in this Court?
' Was there an adjustment of accounts with the consent of the parties?
' What amount is due to which of the plaintiffs according to the accounts, and who is liable for it?
7. All these issues were decided in favour of the plaintiffs.
8. Upon the issue 'was there an adjustment of accounts with the consent of the parties?' the Munsif's finding was that there had been an adjustment effected through the creditors of the partnership; that the plaintiffs had objected to such adjustment; and that it had not been signed by either of the partners.
9. The accounts as adjusted by the creditors were made over to the Amin for examination. He examined them and filed his report in accordance with which the plaintiffs' suit was decreed in modification of their claims against certain of the defendants.
10. In Suit No. 959 the defendant No. 15 in the present suit and his co-sharers were the plaintiffs, and the suit was decreed in modification of their claim against certain of the defendants.
11. The Munsif's judgments and decrees were upheld on appeal.
12. The Amin by his report found that Rs. 233 was due to the plaintiff in this suit in respect of his share in the partnership profits for the year 1294 B.S., and this suit is brought for recovery of that sum.
13. The plaint, omitting the names of the parties and the schedules, is as follows:
The above-named plaintiff states as follows:
1. A business was started at Sunamgunge, &c;, for carrying on trade in hemp, etc., according to the shares of the loss and for profit of the partners mentioned in the Schedule I given below. In 1294 B.S., the extent of my share was 15 gundas and the remaining shares belonged to the other parties mentioned in the said schedule and the sleeping partner, gomasta the defendant No. 10. The said business was started in 1292 B.S., and wound up on the 19th Chait 1294 B.S.
' 2. In Suit No. 958 of 1889, brought by the defendant No. 13 and others, and Suit No. 95y of that year, brought by the defendant No. 15 and others, to which all the partners were parties, the accounts were adjusted by the Civil Court Amin, and the debts and dues of all the partners were determined by the Court accordingly, as mentioned in Schedule II.
' 3. According to the said accounts a sum of 233 rupees 11 annas 5 gundas was due to me on my 15 gundas share for the year 1294 B.S. Notwithstanding repeated demands and attempts were made by me, the defendants failed to pay me the said sum of money. Hence the cause of action in this suit, which has accrued since 19th Chait 1294 B.S., the last date of the business being open, within the jurisdiction of Thana Baliachung.
'4. I, the plaintiff, pray that a decree may be passed against the principal defendant in proportion to 233 rupees 11 annas 5 gundas on my 15 gundas share with costs of Court, or a decree may be passed for any relief that might be deemed proper by the Court to award me against each of the defendants. Dated 10th Chait 1297.'
14. The contesting defendants' written statement was as follows:
Suit for recovery of 233 rupees 11 annas 5 gundas according to an adjustment of accounts.
1. The plaintiff has no cause of action against me, and the plaintiff's suit cannot proceed in its present form.
2. The plaintiff's claim is barred by limitation.
3. The business in dispute was carried on by removing old partners and taking new ones in their place every year, and by making difference in the shares, and, according to the plaintiff's own statements, the debts and dues as between co-sharers were differently determined. Under such circumstances the plaintiff's suit brought, as it 4s, by joining together the debts of unconnected persons, is bad.
4. The business in dispute being carried on within the jurisdiction of Sunamgunge, the plaintiff's suit cannot proceed in this Court.
5. I never held the post of gomasta of the disputed business on behalf of all the partners, plaintiff and others. I hold no monetary concern with the plaintiff, and I am not liable for the claim in this case, and the plaintiff is not entitled to get it. The plaintiff's suit is entirely false.
6. Being appointed by the defendants Nos. 1 and 5, I have been holding the post of gomasta under them in connection with the disputed business since long before the years in dispute, at a loss and profit to the extent of 6 annas of their shares considered as 16 annas. The accounts were closed up to the year 1'295 B.S. and I was in debt to a certain amount to the defendants Nos. 1 and 5, for which they sued me and realized their dues. I am not and cannot be in debt to any other person in connection with the business mentioned in the plaint till 1295 B.S.
7. Owing to my being on bad terms with the defendants Nos. 1 and 5, and Goloke Chunder Shaha, brother of the defendant No. 5, Goloke Chunder Shaha aforesaid took possession of the nikas papers up to 1295 B.S., and caused this false suit to be brought by the plaintiff in order to cause loss to me. The cases alluded to by the plaintiff are now pending in an appeal preferred by me. I therefore pray that your Worship may be pleased to dismiss the suit and award me my costs. Dated 2nd Assar 1298 B.S.
15. Upon these pleadings the Munsif framed the following issues, viz.:
Is the suit barred by Sections 13 and 43 of the Code of Civil Procedure?
' Is the suit barred by time?
' Which of the parties are liable to pay, and for what amount?
16. The Munsif decided the first issue in favour of the defendants and gave no decision on the others. His judgment is as follows:
Issue No. 1.-On the last hearing day when the cases were opened, then I thought it necessary to frame this issue, though the parties did not raise this point, still for the sake of justice, as can be allowed, having consistency with the law, I thought that I was bound to raise such a point and to determine it before I would go on with other points. It has been an admitted fact that, in the previous suit brought by defendants Nos. 13 and 15 of suit ' No. 261, all the plaintiffs and other partners had been made parties, and in that suit the liabilities of all the parties had been settled, though through the laches of these plaintiffs they did not obtain decrees for their shares of the money. There being only one karbar among all these partners, there is only one cause of action, and there can be only one suit, as it will appear from paragraph 4 of Article 113 of the Fourth Schedule, Civil Procedure Code. It is not the intention of the law that for the claim of each partner a separate suit would be brought. It matters not whether a partner appears in such a suit as a plaintiff or a defendant.
' The partnership and partition suits are the only classes of suits where, at the instance of one, others may get their interests realized. In such suits it is no uncommon thing that sometimes the plaintiff brings the suit for the benefit of others and loss of his own. In my opinion the present plaintiffs should have got their reliefs in the previous suits, and no fresh suits as laid now can be entertained by any Court. This view of the principle of law will be supported by the rulings reported in Indian Law Reports, 7 Calcutta, p. 428; Indian Law Reports, 3 Calcutta, pp. 353 and 785. On this view of the law I find that the present suits of the plaintiffs are barred and decide this issue in favour of the defendants.
17. The plaintiff appealed. The District Judge affirmed the decision of the Munsif and dismissed the appeal with costs. His judgment is as follows:
The circumstances of these cases are peculiar. The parties were partners (or they are representatives of partners) in a business for the sale of ganja.
' In 1889, suits Nos. 958 and 959 were brought in the First Court Habigunge. In suit No. 958, Raghu Nath Shaha and Earn Churn Shaha were plaintiffs. In suit No. 959 Durga Churn Shaha, Hori Churn Shaha, Ram Churn Shaha, and Ishuri Dasi, representative of Kartik Ram Shaha, were plaintiffs. The prayers in the two suits were very much the same. In each suit it was asked that the accounts of the business might be adjusted, and that the plaintiffs might recover the sums found due to them. The Munsif deputed the Civil Court Amin to examine the accounts of the firm and to submit a report. This was done, and in each suit the Munsif found what was due to the plaintiffs and gave decrees accordingly.
' It is admitted that the parties in the suits now under consideration were parties in the suits Nos. 958 and 959. In fact, the claims in these suits are based on what was done in those suits.
' In the plaint in each of the five suits under consideration it is alleged that the accounts of the business were adjusted by the Amin, and that it was established by the Court that a certain sum was due to the plaintiff. The prayer in each suit is for the recovery of the sum which was found to be due in the suit No. 958 or 959 of 1889.
' It seems that when issues were first drawn up by the Munsif there was no issue as to whether the suit was barred under Section 13 or 43, Act XIV of 1882. Such an issue was subsequently raised and was determined against the plaintiffs. The appellants' pleaders have contended that the point was not raised in the written statements of the defendants, and that the Munsif was wrong to draw up such an issue.
' It is true that the defendants did not in their written statements directly raise this point. They asserted that the suits could not proceed in the form in which they have been instituted.
' It has not been shown that the defendants raised any objection in the original suits to the first issue. I think it was an issue which the Munsif was bound to frame. It was necessary for him to decide the question whether he had power to try the suits.
' I am not quite sure that the provisions of Section 13 of Act XIV of 1882 apply in these suits. It is true that the parties in these suits were parties in suits Nos. 958 or 959 of 1889, and that each had in one of those suits the opportunity of proving what was due to him. It is true, too, that the Amin found what was due to each. It does not, however, appear that the Court embodied in the decree the finding of the Amin in respect of the sums due to any one but the plaintiffs in those suits.
'It may, perhaps, be said that the matter in issue in these suits was not heard and finally decided in suits Nos. 958 and 959. On the other hand, it may fairly be said that plaintiffs assert that that matter was finally decided, and that they base their claims on that decision. This is true, and I think that it is not open to plaintiffs to base their claims on the findings in suits Nos. 958 and 959, and then to say that the questions raised were not finally decided.
But there are other reasons which seems to me to afford good grounds for the Munsif's orders. The suits now under consideration are not brought on the lines of a suit for dissolution of partnership. In Prosad Das Mullick v. Russick Lal Mullick I.L.R. 7 Cal. 157 (163) there is as follows: 'Now, in the first place, it is a settled principle that a separate action by one partner against another partner will not lie unless the cause of action is so distinct from the partnership accounts as not to involve their consideration.' It seems to me that when one partner sues other partners respecting their joint business, he must sue on the lines laid down in Form No. 113 of the Fourth Schedule of Act XIV of 1882. In such a suit each partner can recover what is due to him. It certainly seems hard that the plaintiffs in these suits should be unable to recover what the Amin found was due to them, but I think the lower Court is right in holding that such suits will not lie.
' It appears that if a suit had been brought for the dissolution of partnership, or the winding-up of accounts, it would not have been within the jurisdiction of the Munsif, The amount in suit would have exceeded Rs. 1,000. All the appeals are dismissed with costs.'
18. In second appeal it is argued that the lower Courts are wrong in holding the suit to be barred by Sections 13 and 43 of the Code of Civil Procedure.
19. Secondly.-That if the principle of res judicata applied at all, it was in the plaintiff's favour, and operated to prevent the defendant from pleading that the suit as framed would not lie.
20. Thirdly.-That the Lower Appellate Court was wrong in holding that the . only form of suit open to the plaintiff was one for winding-up the partnership under Section 265 of the Contract Act in the form prescribed in Form 113 to Schedule IV of the Code of Civil Procedure.
21. Fourthly.-That the Lower Appellate Court was wrong in holding that the Munsif's Court would have had no jurisdiction to try the suit if it had been brought under the provisions of Section 265 of the Contract Act in the form prescribed in Form 113 to Schedule IV of the Code of Civil Procedure.
22. It was also urged that, even if the suit was badly framed, if it was not barred, the plaint should be returned for amendment.
23. I am of opinion that Section 13 of the Code of Civil Procedure is no bar to the present suit.
24. In suits Nos. 958 and 959 of 1889 the then plaintiffs claimed specific sums from the then defendants, and they obtained decrees for specific amounts. The issue raised in this suit, viz., the right of the present plaintiff' to recover a specific amount from the now defendants, was neither directly and substantially in issue in those suits, nor even constructively. I am also of opinion that Section 43 of the Code of Civil Procedure does not bar the suit. The provisions of that section can only apply when the plaintiff is the same in both suits. In support of his second contention the learned vakil for the appellant pointed out that the frame of the present suit was to all intents, and purposes the same as the frame of suits Nos. 958 and 959 of 1889; that the only material point of difference was that in the present suit a specific amount is claimed upon the allegation that the accounts had been adjusted in the presence of all the parties, whereas in the former suits a specific amount was claimed after adjustment of the accounts; that an issue was distinctly raised as to whether the suits were properly framed having regard to the provisions of Section 265 of the Contract Act, and decided in favour of the plaintiffs. This argument was not, as far as I can gather, addressed to the learned Judges who first heard the appeal, and, having regard to the view I take of the learned vakil's other contentions, it is not necessary to express an opinion upon it.
25. With respect to the third and fourth contentions of the learned vakil for the appellant, I entirely concur with the observations of Banerjee, J., to which I cannot usefully add anything. 1 also agree with that learned Judge in the conclusion he has arrived at as to the returning of the plaint for amendment.
26. The suit out of which this appeal arises was brought by the plaintiff appellant on the allegation that he and the defendants were members of a partnership for carrying on trade in hemp, etc., which was started in 1292 and wound up in Chait 1294; that the share of the plaintiff in the business was 15 gundas; that in 1889 two suits were brought, being suits numbered 958 and 959, by certain of the defendants, who are among the pro forma defendants, against the plaintiff, and the remaining defendants, in which the accounts were adjusted by the Civil Court Amin, and the debts and dues of all the partners were determined by the Court as mentioned in Schedule II of the plaint; and that, according to the said accounts, a sum of 233 rupees 11 annas 5 gundas was due to the plaintiff in his 15 gundas share, which the defendants, notwithstanding repeated demands, have failed to pay; and the prayer of the plaintiff is that a decree may be given to him against the principal defendants for the said amount, or for such other relief as the Court may deem proper.
27. The defence, inter alia, was limitation and denial of plaintiff's claim.
28. The issues upon which the parties went to trial in the first Court were these:
First.-Is the suit barred by Sections 43 and 13 of Civil Procedure Code?
Second.-Is the suit barred by time?
Third.-Which of the parties are liable to pay, and to whom; and, if so, for what amount?
29. The first of these issues was framed by the learned Munsif, as he says, in his judgment, of his own motion, though the defendants did not raise the point. He decided this issue against the plaintiff, and dismissed the suit without determining the other issues.
30. On appeal by the plaintiff, the Lower Appellate Court, while expressing doubts as to the correctness of the Munsif's decision, has nevertheless affirmed his decree, dismissing the suit on these grounds, namely, that the plaintiff, having based his claim on the decision in the former suits, could not be permitted to say that the question now raised had not been heard and finally determined; that the frame of the suit, moreover, was bad, it not having been brought as a suit for dissolution of partnership; and that, if the suit had been brought in proper form, the Munsif's Court would not have had jurisdiction to try it.
31. In second appeal it is contended for the plaintiff appellant:
First.-That the lower Courts are wrong in holding that the suit is barred by Sections 43 and 13 of the Code of Civil Procedure;
Secondly.-That the Lower Appellate Court is wrong in holding that the Munsif's Court would have no jurisdiction to try the suit if it was brought in proper form; and
Thirdly.-That the Lower Appellate Court was wrong in holding that the frame of the suit was bad, and that even if there was any defect in the form of the suit, it ought to have amended the plaint on such terms as to costs as would be just and proper, by the omission of the statement that the dues of all the partners had been determined in the former suit, and by the insertion of an alternative prayer for a decree for an account.
32. The first contention of the appellant is, in my opinion, quite correct. Section 43 of the Code of Civil Procedure can bar a second suit only when the plaintiff in that suit was also the plaintiff in the first. Here the plaintiff in the present suit was a defendant and not a plaintiff in the former. Section 43 can, therefore, have no application to this case. Nor can Section 13 of the Code be a bar to this suit, for this simple reason, that the matter now really in issue, namely, that involved in the question whether the plaintiff is entitled to recover any thing from any of the defendants, was not heard and finally decided in the former suits either actually or constructively within the meaning of Explanation iii.
33. The second contention of the appellant is, I think, equally sound. The learned District Judge says: 'It appears that if a suit have been brought for the dissolution of partnership, or the winding-up of accounts, it would not have been within the jurisdiction of the Munsif. The amount in suit would have exceeded Rs. 1,000.' But there being no dispute that the partnership was dissolved some years ago, no suit for dissolution of partnership was necessary. And if a suit for winding-up of accounts had been brought under Section 265 of the Contract Act, or if the present suit be treated as a suit for an account, still, having regard to the amount at which the relief sought is valued, it would be within the jurisdiction of the Munsif. For such a suit, the Court-fee is payable ad valorem under Section 7, paragraph iv, Clause (f) of the Court Fees Act. [See Ludubhai Premohand v. Revichand Venichand I.L.R. 6 Bom. 143), and that being so, under Section 8 of the Suits Valuation Act (VII of 1887), the value for purposes of jurisdiction is the same as that for the computation of Court-fees, that is, it is the amount at which the relief sought is valued, which is here within the pecuniary jurisdiction of the Munsif.
34. As regards the third contention, as I have said above, no suit for dissolution of partnership was necessary or maintainable, it being undisputed that the partnership has terminated. Nor was a suit for winding-up the affairs of the partnership necessary or sustainable, seeing that it is neither alleged nor suggested by either side that there are any debts due from the firm to any third party, and seeing also that some of the members of the partnership have, after dissolution of the partnership, already brought suits and obtained decrees for their shares of the partnership assets, and the rights and obligations of the partners can no longer, therefore, be regarded as continuing as contemplated by Section 263 of the Contract Act. It is also open to question whether a suit for an account would lie. In the former suit, to which all the partners were parties, it was proved that a nikas was effected through the creditors of the parties; that nikas was examined by the Civil Court Amin, who prepared an account, and a decree was made in favour of the plaintiff's in that suit upon the basis of that account. Moreover, defendant No. 10, the only defendant who put in any defence in this suit, urges in paragraph 6 of his written statement, that the accounts were closed up to 1295 B.S. Now, to an action for an account of partnership transactions, an account already stated and settled between the parties would be a good defence. See Taylor v. Shaw (2 Sim. &. St., 12), Stupart v. Arroivsmith 3 Sm. & G. 176 and other cases cited in Lindley on Partnership, 5th edition, p. 512. The plaintiff, therefore, cannot be blamed much for framing the suit, as he has done, seeking only to recover his share of the profits of the partnership as shown in the accounts prepared in the former suit, without expressly asking for a fresh account and winding-up, and concluding with the ordinary prayer for such other relief as the Court might deem proper to grant.
35. There are, however, two defects in the plaint which might have been avoided, and they are, the insertion of the incorrect statement that the debts and dues of all the partners were determined by the Courts in the previous suits, Nos. 958 and 959 of 1889, and the omission of an alternative prayer for a decree for an account if, in the judgment of the Court, the account prepared in the former suit was not a sufficient basis for a decree for the money which the plaintiff claimed as his share of the profits of the partnership. But I should add that there was some excuse for the insertion of incorrect statement, and the omission of the alternative prayer to be found in the fact that in the former suits the Court accepted the Amin's papers as correct, and based its decree in favour of the plaintiffs in those suits on those papers.
36. The question that now arises for our consideration is whether the suit should be thrown out by reason only of these two defects in the plaint (the other grounds on which the decrees of the Courts below are based being as shown above clearly untenable), or whether the amendment prayed for should be allowed, and the suit remanded to the first Court for trial on the merits. After giving the question my best consideration, I think the latter is the proper alternative to adopt.
37. In the first place, I think the plaintiff appellant is entitled to a remand as of right. The preliminary ground upon which the first Court dismissed his suit is clearly erroneous. Then of the three grounds, namely, res judicata, want of jurisdiction, and error in the form of the suit upon which the Lower Appellate Court has affirmed the decree of dismissal, the first two have been shown above to be altogether untenable, and, as for the third, the only authority cited in its support, the case of Prosad Dass Mullick v. Russick Lall Mullick I.L.R. 7 Cal. 157 is clearly distinguishable from the present case, there having been here two previous suits by certain of the partners, in which accounts were prepared and decrees recovered by the plaintiffs in those suits. Whether those accounts which were prepared in the presence of all the parties to this suit can afford a sufficient basis for a decree in favour of the plaintiffs in this suit is a question which has not yet been tried by either of the Courts below; and the plaintiff appellant is certainly entitled to a decision of the Court on that question. For the purpose of having such a decision at least, there must be a remand. And the question is, therefore, reduced to this, namely, whether, in remanding the case, we should direct the Court of First Instance to amend the plaint as prayed.
38. I think that under Section 53, Clause (c), read with Sections 582 and 587 of the Code of Civil Procedure, we have the power to amend a plaint or to direct the Court below to do so, if we think fit, provided the amendment does not convert a suit of one character into a suit of another and inconsistent character.
39. I think, moreover, that the amendment asked for does not infringe against the above-quoted proviso to Section 53 of the Code. For the suit as framed is one for a certain sum of money, being the plaintiff's share of the profits of a dissolved partnership based on the allegation that the accounts of the partnership have already been adjusted by the Civil Court Amin, and the debts and dues of the partners determined by the Court in two former suits definitely referred to, or for such other relief as the Court may deem fit. The amendment asked for seeks to omit the incorrect statement as to the dues and debts of the partners having been determined by the Court, and to insert an alternative prayer for an account if, in the judgment of the Court, the account prepared in the former suit be not a sufficient basis for a decree for the money which the plaintiff claimed. This, in my opinion, does not alter the character of the suit so as to convert it into a 'suit of another and an inconsistent character' within the meaning of the proviso to Section 53. The suit still remains a suit for money, being the plaintiff's share of the profits of a dissolved partnership, and the taking of an account being only ancillary to the principal relief claimed, and being necessary only in the event of the Court deciding that the account prepared in the former suit, to which all the parties to the present suit were parties, is not a sufficient basis for a decree. Indeed, it may well be doubted whether for such a purpose any amendment of the plaint is at all needed, or whether the general prayer for such other relief as the Court may deem fit may not be sufficient to entitle the plaintiff to ask the Court to go into the accounts if necessary. See Lalla Sheoprosad v. Juggernath L.R. 10 I.A. 74.
40. It only remains now to see whether it is fit and proper that, in the exercise of our discretion, we should allow the amendment and remand the suit. I think it is. The plaint contains all the allegations of fact necessary in a suit for an account, namely, those relating to the parties to the partnership, the share of the plaintiff, and the dates of starting and dissolution of the firm. Then there was, as I have said above, some excuse for the insertion of the incorrect statement now sought to be omitted, about the dues of all the partners having been determined by the Court in the former suit, and for the omission of the alternative prayer for an account now sought to be inserted. Moreover the incorrect statement in the plaint referred to above could not have been made fraudulently, or with intent to overreach, as the suits in which the dues of the plaintiff are stated to have been determined are specifically described by their members, and the judgment in those suits was filed by the plaintiff himself. And though it is true that the suit has been pending for a longtime, the plaintiff is not at all to blame, the delay being due to the Courts below having dismissed the suit on erroneous and insufficient preliminary grounds without going into the merits. The amendment that I would allow cannot, therefore, be said to prejudice the defendants, except in the matter of costs, as to which the Order I should make would be that the appellant should pay to the defendants all the costs incurred by them in all the Courts up to date.
41. If the amendment I propose to allow had resulted in the inclusion of a new claim, now barred if a fresh suit had to be brought, the amendment might be open to the objection that it would prejudice the defendants, and the case of Weldon v. Neal L.R. 19 Q.B.D. 394 might be cited in support of the objection; though even in that case the Master of the Rolls made some reservation in favour of such amendment, 'under very peculiar circumstances' and in the case of Mohummud Zahoor Ali Khan v. Thakooranee Rutta Koer 11 Moo. I.A. 468 their Lordships of the Privy Council allowed an amendment of the plaint, considering that 'a new suit would probably be met by a plea of the Act of Limitation,' and that 'in the circumstances of the case such a defence is inequitable.' But in the present case the amendment does not involve the inclusion of any new claim or cause of action in the suit.
42. In cases like this, I think the right rule to follow is that enunciated by Lord Justice Bowen in Cropper v. Smith L.R. 26 Ch. D. 710, where that learned Judge says: 'I know of no kind of error or mistake, which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such an amendment as a matter of favour or of grace.'
43. Though in appeal (L.R. 10 App. Ca., 259) Lord SELBORNE doubted whether, under the peculiar circumstances of that case, the amendment should be allowed, His Lordship approved the general terms of the observation.
44. The course I propose to take is amply supported by the authority of decided cases in this Court and in the Privy Council. See Mohummud Zahoor Ali v. Thakooranee Rutta Koer 11 Moo. I.A. 468, Joseph v. Solano 9 B.L.R. 441 : 18 W.R. 424, and Ramdoyal Khan v. Ajoodhia Ram Khan I.L.R. 2 Cal. 1 : 25 W.R. 425. It is true that those cases were decided under the old law, but subject, to the proviso to Section 53 noted above, which is not here infringed against, the new law is just the same in this respect as the old. I may also refer to the case of Kurtz v. Spence L.R. 36 Ch. D. 770 in support of the view I take that the amendment applied for should be granted.
45. The result then is, that the case should, in my opinion, go back to the first Court, with direction to that Court to amend the plaint under Section 53 of the Code of Civil Procedure by omitting the statement about the dues of all the partners having been determined in the former suit, and inserting the alternative prayer for an account referred to above, subject to the condition that the plaintiff appellant should deposit in the Court of First Instance, within one month after the arrival of the record there, all the costs incurred by the defendants appellants up to date. If the deposit is not made as aforesaid within the time allowed, this appeal shall stand dismissed with costs.
46. What is said above applies also to second appeals Nos. 951 to 953.
47. But as my learned colleague Mr. Justice RAMPINI takes a different view, and as the points on which we differ are points of law, we think that the cases should, under Section 575 of the Code of Civil Procedure, read with Section 587, be referred to one or more of the other Judges as the Chief Justice may determine. The cases will accordingly be laid before the Chief Justice.
48. The plaintiff in this suit, and the plaintiffs in the analogous suits, sue on the allegations (1) that they were partners in a business which was started in 1292 B.S., and was wound up on the 19th Chait 1294 B.S.; (2) that in suit No. 958 of 1889 brought by the defendant No. 13 and others, and suit No. 259 of the same year brought by the defendant No. 15 and others, to which all the partners in the business were parties, the accounts were adjusted by the Civil Court Amin, and the debts and dues of all the partners were determined by the Court as mentioned in Schedule II; (3) that, according to the said accounts, a sum is due to each plaintiff, which after repeated demands the defendants have failed to pay. Hence they pray that decrees may be passed for these sums or for any other relief which may be deemed proper by the Court.
49. Now in the course of trial before the Munsif, it has been established that these allegations are in the main correct. In suits Nos. 958 and 959 of 1889, as the Munsif says, 'the liabilities of all the parties had been settled, though through the laches of the then plaintiffs they did not obtain decrees for their shares of the money.' Hence, though the present suits may not be barred in so many words by the terms of Section 13 of the Civil Procedure Code, it is yet clear that the plaintiffs on their own shewing are not entitled to the relief they seek for in these suits. They are not entitled to definite sums of money, as they say they are, because no such sums were awarded them in the previous suits. At the same time I must say that it seems to me doubtful whether these suits are not barred by the provisions of Section 13. The previous suits were for the adjustment of the accounts of the partnership. They were adjusted by the Amin, and though the amounts due to the present plaintiffs were not decreed by the Court, this was the present plaintiffs' own fault. They might have asked the Court to give them decrees for the sums which the Amin found to be due to them, and they would have got them. Hence there is at least ground for contending that, under explanations ii and iii to Section 13, the present suits are barred. However this may be, it is admitted that, on the evidence, the plaintiffs are not entitled to the definite sums of money they sue for, and so it has been suggested that we should amend the plaints in these suits, and in the interests of the plaintiffs convert them into plaints for an adjustment of accounts. I do not think that this should be done, because, firstly, I do not think that Clause (c), Section 53, which is the only clause under which the plaints can now be amended, contemplates or allows of the making such serious alterations as it is now suggested we should make in the plaints; and, secondly, I think to do so would be to contravene the provisions of the proviso to Section 53. What it is suggested we should do would seem to me to be not to amend the plaints, but to make new plaints, in which instead of asserting, as the present plaints do, that the debts and dues of all the partners were determined in the previous suits by the Court, it would be necessary to assert the reverse, and to allege that in these previous suits the debts and dues of all the partners were not determined by the Court, and instead of praying that decrees should be given for the sums already found to be due to the plaintiffs, it would be prayed that the accounts of the partnership should be adjusted and decrees should be given for such sums, if any, as the defendants may be found liable for. In short, the amendments which it is suggested we should make or order the lower Court to make, are amendments which, I think, no Court could make for a plaintiff, but are rather such as could only properly be made by his own professional advisers. Then the proviso to Section 53 expressly lays down that a plaint shall not be amended either by the party to whom it is returned for amendment, or by the Court, so as to convert a suit of one character into a suit of another and inconsistent character. But if the Court amends the plaints in these suits and asserts for the plaintiff's that the partnership accounts have not been previously adjusted in contradiction to the present allegations in the plaints, and prays for an adjustment of accounts instead of for definite sums of money, is not this turning the suits into suits of another and inconsistent character? Is it not entirely changing the cause of action of the suits? I think it is.
50. Then it appears tome that Section 53 (c) contemplates the amendment of a plaint in such a manner that, after the amendment is made, judgment may be given there and then. However this may be, it does not, it seems to me, contemplate the remand of a case and the holding of a new trial, as it is proposed that we should order and as indeed must be done in these suits, if the plaintiffs are to get any relief. The provisions in the Code with regard to remands are Sections 562 and 566, and neither of them, in my opinion, would justify our remanding these cases. The suits have been fully tried on the allegations set up by the plaintiffs and on the issues arising out or these allegations. No evidence has been excluded, and no new evidence is required to enable the issues arising on the plaintiff's allegations to be decided. Hence I do not think the suits should be remanded so as to enable the plaintiffs to mend their hands and begin the litigation anew.
51. Further, if we were to accede to the plaintiffs' requests, would it be of any use? Would the suits as altered not be barred under Section 13 of the Civil Procedure Code? The suits would then be suits for adjustment of accounts. The previous suits were suits of this nature. All the parties in the business were partners in the previous suits. The present plaintiffs were defendants in those suits, and therefore may be said not to have asked for any relief in their plaints. But in suits for the adjustment of partnership accounts, as in interpleader suits, surely all the parties are to be regarded as plaintiffs, and as seeking for relief though they may claim it, not in plaints but in written statements.
52. The course which I think should be adopted in these cases is to allow the plaintiffs to withdraw their suits under Section 373 and to give them permission to bring new suits, if they please. They are not anxious to be allowed to do this, as it is apprehended the new suits will be barred by limitation. It is, however, not clear that this will be the case, and anyhow this is not a consideration that need weigh with us.
53. It may be hard from the plaintiffs' point of view that they should have no relief; but if this be the case, it is entirely their own fault. They might have had relief in the previous suits, if they had chosen to ask for it. They might, perhaps, have had relief in the present suits, if they had been properly framed, though the form of the present suits may have been purposely adopted so as to evade the provisions of Section 13. But the plaintiffs chose their own line of attack, and they are responsible if it fails. As the learned pleaders for the respondent have observed, justice is not a monopoly of plaintiffs. Defendants have as much right to justice or indulgence (which is what is wanted in these suits) as plaintiffs. And if the policy of the law is ut sit finis Litis, and it, therefore, enacts that a suit is barred if not brought within a certain time, and that a defendant should not be harassed by repeated suits about the same matter, it would seem to me to be unjust to the defendants in these suits not to allow them the advantage of these provisions of the law.
1 Decision when appeal heard by two or more Judges.
[Section 575: When the appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges.
If there be no such majority which concurs in a judgment varying or reversing the decree appealed against such decree shall be affirmed:
Provided that if the Bench hearing the appeal is composed of two Judges belonging to a Court consisting of mote than two Judges and the Judges composing the Bench differ in opinion on a point of law, the appeal may be referred to one or more of the other Judges of the same Court, and shall be decided according to the opinion of the majority (if any) of all the Judges who have heard the appeal, including those who first heard it.
When there is no such majority which concurs in a judgment varying or reversing the decree appealed against, such decree shall be affirmed.
The High Court may, from time to time, make rules consistent with this Code to regulate references under this section.]