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Bhairobux Mangilal Vs. Deokaran and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKolkata
Decided On
Reported inAIR1934Cal253
AppellantBhairobux Mangilal
RespondentDeokaran and ors.
Cases ReferredImperial Pressing Co. v. British Grown Assurance Corporation Ltd.
Excerpt:
- .....see (.....) page, j., had to deal with the following situation. in a suit for dissolution of the firm n. rule one of the defendants was described as johurmull manmull a firm. the technical point was taken that while two persons johurmull and manmull were partners in the firm of n. rule there was in fact and in law no such firm as johurmull manmull and that the period of limitation having elapsed, an amendment substituting their names as individuals would be barred: section 22, lim. act.10. page, j., while fully subscribing to the view (p. 554 of 50 cal.) that the court could not add or substitute a party in the circumstances mentioned came to the conclusion (p. 559 of 50 cal.) that the defendants johurmull and manmull were in the plaint as it originally stood 'sufficiently described'.....
Judgment:

Ameer Ali, J.

1. This suit is a commercial case and, but for unforeseen events would have been tried by the Judge taking commercial caes. I desire to remind attorneys and the public that commercial cases that have come into this list, can on application to me be always marked as such, and it is better that all these cases should be tried as commercial cases.

2. There are three real points in the case. The first is a technical point, that of parties. The second is whether there was a dissolution of a firm carrying on business under the name of Deokran Ramkissen in May 1926 coupled with an adjustment of accounts of that firm and the third is whether, if there was such an adjustment, the debt found due upon that adjustment was guaranteed by another firm Sumburam Protabmull in July 1928. There is a subsidiary point, whether the question of guarantee has not been already decided by the Jodhpur Court and whether that decision is binding under the provision of Section 13, Civil P. C.

3. I will deal with the first point last because the parties are entitled to have my decision upon the questions of fact. I will dispose first of the question of guarantee. This depends upon the oral evidence of Bhairobux and upon the document Ex. F which I referred to at various times as the pink paper, signed by Ramcoomar, the gomastha of Sumburam Protabmull. The onus is undoubtedly upon the plaintiffs to prove both the fact of the guarantee and also authority. As to authority, there is little evidence, assuming I am not bound by the decision of the Jodhpur Court. I do not think that Ramcoomar was merely the cashier. He had authority to do whatever business was done by the firm. On the other hand there is in fact no evidence to show that it was part of the business of this firm to give guarantees. (After examining the facts of the case and the evidence His Lordship proceeded). This is my conclusion. I find therefore there was that no adjustment of the accounts of the firm of Deokaran Ramkissen as a whole in respect of the liability of Deokaran Ramkissen bo Bhairobux Mangilal, for which Deokaran and Ramkissen had agreed to be responsible. Bhairobux, I do not believe.

4. There remains two technical points. The first being as to the effect of the decree of the Jodhpur Court and the second the question of parties. As regards the first question which depends upon the effect of Section 13, Civil P. C, it is not necessary for me to decide. Without having considered the matter with any care, it would however appear to me that the Jodhpur Court did adjudicate upon 'the matter' of the guarantee. This being the only defence raised by the defendants in that suit to the claim upon Hundi, There is lastly the question of parties. Unless, all the partners of the plaintiff firm are parties to this suit Section 45, Contract Act, will preclude the making of a decree. In response to a demand in writing under Order 30, Rule 2, Sub-Rule 1, Civil P. C, the plaintiffs made a declaration declaring Bhairobux and Mangilal as the partners of the plaintiff firm. In point of fact I find that at all material times Hanumanbux was also a partner of the plaintiff firm.

5. What was the reason for leaving him out I do not know. These people have innumerable combinations and for all kinds of reason, firms with different names but the same partners, firms with the same names and different partners and so forth. They take undue advantage of the facilities provided by the law and they must not be surprised if the law sometimes takes advantage of them. Mr. Pugh for the plaintiffs has put in a petition in which without admitting or stating that Hanumanbux is a partner he asks for leave to make a further declaration More than three years have elapsed since the cause of action accrued. The matter depends upon the effect of Order 30, Rule 2 and Section 22, Limitation Act. Rules 1 and 2 of Order 30 have been taken directly from the English practice. In England Rule 2 which is the earlier rule has been largely superseded by Rule 1. In India the professions appear to prefer Rule 2 and in any event this is the rule with which we are immediately concerned. Sub-Rule 3 of this rule reads as follows:

Where the names of the partners are declared in the manner referred to in Sub-Rule (1), the suit shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as plaintiffs in the plaint.

6. The important words

the same consequences in all respects shall follow, as if they bad been named as plaintiffs.

7. What are those consequences?

8. If A, B and C are named as plaintiffs in a plaint they and no other person are the parties to the suit. If it is found that D should also have been made party D may be added or if there has been a mistake D may be substituted in the place of G. This is done under the ordinary rules relating to amendment. By Section 22, Lim. Act, however no new party may be added after the period of limitation has elapsed. In this case it has elapsed. Mr. Pugh relies principally upon two authorities Imperial Pressing Co. v. British Grown Assurance Corporation Ltd. AIR 1914 Cal 53 at p. 585 of 41 Cal. In that case the plaintiff firm being faced by a similar difficulty offered in Court to make a further declaration. Chowdhuri, J., expressed the view that the Court could

allow a party who has made a defective declaration under Order 30 Rule 2 to put in a further declaration making a full disclosure and thus remedy the defect.

9. It is clear that he considered the suit as framed 'defective for non-joinder of parties' but 'that the defect can be cured.'. In that case no point of limitation was taken and none appears to have been involved. The question in this case is whether the defect can be cured after the period of limitation has elapsed. In Sheodoyal Khemka v. Johurmull Manmull : AIR1924Cal74 a case which I have already had occasion to consider in another connection, see (.....) Page, J., had to deal with the following situation. In a suit for dissolution of the firm N. Rule one of the defendants was described as Johurmull Manmull a firm. The technical point was taken that while two persons Johurmull and Manmull were partners in the firm of N. Rule there was in fact and in law no such firm as Johurmull Manmull and that the period of limitation having elapsed, an amendment substituting their names as individuals would be barred: Section 22, Lim. Act.

10. Page, J., while fully subscribing to the view (p. 554 of 50 Cal.) that the Court could not add or substitute a party in the circumstances mentioned came to the conclusion (p. 559 of 50 Cal.) that the defendants Johurmull and Manmull were in the plaint as it originally stood 'sufficiently described' and 'before the Court' and 'parties to the suit.

If an application were made to amend the plaint so as to substitute for Johurmull Manmull the words Johurmull Khemka and Manmull Khemka, such amendment would not be an amendment by which a new party was added, but it would be an amendment merely for the purpose of more clearly describing parties who are already before the Court.

11. One of Page, J's., reasons for coming to this conclusion was that as a matter of law the firm of Johurmull Manmull even if it had existed could not have been a member of the partnership N. R., from which it followed that the words Johurmull Manmull as they appeared in the plaint must be:

merely a description of the individuals Johurmull Khemka and Manmull Khemka admittedly members of the firm N. R.

12. I respectfully agree with the judgment of Page, J., which is in accordance with justice and good sense. The situation would I think in law have been different had the names of the partners of Johurmull Manmull been declared as Johurmull Khemka and Manmull Khemka and a third partner X Khemka had been subsequently discovered and sought to be added. In Lakshmansa Babasa v. Lakshmansa Baboosa AIR 1930 Bom 150 the question now being considered was mooted but deliberately left open. I am therefore relegated to the language of the rule and upon its plain meaning. I feel bound to hold that once partners have been declared the persons whose names have been declared are to be regarded as parties to the suit. Any fresh declaration will be equivalent to the addition of a party.

13. This brings me to the question of practice. Whatever may be the case under Order 30, Rule 1 there appears to be no machinery for a formal variation of a declaration made under Order 30, Rule 2, Chowdhuri, J., in Imperial Pressing Co. v. British Grown Assurance Corporation Ltd. AIR 1914 Cal 53 (at p. 585 of 41 Cal) appears to have considered that the Court would give leave to put in a further declaration and this perhaps is the most convenient course. It appears to me however that there is nothing to prevent a party making a further declaration the effect of which might afterwards fall to be considered by the Court. If made after the period of limitation had elapsed, it would in my opinion be of no effect. The Court would regard the suit as being one by the parties whose names were originally declared. That is the case here. In so far as there has been an application to me to add a party I reject it. The result is that the suit is bad for non-joinder of parties and for this and the other reasons given must be dismissed with costs including reserved costs.


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