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Kamini Mohan Basu and ors. Vs. Nibaran Chundra Mitra and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal506,76Ind.Cas.577
AppellantKamini Mohan Basu and ors.
RespondentNibaran Chundra Mitra and ors.
Cases ReferredPramada Nath Roy v. Ramani Kanta Roy
Excerpt:
civil procedure code (act v of 1908), order i, rule 9 - non joinder--suit by one of two partners--second partner made co-defendant--decree form, of. - 1. this is an appeal by the first defendant in a suit for recovery of money due as the price of jute supplied by the plaintiffs' to the first four defendants. the plaintiffs alleged that the first four defendants had a joint business known as lachman jute company, and were supplied with jute from time to time. he accordingly claimed rs. 904-9-o as due on account of the price of jute. the fifth defendant was joined on the allegation that he had acted as a broker in the transaction and that as it had been asserted that he had received some money on this account from the other defendant, it was desirable that the matters in issue should be decided in his presence. the fifth defendant pleaded that, he was not a broker but a partner of the plaintiff, and he offered to join as a co-plaintiff......
Judgment:

1. This is an appeal by the first defendant in a suit for recovery of money due as the price of jute supplied by the plaintiffs' to the first four defendants. The plaintiffs alleged that the first four defendants had a joint business known as Lachman Jute Company, and were supplied with jute from time to time. He accordingly claimed Rs. 904-9-o as due on account of the price of jute. The fifth defendant was joined on the allegation that he had acted as a broker in the transaction and that as it had been asserted that he had received some money on this account from the other defendant, it was desirable that the matters in issue should be decided in his presence. The fifth defendant pleaded that, he was not a broker but a partner of the plaintiff, and he offered to join as a co-plaintiff. This offer was apparently ignored. The result was that there was an investigation of the price of jute supplied to the first four defendants, which the Trial Court found amounted to Rs. 270-13-0. The Court then proceeded to make a decree in favour of the plaintiff for one-half of this sum on the ground that as the jute belonged to a partnership, of which the plaintiff and the fifth defendant were partners, the plaintiff was entitled to one-half of the debt. The defendants were apparently satisfied with this decree. The plaintiff, however, appealed, with the result that he was allowed a decree for the whole sum of Rs. 270-13-0. The first defendant has now appealed to this Court, and urged that a decree should not have been made for more than one-half of the price of the jute. We are of opinion that this contention cannot be supported.

2. It is true that the fifth defendant was not joined as a party on the allegation that he was a partner of the plaintiff. That fact, however, transpired in the evidence, and is not now challenged. The question thus arises, whether there should be a decree for the whole sum in favour of the plaintiff and the fifth defendant jointly. The first four defendants have no concern with the partnership. They cannot urge that the plaintiff should have a decree for only one-half of the sum due from them, because the fifth defendant is not joined as a plaintiff. The view we take is supported by the well established principle applied in Cullen v. Knowles (1898) 2 Q.B. 380 : 67 L.J.Q.B. 821 and In re Mathews, Oates v. Mooney (1905) 2 Ch. 460 at p. 469 : 74 L.J. Ch. 656 : 9 L.T. 158 : 5 W.R. 75. The same question was considered by a Full Bench of this Court in the case of Pyari Mohun Bose v. Kedarnath Roy 26 C. 409 : 3 C.W.N. 71 : 13 Ind. Dec. (N.S.) 864 where it was ruled that if two parties contract with a third party, a suit by one of them making the others co-defendants, ought not to be dismissed, merely because the plaintiff has not proved that the co-defendant had refused to join as a co-plaintiff. In support of this proposition reliance was placed on the case of Luke v. South Kensington Hotel Co. (1879) 11 Ch. D. 121 : 48 L.J. Ch. 361 : 40 L.T. 638 : 27 W.R. 514. The same view was affirmed by the Judicial Committee in the case of Pramada Nath Roy v. Ramani Kanta Roy 35 I.A. 73 : 35 C. 331 : 12 C.W.N. 249 : 10 Bom. L.R. 66 : 7 C.L.J. 139 : 18 M.L.J. 43 : 3 M.L.T. 101 (P.C.). In the case before us, on the facts found, the decree should have been made in favour of the plaintiff and the 5th defendant. This, however, does not assist the appellant, because he has to pay the whole sum decreed by the lower Appellate Court; it is no relief to him to know that the sum is decreed in favour of the plaintiff and the fifth defendant jointly, rather than in favour of the plaintiff alone.

3. The result is that, subject to this modification, namely, that the decree will be a joint decree in favour of the plaintiff and the fifth defendant, the decision of the Court below will stand and this appeal will be dismissed with costs.

4. The cross-objection is not pressed and is, therefore, dismissed.


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