Patna High Court
Sheo Lal Sahu And Anr. vs Sagar Mal on 24 April, 1917
Equivalent citations: 40IND. CAS.108, AIR 1917 PATNA 246
JUDGMENT Atkinson, J.
1. This second appeal comes before us from the decision of the District Judge of Gaya, reversing the decree pronounced by the Subordinate Judge dismissing the plaintiff's claim in this suit.
2. The plaintiff and the defendants Nos. 3 and 4 are members of a partnership carrying on business under the style and title of "Anand Mall Sagar Mall," the business being that of sloth merchants.
3. The partnership dealings commenced on the 29th October 1906, and continued up to the 15th of March 1911; but the partnership does not seem to have been dissolved. The defendants Nos. 1 and 2 are father and son, members of a joint family carrying on business. These defendants Nos. 1 and 2 had dealings with the plaintiff's firm and they contracted a debt which prior to the time of action amounted to Rs. 1,020-9-6. There was a dispute as to this amount and eventually the defendant No. 1 signed the partnership account book admitting his liability to the amount claimed, and agreeing to pay interest at the rate of 12 annas per cent. per mensem upon the amount so admitted by him to be due until payment. Thus at the time that this suit was instituted a debt of Rs. 1,296-3 6 was due by the defendants Nos. 1 and 2 to the partnership.
4. The learned Subordinate Judge dismissed the case on the ground that he found on issue No. 4 that the suit was improperly constituted. In the suit as constituted in its present form the plaintiff sues in his own name as one member of the firm and named the defendants Nos. 1 and 2 aa debtors to the firm. He also named as party defendants the defendants Nos. 3 and 4, who are his joint co-partners. The scheme of the plaint clearly shows that the plaintiff was seeking to recover the debt in suit as a debt due to the partnership. It is well settled that one partner cannot alone sue to recover a debt due to the partnership; but it is equally well settled that a partner may use the name of his firm and the names of his co-partners to enable him to recover a debt due to the partnership firm; and that any individual member of a partnership who is unwilling to join in recovering the debt has only a right to claim as against the partner who desires to sue an indemnity for costs. Now in the form in which this plaint was prepared 1 think that the Subordinate Judge was right in holding that the suit was not properly constituted. The Subordinate Judge, however, did not dispose of any question of fact, having dismissed the suit on the preliminary ground. The learned Judge in appeal came to the conclusion that the suit was one really by the firm to recover a debt due to the firm; and as all the parties to the partnership business were on the record he considered he could give a decree, and decide the outstanding question of fact which had not been determined by the Subordinate Judge; and the learned Judge on appeal accordingly pronounced a decree in favour of the partnership firm and directed that the defendants Nos. 1 and 2 should pay costs to the plaintiff personally. Now the relief which was given by the learned Judge in appeal was substantially right; but in order to make the record conform with his judgment it is essential that the record must be amended. The learned Judge if he wanted to give the relief which he has given by the order he has made should have, 1 think, amended the record so as to bring it into harmony with the judgment of the Court,
5. We think it is open to us to make the necessary amendment in the record so that it may accord with the decision arrived at by the learned judge. Order I, Rule 10, gives very wide powers to the Court to amend the record; and this is a case in which we think we are justified in applying its provisions. We do not intend to make a person a party as plaintiff against his will. All that we shall decide is that the plaint be amended by describing the partnership firm as plaintiff and specifying in paragraph No. 1 of the plaint the names of the members constituting the partnership; and we shall strike out of the record the names of the defendants Nos. 3 and 4 as defendants to the suit. Thus the record will be brought into harmony with the judgment of the learned Judge in appeal, the partnership firm suing to recover the partnership debt, the suit being instituted by one partner in the name of the firm on behalf of the other partners. This is a mere technicality and affords no prejudice to the defendant No. 2, and thus with the record amended the decree will stand. The authority for the proposition of the law which we have laid down will be found in the case of Seal v. Kingston (1908) 2 K. B. 579 : 77 L.J.K.B. 965 : 99 L.T. 504 : 24 T.L.R. 650. At page 582 the Court of Appeal says: "One of several partners has a clear right to use the names of the other partners. If they object to their names being used, they may apply for an indemnity against the costs to which they might be subjected by the use of their names."
6. Accordingly we shall disallow this appeal but we will direct that Sagar Mal shall pay to the defendant No. 2 his costs of this appeal. The defendant No. 2 will pay to the plaintiff personally the costs in the lower Appellate and in the Court of First Instance as the surviving joint debtor, defendant No. 1 having died pending the suit.
Chapman, J.
7. I agree.