Prakash Kaur vs S. Mohan Singh And Ors.
1991 Latest Caselaw 55 Del

JUDGMENT

P.N. Nag, J.

(1) This revision petition is directed against the order dated 7th December, 1989 passed by Shri P.D. Jarwal, Sub Judge 1st Class, Delhi dismissing an application filed on behalf of the petitioner under Order I Rule 10 of the Civil-Procedure Code, 1908 praying for transposition of plaintiff No. 2 as defendant No. 5.

(2) The petitioner-plaintiff along with Ajit Singh had filed a suit for dissolution of the partnership and rendition of accounts between the partners. According to the petitioner, Shri Ajit Singh was a partner in the partnership although this fact is disputed by the learned counsel for the respondents. The learned Sub Judge has disallowed this application mainly on the ground' that Shri Ajit Singh, plaintiff No. 2, has compromised with the defendants-respondants and on 18.11.1988 the order was passed and it was held that it was not necessary to give notice to the other plaintiff because it was a request for the compromise and in the opinion of the court if the plaintiff was 'aggrieved by the withdrawal of Shri Ajit Singh from the suit, he might file fresh suit against him as one of the defendants.

(3) In the application filed by the petitioner under order I, Rule 10 read with Section 151 of the Civil Procedure Code, 1908 the prayer made by the petitioner-plaintiff No. 1 is that the name of Shri Ajit Singh, plaintiff No. 2 in the plaint, may be struck off and added as defendant No. 5 and the proposed amended plaint appended thereto may be taken on record. It appears the learned trial Court has not considered the proposed amendments as there appears to be no application filed for amendment although amended plaint has been filed. The suit of plaintiff No. 2 already stands compromised and a decree passed in terms thereof and no proceedings have been taken by plaintiff No. 1 for setting aside the said decree. In these facts and circumstances, there can be perhaps some objection for transposing the name of plaintiff No. 2 as defendant No. 5, but there appears to be no objection for impleading him as defendant No. 5 in the suit in case his presence is necessary in order to enable the court to effectually and completely adjudicate upon and decide all questions involved in the suit. The application already filed under Order 1, Rule 10 of the Civil Procedure Code, 1908 can be treated as an application for impleading original plaintiff No. 2 as defendant No. 5 in the proposed amended plaint instead of transposing him as defendant No. 5.

(4) On the oral prayer of counsel for the petitioner, I allow that application to be treated as an application under Order 1, Rule 10 of the Civil Procedure Code, 1908 for impleading Shri Ajit Singh, as defendant No. 5. However, for impleading defendant No. 5 under Order 1, Rule 10 of the Civil Procedure Code, 1908 it would be necessary to find out whether the presence of Sh Ajit Singh as defendant No. 5 shall be necessary for effectually and completely determining the matter in dispute between the parties for which purpose the plaint has necessarily to be suitably amended. As already stated no application has been filed by the plaintiff. It is settled principle of law that in a partnership suit all the partners or their legal representatives must be made parties because all the parties necessary for the disposal of the subject- matter of the suit including taking of accounts must be before the Court or the suit will fail.

(5) In the light of this, there can be no objection, Shri Ajit Singh is added as defendant No. 5 provided the plaint is suitably amended. Counsel for the petitioner wants to move an application for amendment of the plaint before the trial Court. Let the application be filed within four weeks from today and in case such an application is moved, that application along with the application under Order I, Rule 10 of the Civil Procedure Code, 1908 shall be considered afresh and disposed of in accordance with the law. The order passed by this court dated 7.12.1989 shall not stand in the way of the trial Court in taking a fresh decision in accordance with law on both the applications, ie..amendment application and the application under Order 1, Rule 10 of the Civil Procedure Code, 1908.

(6) In the light of the above the civil revision stands disposed. No costs.

(7) The trial Court record be sent back.