- (1.) BY the Court - This appeal has been preferred by Mannalal on his own behalf as well as on behalf of his minor son Kailashchandra against the order of the District Judge, dated 18th October, 1947, remanding the case under O. 41, R. 23, C. P. C. to the court of the Munsif Alwar for disposal according to |law after impleading Ramdayal's legal representative as defendant.
(2.) THE facts of the case are that the plaintiff Modi Ramchandra brought a suit in the original court against Mannalal, Banarsidas, Kailashchandra and Dayanand for the dissolution of partnership and settlement of accounts of the firms named Dayanand Kailashchandra and Ramchandra Mannalal, which was resisted by the defendants inter alia on the ground that one Ram-dayal who was also a partner in the firm was not maintainable. THE Munsif dismissed the suit on the ground that the plaintiff failed to prove that he had a share in the partnership and that he was not entitled to the reliefs claimed On an appeal being taken by the plaintiff to the court of the district Judge the suit was remanded for trial on merits. An appeal was preferred to the High Court of Alwar against the decision of the District Judge with the result that the order of the District Judge was upheld and certain directions were given to the trial court for the conduct of the proceedings. One of the directions was that in order to determine whether Ramdayal had any share in the partner ship business, he should be impleaded as a defendant. When the case went back to the court of the Munsif Alwar, the plaintiff applied for impleading Ramdayal as one of the defendants, and the name of Ramdayal was brought on record, but the plaintiff discovered that Ramdayal had died and so he moved the court for impleading his sons as defendants. The petition of the plaintiff for impleading the sons of Ramdayal was filed six years after the date on which the defendants had refused to show the accounts of the partnership to the plaintiff. It was therefore held by the trial court that the suit was time barred by the provisions of the Limitation act. Consequently the suit of the plaintiff was dismissed. The plaintiff went in appeal to the court of the District Judge, Alwar, who held that the entire suit could not be dismissed as time-barred m rely on the ground that one of the defendants was impleaded after the expiry of the period of limitation. Two of the defendants have now come here in appeal on the ground that the suit should have been dismissed as time-barred. It may be observed that the plaintiff has filed his suit of dissolution of partnership and for settlement of accounts relating to two separate firms, one of the firms is Ramchander Mana-lal in which Ramdayal was not a partner, and the other firm is of Dayanand Kailashchandra in which Ramdayal is said to have had a four-anna share. So far as the question of the dissolution of the firm of Ramchandra Mannalal is concerned, the suit could not have been dismissed on the ground that Ramdayal was not impleaded as one of the defendants. As the suit of the plaintiff is not maintainable on the ground that one of the defendants, who is said to be a partner of this firm, was not impleaded as a defendant before the expiry of the period of limitation. The trial court has placed reliance on A. I. R. 1933 Sind, 121, which is based on 14 Calcutta, P. 791. The District Judge did not follow the decision of 1933 Sind, 121, but relied on the decision in the case reported in A. I. R. 1937 Alld. , 502. 14 Cal. 791, is a very old case. It was decided in the year 1887, and subsequently the provisions of the Civil Procedure Code were amended. That case is therefore not a good authority on this subject. O. 1, R. 9 of the Civil Procedure Code lays down that "no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. " It is therefore not proper to dismiss the suit simply on the ground of non-joinder of one of the defendants who is said to be member of the partnership. Moreover, with all due respect to the learned Judge of that High Court, the principle enunciated in 14 Cal. , 791 also does not appear to be very sound. It has been laid down in that ruling that. "now it has been held more than once that if a suit is brought by certain persons as plaintiffs and they omit, in the first instance, to join with them as co-plaintiffs persons who are necessary parties, and these parties are afterwards added as plaintiffs at a time when for them the claim is time barred, the whole suit must be dismissed. That was so held in the case of Ramsewak vs. Ramlal Kundu and also Kalidass Kowaldas vs. Naini-Bhagwan, and we can see no distinction in principle between the case of one who ought to have been originally a plaintiff and the case of one who ought to have been originally a defendant. " It may be remarked in this connection that it all depends on the nature of the claim. If the claim is a joint one, all the persons entitled to claim the relief are necessary parties to the suit, and the suit cannot be held to be maintainable if one or more of the joint promisees are left out, or are impleaded parties to the suit after the expiry of the period of limitation. The same cannot be true of the joint promisors whose liability under sec. 45 of the contract act is both joint and several. A suit against them would be maintainable even though one or more of the joint promisors are not added as parties. The suit of the plaintiff cannot be held to be not maintainable simply on the ground that one of the defendants has been added as a party after the expiry of the period of limitation, unless it may be shown that without adding him a party to the suit, no relief whatsoever can be claimed by the plaintiff even against the defendants already on record. No opinion can be expressed at the present stage of the case as to the nature of the liability of the defendants whether it is joint and several. This question can be determined by the trial court at the time the accounts are settled. Perhaps each item may have to be gone into in order to ascertain the nature of the liability of the defendants in this behalf. The learned District Judge was not incorrect in placing reliance on A. I. R. 1937 Alld. , 502. The plaintiff has admitted before us at the time of the hearing of this appeal that Ramdayal had a four-anna share in the firm Dayanand Kailashchandra, which was alleged by the defendants from the very beginning. The question of fact whether Ramdayal had any share and if so to what extent does not therefore stand in need of any enquiry. It is now the common case of both the parties that Ramdayal had a four-anna share in the aforesaid firm. The order of the District Judge under O. 41, R. 23 C. P. C. , remanding the case for decision on merits is therefore upheld, and the appeal is dismissed. .;