Arthur Wilson, J.

1. We think the view taken of this case by the learned Judgewho heard it is correct. The plaint alleged a partnership entered into betweenthe plaintiff and the original defendant, under which that defendant was to bethe monied partner, the plaintiff was to be the managing partner, and theplaintiff was to have a certain share in the profits ; and the plaint went onto pray relief upon the footing of the partnership and in the manner usual in apartnership suit. The defendant denied the partnership, and said that the realrelation between the parties was not that of partner and partner but of masterand servant, that the plaintiff was a gomastah paid by a share of the profits,and that according to the long understood practice in this country (nowembodied in the Contract Act) he was not a partner. The defendant also raisedanother objection : He said that there were three of them concerned in thematter, that the plaintiff was to have a share in the profits as remunerationfor his service as gomastah, and another man, Nittyanund Hazrah, was to have ashare also under the same agreement, the original defendant being proprietor ofthe business. The case came on for hearing, and the plaintiff applied to havethat man, Nittyanund Hazrah, joined as a defendant in the suit, which was done.There was some discussion before us as to whether the plaintiff under thecircumstances was bound by his suit as a partnership suit. It would certainlybe an unusual thing to allow a plaintiff, who has alleged one state of facts,as against the defendant who has denied that case and alleged another state offacts, to turn round and ask to be allowed to carry on the suit and claimrelief on the ground that the defendants statement of facts was true and hisown false. But supposing that the plaintiff in this suit could be allowed to dothat and to maintain this suit on the footing that he was a gomastah entitledto remuneration for his services by receiving a portion of the profits, stillit is clear that his suit, as originally framed, was defective. This is not acase of one contract between the original defendant and the plaintiff, onehiring of the plaintiff as gomastah upon the terms of his receiving a share inthe profits, and another contract with Nittyanund Hazrah, made separately, bywhich he was hired as a gomastah on the terms of his receiving a share of theprofits. It is a case of three persons who in one document entered into anagreement, by which the business was to be carried on, the original defendantwas to be the proprietor and the plaintiff and Nittyanund Hazrah were to beemployed as gomastahs and by which, as between these three persons, it wasagreed that the principal defendant as proprietor was to have an 11 1/2 annashare, the plaintiff a 3-anna share, and Nittyanund Hazrah a 1 1/2 anna share.That being the state of things, the suit, as originally framed, was clearlydefective, because, when there are three persons who, under one and the sameagreement amongst themselves, are entitled to share in the proceeds of a fundwhich they hope will be brought into existence, it is obvious that all thesethree persons must be necessary parties to a suit, the object of which is totake an account necessary for the purpose of ascertaining the assets of thefund and dividing them. Then it appears that, by the time Nittyanund Hazrah wasmade a party to the suit, the suit, as against him, was barred.

2. Now it has been held more than once that, if a suit isbrought by certain persons as plaintiffs, and they omit in the first instanceto join with them as co-plaintiffs persons who are necessary parties, and theseparties are afterwards added as plaintiffs at a time when for them the claim istime-barred, the whole suit must be dismissed. That was so held in the case ofRamsebuk v. Ram hall Coondoo 6 C. 815 and also Kali Das Keval Das v. NattinBhagvan 7 B. 217. And we can see no distinction in principle between the caseof one who ought to have been originally a plaintiff and the case of one whoought to have been originally a defendant. We think therefore that the viewtaken by the learned Judge who heard the case is correct, and that this appealshould be dismissed with costs.

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Ramdoyal vs.Junmenjoy Coondoo (01.04.1887 - CALHC)



IN THE HIGH COURT OF CALCUTTA

FULL BENCH

Decided On: 15.04.1887

Appellants: Abdul Aziz Khan

Vs.

Respondent: Ahmed Ali

Honble Judges/Coram:

Mitter, Henry Thoby Princep, Arthur Wilson, Loftus RichardTottenham and John Freeman Norris, JJ.

Subject: Tenancy

Catch Words

Mentioned IN

Case Note:

Enhancement of rent. Suit for - Transferabletenure--Mutation of names--Tenant who has transferred his holding, Liabilityof.

JUDGMENT

1. This is a suit for recovery of rent at an enhanced rateafter service of notice. The finding of the lower Courts is that the holding,in respect of which the enhanced rent is claimed had, before the institution ofthe present suit, been transferred by the defendant to a third party who is nota party to it, and that such transfer without the previous sanction of theplaintiff, the landlord, is valid.

2. The main object of a suit for enhancement is to have thecontract between the landlord and tenant as regards the rate of rentre-adjusted. The law allows this re-adjustment in certain cases. In this casethe plaintiff, as found by the lower Courts, was fully aware that the holdingis now the property of a third party and not of the defendant. That being so, asuit for enhancement of rent will not lie against the defendant who has now noconnection with the holding. We, therefore, dismiss the appeal with costs ofboth hearings.

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Abdul Aziz Khan vs.Ahmed Ali (15.04.1887 - CALHC)