1931 (8) TMI 6 - HC - Indian Laws

Summary

Issues Involved:

1. Competence of the plaintiff to maintain the action without his brother.
2. Whether the suit is an action of pure tort or a wrong arising out of a contract.
3. Objection of non-joinder and its timing.
4. Effect of partition on the right to sue.
5. Limitation and the addition of new parties.

Detailed Analysis:

1. Competence of the Plaintiff to Maintain the Action Without His Brother:

The suit was dismissed by the Lower Court on the ground that the plaintiff was not competent to maintain the action in the absence of his brother as a party on the record. When the plaintiff applied to have his brother impleaded, the suit was barred by limitation. The plaintiff and his brother had jointly purchased the village, and the suit was filed based on alleged fraudulent misrepresentation by the defendants. It was argued that the plaintiff alone could not maintain the suit as both promisees must join in an action for breach of contract.

2. Whether the Suit is an Action of Pure Tort or a Wrong Arising Out of a Contract:

The court had to decide whether the action was of pure tort or a wrong arising out of a contract. Torts are wrongs independent of contract, while wrongs arising out of a contract require the same parties as in breach of contract actions. The court referenced legal texts, stating that if the plaintiff must rely on the contract to establish liability, the suit is based on contract. In this case, the misrepresentation was tied to the contract of sale, making it a wrong arising out of a contract.

3. Objection of Non-Joinder and Its Timing:

The objection of non-joinder was raised by the third defendant, who was a minor at the time of the original filing. The objection was taken when he became a major and filed an additional written statement. The court noted that objections on non-joinder must be raised at the earliest possible opportunity. The third defendant complied with this requirement by raising the objection before the settlement of fresh issues. The court also held that the minor was not bound by any waiver of rights made by his guardian.

4. Effect of Partition on the Right to Sue:

The plaintiff argued that the right to sue passed solely to him due to a partition agreement with his brother. The court rejected this argument, stating that a mere transfer of property does not include the transfer of the right to sue for past wrongs. The right to sue for damages due to deceit remains with the original parties to the contract, and a third party cannot claim damages for deceit practiced upon their vendor.

5. Limitation and the Addition of New Parties:

Section 22 of the Limitation Act was discussed, which states that the addition of a new party is considered as the date of institution of the suit for that party. If a new party is added beyond the limitation period, it is as if they were never added. The court held that adding the plaintiff's brother as a party after the limitation period would not cure the defect of the original suit. As a result, the suit was correctly dismissed by the Lower Court.

Conclusion:

The court confirmed the decree of the Lower Court, dismissing the appeal with costs. The suit was deemed incompetent due to the non-joinder of the plaintiff's brother and the nature of the action being one arising out of a contract, requiring both joint promisees to be parties to the suit.