Vithaldas Cursondas vs Dulsukhbhai Vadilal

Pratt, J.—This is an action instituted by an originating summons in which the plaintiff seeks a declaration that a partnership between himself and the four defendants was dissolved in October 1918�an account of the said partnership� damages for breach of the partnership agreement from defendants 1 and 2 and an indemnity for liabilities incurred in dealings with one Lallubhai.

The defendants object that the summons should be dismissed under Rule 223 as this form of action is not appropriate to the matters in dispute.

Provision was made for this form of action by the addition of appropriate words in Section 26 of the Civil Procedure Code. But as Order IV, Rule 1, requires every suit to be instituted by a plaint a suit cannot be instituted by originating summona under the Civil Procedure Code.

The procedure rests solely on rules made by this Court under the Letters Patent and Section 129 of the Civil Procedure Code.

These rules generally follow the English procedure which is enacted in the Rules and Orders of the Supreme Court. These limit the procedure to the determination of questions of construction of deeds and wills, of questions arising in the administration of an estate or trust and of questions arising out of requisitions and objections made between vendor and vendee of land.

As to the English procedure it seems clear that it does not apply where questions of fact are in dispute. Lord Lindley in the case of In re Powers (1880) 30 Ch.D. 291 said:�" A summons is not the proper way of trying a disputed debt where the dispute turns on questions of fact"; and again in In re Giles (1890) 43 Ch.D. 391, Cotton L. J. said that this form of action "was intended...to enable simple matters to be settled by the Court without the expense of bringing an action in the usual way, not to enable the Court to determine matters which involve a serious question."

It is contended that these authorities do not apply as the Bombay Rules are wider. There is some force in this contention for our rules go further than the English rules and allow a partner to take out an originating summons and the procedure approximates more nearly to that of a regular suit for the rules contemplate pleadings. A plaint is required by Rule 218 and a written statement is permitted by Rule 221.

The rules do not forbid questions of fact being determined on an originating summons and I am not prepared to hold that this form of action is always inappropriate whenever there is a question of fact in dispute.

But I think it clear that an originating summons is not the proper procedure where the disputed facts are of such complexity as to involve a considerable amount of oral evidence. There is no machinery for discovery and inspection and Rule 223 indicates that the action should be confined to matters which are capable of decision in a summary way.

In the present case considerable evidence will have to be taken both as to the breach of contract alleged against the first and second defendants and the quantum of damages for which they are liable.

I, therefore, dismiss this summons with costs and refer the parties to a regular suit.