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Vithaldas Cursondas v. Dulsukhbhai Vadilal
Factual and Procedural Background
The plaintiff commenced proceedings by originating summons seeking: (a) a declaration that a partnership between himself and the four defendants was dissolved in October 1918; (b) an account of the partnership; (c) damages for breach of the partnership agreement from defendants 1 and 2; and (d) an indemnity for liabilities incurred in dealings with one Lallubhai. The defendants applied to dismiss the summons under R. 223 on the ground that originating summons was not the appropriate form of action. The Court examined the scope of originating summons under the local rules and English authorities and dismissed the summons with costs, referring the parties to proceed by a regular suit.
Legal Issues Presented
- Whether an originating summons is an appropriate procedure to determine disputes arising from the alleged dissolution of a partnership, accounting, claims for damages and indemnity.
- Whether the Bombay rules (and the additions to section 26 of the CPC) permit the determination of disputes involving contested questions of fact by originating summons, given the limits of Order IV, Rule 1 of the CPC and the Court's rules under the Letters Patent and H.129 of the CPC.
- Whether matters requiring extensive oral evidence, discovery and inspection are suitable for determination by originating summons under R.223.
Arguments of the Parties
Defendants' Arguments
- The originating summons should be dismissed under R.223 because this form of action is not appropriate for the matters in dispute.
Plaintiff's / Counter Arguments
- It was contended that the Bombay rules are wider than the English rules and that they permit partners to take out an originating summons; the procedure more closely approximates a regular suit because the rules contemplate pleadings (R.218 requires a plaint and R.221 permits a written statement).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Powers, In re, Lindsell v. Phillips (1) | “A summons is not the proper way of trying a disputed debt where the dispute turns on questions of fact;” | The Court relied on this principle to show that English practice excludes the use of originating summons where disputes turn on questions of fact. |
| Giles, In re, Real and Personal Advance Company v. Michell (2) | That originating summons procedure “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 matter which involves a serious question.” | The Court cited this to underscore that originating summons is for summary, simple matters and not for serious disputes involving complex questions of fact. |
Court's Reasoning and Analysis
The Court observed that, although section 26 of the CPC was amended to allow this form of action in certain cases, Order IV, Rule 1 of the CPC requires suits to be instituted by plaint and the availability of originating summons depends on rules made by this Court under the Letters Patent and H.129 of the CPC. Those rules generally follow English practice, which confines originating summons to questions of construction of deeds and wills, administration of estates or trusts, and vendor-vendee requisitions/objections. English authorities establish that originating summons is inappropriate where questions of fact are in dispute. While the Court accepted that the Bombay rules are broader—permitting pleadings (R.218 and R.221) and allowing partners to take out an originating summons—it held that originating summons remains unsuitable where disputed facts are sufficiently complex to require substantial oral evidence. The Court noted the absence of machinery for discovery and inspection and read R.223 as indicating that the procedure should be confined to matters capable of summary decision. Given that the present case would require considerable evidence on breach of contract and the quantum of damages, the Court concluded originating summons was inappropriate and directed the matter to a regular suit.
Holding and Implications
Summons dismissed.
Consequences: The originating summons was dismissed with costs and the parties were referred to proceed by a regular suit to resolve the disputed factual questions and claims for damages and indemnity. The opinion applies existing principles limiting originating summons to summary matters and does not purport to establish a new broad precedent expanding originating summons beyond the constraints identified by the Court.
1. 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 R. 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 cpc. But as O. 4, R. 1, requires every suit to be instituted by a plaint, a suit cannot be instituted by originating summons under the Code of Civil Procedure. The procedure rests solely on rules made by this Court under the Letters Patent and H. 129 of the CPC. 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 Powers, In re, Lindsell v. Phillips (1) said:
“A summons is not the proper way of trying a disputed debt where the dispute turns on questions of fact;”
2. And again in Giles, In re, Real and Personal Advance Company v. Michell (2) 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 matter which involves a serious question.”
3. 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 R. 218 and a written statement is permitted by R. 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.
4. There is no machinery for discovery and inspection, and R. 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 defendants 1 and 2 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.
G.P/R.K
5. Summons dismissed.
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