Ralph Macdonald & Co. V. The Colombo Hotels Company

1916 Present : Shaw J. and De Sampayo J.

RALPH MACDONALD & CO. v. THE COLOMBO
HOTELS COMPANY.

22 and 12-D. C. (Inty.) Colombo, 41,574.

Discovery of documents-Interrogatories-Trial of issues of law before ordering discovery of documents-Partnership-Joinder of retired partners in actions by or against partners when necessary-Civil Procedure Code, ss. 17, 18, 102, 109, 147.

The defendants moved for an order for the discovery of certain documents. The plaintiffs objected to the discovery sought, on the ground that certain issues of law should be first determined, and which, if determined in their favour, would render the discovery sought unnecessary. The District Judge upheld the objection.

Held, on appeal, that as there was no preliminary issue of law which might dispose of the action, the District Judge was wrong  in refusing to order discovery.

A retired partner ought, generally speaking, to join as a plaintiff, or be joined as a defendant, in every action to which, had he not retired, he would have been a necessary party.

But if on the retirement of a partner the debts due to the old firm are assigned to the new firm by writing, as provided by section 25 of the Judicature Act of 1873, the new firm can sue in respect of them.

THE facts are set out in the judgment.

Bawa, K. C. (with him F. J. de Saram), for appellants.

Elliott (with him Samarawickreme), for respondents.

Cur. adv. vult.

February 27, 1916. SHAW J.-

Ralph These are two appeals from interlocutory orders of the District Judge. The first is by the defendants, from a refusal of the Judge The Colombo to order discovery of certain documents, on the ground that the application is premature, and from a refusal of the Judge to order the plaintiffs to answer certain interrogatories, on the ground that some are premature and others irrelevant. The second is by the plaintiffs, from an order of the Judge directing the plaintiffs to add certain persons as plaintiffs, and directing that if they decline to be added as plaintiffs they must be made defendants.

I will deal first with the defendants' appeal.

The action is brought by the plaintiffs, as members of a firm of (Ralph Macdonald & Company) building contractors, with whom the defendant company have entered into an agreement for the performance of certain work, for Rs. 251,108.67, damages for alleged wrongful cancellation of the agreement. The defendants by their answer pleaded that one of the plaintiffs, Mr. G. F. Stevens, was employed by them as their architect in respect of the work, and that it was on his recommendation that they entered into the agreement sued on. That he had falsely and fraudulently misrepresented to the defendant company his interest in the firm of Ralph Macdonald & Company, and concealed from them the fact that other members of his firm of Stevens & Company were members of the firm of Macdonald & Company, whereas the two firms were in fact practically one. They further alleged misrepresentation as to the cost of the work, and alleged that by means of false and fraudulent misrepresentations' as to the qualities and materials used in the additions and extensions of the contract work, the plaintiffs had obtained payments to which they were not entitled, and claimed in reconvention Rs. 300,000, and damages for misrepresentations. The allegations in fact amount to a charge of fraud against the plaintiffs, which, if proved, would entitle the defendants to rescind the agreement and recover damages.

The discovery sought is of documents relating to the formation of the plaintiffs' firm and of accounts and documents relating to the contract sued on, sub-contracts entered into by them with other people for the performance of the work, and the prices paid for materials used in the buildings for extras.

Objection was taken by the plaintiffs to making the discovery sought at the present stage of t

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