Paras Das vs Prem Chand

Saunders, J.—This second appeal has arisen out of a suit brought on the following allegations. The plaintiff and the defendant and a third person Kesar Prasad were partners carrying on a business in cloth, and on 24th of Asin 1337 Fasli (corresponding to 12th October 1929) the partnership was dissolved after an account had been taken of the profits and losses of the business and on that date the defendant acknowledged liability to the plaintiff in respect of the sum of Rs. 864. It is alleged that in October 1930, the defendant paid Rs. 2 to the plaintiff. The suit was for recovery of the sum said to have been acknowledged by the defendant to be due from him to the plaintiff with interest thereon. The said person said to have been a partner of the firm was not made a party to the suit. The defendant denied that there had been any partnership, and contended that he had only been a servant of the firm. He al so denied that there had been any settlement of account or that he made any payment to the plaintiff. The suit was dismissed by the trial Court which found that the plaintiff had failed to prove that the defendant had been a partner of the firm or that there had been any settlement of account or that any payment of money had been made by the defendant. The plaintiff appealed to the District judge who upheld the finding of the Munsif regarding the alleged adjustment of account and the payment of Rs. 2 in October 1930. He found however that the defendant had been a partner of the firm. One would have expected that the result of the first two findings of the lower appellate Court would have been a dismissal of the appeal. The learned District Judge however observed:

The result therefore is that the defendant was a partner of the firm started by the plaintiff and there was no regular adjustment of account. It appears to mo that the important question of dissolution of the partnership though pleaded in the plaint was lost sight of by the parties and also by the trial Court. There ought to have been a specific issue as to whether the partnership business was dissolved by any act of the parties. As there was no issue on the point the parties did not adduce evidence regarding it. Having regard to my observation on point No. 1, which I have decided in favour of the plaintiff, it is necessary to determine whether the partnership business was dissolved by any act of the parties. If not, it should be dissolved by an order of Court and necessary orders should be passed for determining the mutual liabilities. As evidence is wanting on this point I have no other alternative but to remand the case to the learned Munsif to determine, after giving an opportunity to the parties to adduce evidence on the question of alleged dissolution of partnership, whether as a matter of fact the partnership was dissolved as alleged by the plaintiff? If the learned Munsif holds that partnership was not dissolved in that case he should pass necessary orders dissolving the partnership business and ascertain the mutual liabilities of the parties-either himself or by the issue of the commission at the instance of the plaintiff and then dispose of the case according to law.

The second appeal is by the defendant. A preliminary objection is taken by Mr. Bose on behalf of the respondent that no appeal lies against this order of remand made by the lower appellate Court in exercise of its inherent powers. The question whether an appeal lies or not would seem to depend on the question whether the lower Court has conclusively determined the rights of the parties with regard to any of the matters in controversy in the suit. In the present case the learned District Judge has clearly done so. He has decided that the defendant is a partner of the firm and that he is liable to render an account. The learned District Judge has virtually directed the trial Court to pass a preliminary decree for accounts. Even however if an appeal does not He, the matter could properly, in my opinion, be dealt with by this Court in exercise of its powers of revision. The learned District Judge''s order has entirely altered the character of the suit. The suit was for recovery of a specific sum of money alleged to have been acknowledged to be due to the plaintiff on a particular date after a dissolution of the partnership whereas the suit has now been converted into a suit for dissolution of partnership and for an account. It is difficult to understand what precisely the learned Judge meant when he observed that:

the important question of dissolution of the partnership though pleaded in the plaint was lost sight of by the parties and also by the trial Court.

The plaintiff stated in the plaint that the partnership had been dissolved on a specified date, but as the defendant denied that there ever had been a partnership, an issue on that point could hardly have been framed. If there had been a partnership and it had not been dissolved the plaintiff''s suit was misconceived and on the findings of fact arrived at by the lower appellate Court the appeal ought to have been dismissed. Moreover a suit for dissolution of partnership and account cannot be tried in the absence of the alleged third partner Kesar Prasad who cannot now be added as a party because the suit against him is time-barred. I would accordingly allow this appeal, and restore the decree of the trial Court with costs of this Court and the lower Court.

Mohammad Noor, J.

I agree.