OM PRAKASH Vs. LAUTI RAM

JUDGEMENT

(1.) This appeal against the decree passed by the High court of Punjab in second appeal is filed with special leave. ' The plaintiff and the defendants entered into a partnership agreement on 30/10/1947, forworking a farm. Disputes arose between the partners and the plaintiff's sued for dissolution and account of the partnership. A preliminary decree was passed on 30/06/1952, and accounts were directed to be taken. The Trial court passed a decree in favour of the defendants for a sum of Rs. 2,488-7-9 due on taking the account of the partnership transactions. The Trial court dismissed the defendants' claim that they were entitled to get a lease in respect of an area of land in respect of which there was a covenant in the partnership deed because the covenant was indefinite. In appeal to the District court the order passed by the Trial court dismissing the defendants' claim for allotment of land by way of lease was rejected. The plaintiff's appeal against the amount decreed against him was allowed and it was declared that nothing was due on taking account of the partnership dealing to either party. The defendants appealed to the High court of Punjab. In appeal the High court observed that Ext. D/2 which is the book of account on which reliance was placed by the plaintiff had uniformly been accepted by the parties as the basis on which the partnership transactions were carried out. The High court further held on an interpretation of the terms of the agreement that there was no indefiniteness in the principal terms of the agreement. In the view of the High court "the area of land to be let out was of plaintiff's volition or defendants' choosing with upper limit of 150 bighas the lower limit of 100 bighas". The price of the land and the share of the crops were also, in the view of the High court determinable keeping in view the prevailing market rate. Even though these terms were not defined the High court was of the view that the contract could not fail either because the period of lease had not been indicated or the other terms were not definitely set out in the partnership agreement. The High court accordingly set aside the decree passed by the District court and remanded the case for taking an account on the footing of Ext. D/2 and also for determination of the area of land which was to be given to the defendants under the terms of the agreement. The plaintiff approached this court with special leave.

(2.) Article 136 of the Constitution does not give a right to a party to appeal to this court. Normally this court will entertain an appeal against a decree passed in second appeal if a substantial question of law of general or public importance arises which may not only determine the dispute between the parties but will be a precedent for guidance for determination of similar disputes in other cases. The court, may, if it appears that substantial injustice has resulted or that there had been no proper trial of the case or other similar reasons interfere with the order or the decree passed by the High court in second appeal. But the right to appeal to this court is not as of right and the mere fact that some question of law arises out of the decision of the High court will not enable a party to claim a right to appeal to this court.

(3.) In the present case the High court has rightly pointed out that the parties had accepted Ext. D/2 on the basis of which account had to be taken. The District court discarded Ext. D/2 and the High court was, in our judgment, right in holding that the District court acted improperly in doing so. If the parties had acted on the basis of Ext. D/2 there is no reason why the account should not be taken on the footing of Ext. D/2. Justice of the case requires that the account be taken on the basis of Ext. D/2. In the terms of the agreement there may be some indefiniteness; but the High court was of the view that the area of the land would have to be determined upon "the plaintiff's volition and defendants' choosing between the two limits of 150 bighas and 100 bighas". The price to be paid and the rent or the share ofthe crops will it is true have to be determined having regard to the terms of the agreement with prevailing market-value, but it cannot be said that the terms are so indefinite that notwithstanding the agreement by the plaintiff he will not be compelled to carry out the terms of the agreement.