KRISHNA IYER Vs. ANNASWAMY IYER

JUDGEMENT

(1.) The second plaintiff who is the legal representative of the original plaintiff is the appellant. The suit was based upon a business relationship between the original plaintiff and the defendant who was employed in his shop as a clerk for a number of years. In the plaint it was alleged that after the lapse of 18 years, the first plaintiff took the defendant as a working partner in his business, the arrangement being that he was to get eight annas in the rupee out of the net profits of the business. The plaintiff seems to have gone away to his native place in the Tinnevelly District after entrusting his retail shop in Trivandrum to the defendant in this manner. There was also a wholesale shop belonging to the plaintiff which does not come within the scope of this litigation except incidently. The prayer in the plaint was for return of moneys advanced and for accounts. It is unfortunate that in the course of the trial everybody lost sight of the fact that a working partner is not necessarily a partner in the business. He may be merely an employee under the capitalist partner although the working partner is to get a share in the net profits as remuneration for the services rendered by him. The learned trial Judge concentrated on the question as to whether the defendant was a partner of the plaintiff in the ordinary meaning of the term and reached the conclusion that he was not. The liability to account mentioned in the plaint was considered to be a question which depended solely upon the finding regarding the relationship between the plaintiff and the defendant partners, as understood by the learned trial Judge. The period during which the defendant was put in charge of the plaintiffs retail shop according to the plaintiff, extended from 1.1.1096 to 17.7.1100. The suit was filed on 26.6.1103. On the finding that the legal relationship of partners relied upon by the plaintiff had not been established, the learned trial Judge reached the conclusion that the plaintiff was not entitled to ask the defendant to account for the transactions he carried on in the retail shop, of which he was in charge.

(2.) On behalf of the appellant stress is laid upon certain averments in the plaint which relate to the circumstances in which the defendant became liable to account and the learned Advocate General who appears for the appellant invites the attention of the court to additional issue No. 9 which was raised in the course of the trial which is worded as follows:-

(3.) On these five points, the court below shall record findings on the basis of which the question has to be decided as to whether the plaintiff is entitled to a preliminary decree or not. The suit shall be disposed on the basis of these findings as agreed to by the parties. Since this litigation has been going on for a very long time, the court below shall give special precedence to it and since the points that are formulated above have to be decided on the evidence already on record, the matter shall be disposed of as expeditiously as possible, preferably before the commencement of the summer vacation. The costs of this appeal shall abide and follow the result and shall be provided for in the decree that will be passed by the Trial Court. The plaintiff shall in the first instance be liable to pay the court fee in respect of this appeal to the Government. But if he ultimately succeeds in the court below, then suitable direction will have to be made for making the defendant responsible for the payment of this court fee. Return the records to the Trial Court as expeditiously as possible.