BHAGWANBHAI BHAPULBHAI TANDEL Vs. BHIKHABHAI BHAPULBHAI TANDEL

JUDGEMENT

(1.) BY filing this appeal from order under Order 43 Rule 1 of the Civil Procedure Code the appellant who is the original plaintiff of Regular Civil Suit No.119 of 1989 has challenged the order of remand passed by the appellate Court in Regular Civil Appeal No.110 of 1997. The appellant plaintiff instituted the aforesaid suit for dissolution and accounts of the partnership firm. The case of the plaintiff in the suit was that the plaintiff and the defendants had formed a partnership for doing fishery business. The partnership was entered into on 5.4.1985 and it was a partnership at will. It is the case of the plaintiff that the plaintiff and the defendants Nos.1, 2 and 3 each having one -fourths share in the business of the partnership but the defendants nos.2 and 3 are not giving accounts and, therefore, the plaintiff gave intimation to the other defendants for the purpose of dissolving the partnership firm and on that basis ultimately the suit was filed for dissolution of the partnership firm and for accounts and for recovering the amount in question.

(2.) THE learned trial Judge passed the preliminary decree, which was challenged by defendant No.2 by preferring appeal before the District Court. The learned appellate Judge allowed the said appeal by setting aside the order of the trial Court and remanded the matter to the trial Court for determining the question in respect of the condition precedent about whether any condition precedent mentioned in the agreement is fulfilled before dissolving the firm. It is aforesaid remand order which is challenged in the present appeal from order by original plaintiff of the suit.

(3.) MR Dakshesh Mehta, learned advocate for the appellant submitted that the appellate Court has committed an error in remanding the matter as from the available material on record the appellate court could have decided the matter. He further submitted that it is a partnership at will and the partnership firm would stand dissolved upon institution of the suit itself. Even the notice of dissolution was also given by the plaintiff. He further submitted looking to the fact that the suit is of the year 1989 and therefore the learned appellate Judge should have decided the appeal instead of remanding the matter to the trial Court.