BUDH PRAKASH Vs. SANTOSH PAL DUBLISH

JUDGEMENT

(1.) THIS appeal has been filed by the plaintiff, who had filed a suit for dissolution of the firm known as 'rajiv Prakashan', and for accounting against the defendant-respondent-Santosh Pal Dublish. Earlier to the formation of the partnership firm between the plaintiff and defendant, another firm with the same name and style, namely, 'rajiv Prakashan', which stood dissolved on 31-3-1966, in which apart from the plaintiff and defendant, S/sri Budh Prakash Rastogi, and Sushil Kumar Rastogi were also partners. The new firm was created on 1-4-1968 with only plaintiff and the defendant as partners. Plaintiff filed suit No. 933 of 1969 praying for the relief of dissolution of the firm and for the accounting from Apr. , 1966 to Nov. , 1969. The suit was filed on 15-11-1969. After the suit was filed by the plaintiff, a Commission was issued by the Court ex parte. The commission visited the shops of the firm on 16-11-1969 for inspection. It appears that after the visit of the Commission at the firm's shops, certain developments took place, which ultimately resulted in the withdrawal of the suit by the plaintiff somewhere either on 20th or 21st Nov. , 1969. Before that, with the consent of the parties, the firm was dissolved and dispute between the partners was amicably settled on the intervention of their friends and relatives.

(2.) AFTER dissolution of the firm, the defendant floated a proprietorship firm in the same name and style of 'rajiv Prakashan' with which the plaintiff had no concern. He also settled the old accounts of the firm by meeting the liabilities of the firm and paying outstanding dues of the creditors of the firm. It was in 1970 that the present suit, being suit No. 62 of 1970 was filed by the plaintiff for exactly the same relief, namely, for dissolution of the firm which had been formed on 1-4-1966 and stood dissolved on 16-11- 1969, and for accounting of the firms' finances.

(3.) ON the other hand, Sri S. N. Verma learned counsel for the appellant contended that since as a result of some oral settlement which had already taken place between the parties, the plaintiff had withdrawn the suit, that by itself would not mean that the suit had been withdrawn on account of the disappearance of the cause of action for which that suit was filed. It was further contended that on account of the intervention of certain relatives and well wishers of the parties, the matter was to be amicably settled, in that belief the plaintiff withdrew the suit, however since defendant did not act as per the terms settled, hence the plaintiff filed the later suit which is, therefore, not barred as the cause of action for accounting and dissolution of the firm is a recurring cause of action which for some time after filing of the suit No. 933 of 1969 was suspended for a while leading to the withdrawal of that suit but as soon as the cause of action arose, the present suit was filed which, therefore, is not barred simply because before the earlier suit was withdrawn by the plaintiff, he had not taken permission from the Court to file a fresh suit.