MANGILAL Vs. BHANWARLAL

JUDGEMENT

(1.) THIS is a plaintiff's second appeal against a judgment and decree of the learned senior Civil Judge, Jaipur, dated the 18th November, 1955, in a suit to rendition of accounts.

(2.) THE material facts leading up to this appeal may shortly be statsd as follows: the plaintiff is an assignee from defendant respondent No. 2 Jamal. The plaintiff's case, briefly put, was that IB 1948. some 42 persons of kanhroli constituted a partnership to carry on business in controlled cloth, mis partnership was admittedly dissolved some 'time in August, 1949, when it is said that Government control on cloth was somewhat relaxed and so it was decided that a new partnership among the ten defendants respondents be constituted in the name and style of kapda vyavsay Sangn, Kankroli, and cloth approximately worth Rs. 525/- which fell to the share of each of these partners as a result of the dissolution of the former firm was accepted as the capital of each of these partners in the new firm. It is then alleged that after some time it was decided that the cloth which was in stock so distributed among the ten partners of the value of rs. 825/- each and that this be made, over to each of the partners on his giving a sum of Rs. 300/- in the partnership account regard being had to the fact that the initial capital of each partner was Rs. 525/- only and it was further decided that the account of the profit would be gone into and settled later. The plaintiffs case further was that four of the partners were given their share of the cloth by defendant No. 1 Bhanwarial who was alleged to be the managing partner of the entire business. The plaintiff's case then was that on Baisakh Vadi 4 Smt. 2007 (equal to 6th April, 1950)defendant respondent No. 2 Jamal assigned his interest in the partnership to the former for a sum of Rs. 350/- by a writing Ex. 1 which was executed by the latter in favour of the former. The plaintiffs case further was that the partnership business was thereafter dissolved, and consequently he was entitled to ask for accounts and get respondent jamal's share of the profits and as according to him he was unable to obtain his share from defendant respondent No. 1 Bhanwarial, he brought the present suit with the prayer that he be allowed Rs. 550/-worth of cloth or the sum of Rs. 550/- in lieu thereof, and he further asked for a decree for rendition of accounts and for his share of the profits. As the plaintiff did not disclose in his plaint any dates as to the decision relating to the distribution of the cloth between the partners as also for the dissolution or the partnership, an application for further and better particulars was filed by one of the defendants and the plaintiff then gave out that the decision to distribute the cloth was arrived at some time in the month of Jeth of Section 2007 (corresponding to some time in May, 1950) and that the dissolution of the firm took place in the month of asoj or Kartik of the same year, which corresponds to October or november, 1950. The plaintiff also disclosed that no document was executed between the partners in that regard. The only other thing which is necessary to mention before proceeding further is that according to the plaint defendant No. 1 Bhanwarial was the person who maintained all the account-books and was in charge of the business. Of the ten defendants Bhanwarial alone resisted the suit, though Jamal also filed a separate written statement in which he admitted to have assigned his right, title and interest in the partnership to the plaintiff as alleged by the latter. The important points that he made in his defence and which deserve to be mentioned are; (1) that Bhanwarist was not the managing partner although he was in charge of the accounts of the partnership and (2)that he was not aware whether the firm had been dissolved or not. So far as Sfianwarlal is concerned, he admitted that Jamal, plaintiff's assignor, was one of the partners of the firm, but pleaded that he was not aware whether the plaintiff had purchased his share or not. He denied that he was the managing partner of the firm; but he did accept that he used to maintain all the accounts of it. This defendant also contended that the firm had not been dissolved and that money which was due from its customers had yet to be recovered and its debts had to be paid. As regards the cloth taken away by defendants Mangilal and Roshanlal, his version was that as the Government had lifted control over the sale of cloth, the prices had fallen and that it had become difficult to sell the cloth belonging to the partnership and therefore a list or lists of the cloth which was in the stock had been made and some of it had been taken away by some of the partners such as Mangilal and Roshanial to sell it at their shop, ana that the price of this cloth had been debited against them, as these persons had not rendered any account of the sales made lay them. His case further was that the rest of the cloth remained with him and that he went on selling it and has credited the sale proceeds of the cloth sold in the account-books of the firm and that he had also paid out of these sale proceeds the debts which the firm owed to its creditors. It was however admitted that as business had become slack and difficult, the shop in which the business of the firm used to be carried on was vacated and its Munim Deopuri was also discharged. It was finally, contended that the plaintiff could not bring a suit for accounts of the firm without first asking for its dissolution and consequently the suit deserved to be dismisses.

(3.) ON these pleadings, the trial Court framed as many as eight Issues and eventually dismissed the plaintiffs suit against all the defendants except defendant respondent Jamal holding that it was incompetent as the firm Kapda Vyavsay sangh Kankroli had not been dissolved and therefore the plaintiff was not entitled to bring a suit for rendition of accounts. That Court, however, decreed the suit for Rs. 350/-against defendant Jamal. Aggrieved by this decision, Dotn parties went up in appeal to the District Judge, Udaipur, who transferred them for disposal to the Senior Civil Judge, Udaipur. The latter allowed Jamal's appeal mainly on the ground that the plaintiff had not asked for any renet against this defendant in his plaint, and, therefore, the trial Court had exceeded its jurisdiction in granting it. As regards the plaintiff's appeal against the other defendants, the learned Senior Civil Judge was inclined to hold that although there was a cessation of the active business of the firm, that by itself did not and could not amount to its dissolution, and in that view of the matter, he upheld the trial Court's conclusion and thus dismissed the plaintiff's suit in toto. It is against this judgment and decree that the plaintiff has now come up to this court in second appeal.