YUSUF Vs. HAMIDULLA

JUDGEMENT

(1.) BY this appeal under Order XLIII, Rule l(s) C.P.C., the plaintiff questions the correctness of the order dated March 31, 1980 of the Additional District Judge ho. 2, Jodhpur by which his application under Order XL, Rule 1 C.P.C. was dismissed.

(2.) THE plaintiff instituted a suit for rendition of accounts etc. against Hamidulla s/o Mohammed (defendant No. 1), Abdul Rahim s/o Mohammed (defendant No. 2), Inayatulla s/o Mohammed (defendant No. 3), Abdul Hakim S/o Mahammed (defendant No. 4), Abdul Wahid Abdul Aziz (defendant No. 5) and Mohammed Rafiq s/o Yusuf (defendant No. 6) in the court of District Judge, Jodhpur on March 27, 1978. The plaintiff and defendants No, 1 to 4 are brothers and they are sons of Mohammed. It was alleged that Mohammed used to carry on business in Kaddi (gypsum) in the name of Mohammed and Sons at Jodhpur, Bhadwasia and other places. The said business was converted into a partnership business by Mahmmed on March 1, 1949. The partnership consisted of Mohammed and his six sons. Out of six sons, Abdul Aziz has died. A deed of partnership was executed by the partners on August 10, 1951. It was duly registered. The conditions of the partnership have been set out in para 5 of the plaint. Mohammed died on February 2, 1964 and his widow also, died on August 27, 1975. It has been stated by the plaintiff that Mohammed during his life -time executed a Tehrir on July 7, 1961 bequeathing 1/7 share in the part nership business to his grandson Rafique s/o Abdul Aziz Abdul Aziz is said to have died on January 13, 1973 and in his place, the name of defendant No. 5 Abdul Wahid was entered as partner in the register maintained for the purpose by the Registrar of Firms. It was disclosed by the plaintiff in para 11 of the plaint that with consent of all the partners, each partner was paid salary as specified therein. According to the plaintiff, the work of the Head Office of the firm was looked after and managed by defendant No. 1, Hamidulla for about 25 years and that the other brothers who used to look after the work and accounts at other places used to send the accounts and money to defendant No. 1. Defendant No. 1 discontinued payment of Rs. 400/ - per month to the plaintiff from November, 1976. He also discontinued payment of electricity charges etc. from October, 1975. The account books of the partnership and other documents are alleged to be in the possession of defendant No. 1 Hamidulla. A registered notice was sent by the plaintiff on October 11, 1977 stating that the account books pertaining to the partnership business may be shown to him. This notice was delivered on October 15, 1977 but neither the account books were shown nor the accounts were rendered. Hence, the suit was filed as aforesaid. The principal reliefs sought by the plaintiff in the plaint are contained in para 22 (ka) (kha) and (ga) of the plaint, which are as under: ...[VERNACULAR TEXT OMITTED]...

(3.) DEFENDANTS No. 1, 3, 4 and 5 filed written statements contesting the suit on various grounds on January 27, 1979. It was pleaded that the firm was dissolved on December 31, 1975. Thereafter, defendants No. 1,3, 4 & 5 formed another partnership on January 1, 1976 and since then, they have been carrying on the business. An objection was also raised to the effect that the suit in its present form is not maintainable. On April 16, 1979, an application was moved under Order XL, Rule 1 CPC. for the appointment of a receiver stating there in that it will be just and convenient to appoint a receiver in respect of the business of Mohammed & Sons. This application was supported by the affidavit of the plaintiff Yusuf. A reply was filed on behalf of defendants No. 1, 3, 4 and 5 stating that the partnership between the plaintiff and the defendants had come to an end on December 31, 1975 and that as the partnership had come to an end, the question of appointing a receiver does not arise. In the reply, it was also stated that there is no working contract of the partnership except that according to the agreement, Gypsum is supplied to the A.C.C. Co. and that whenever the accounts will be settled and if any amount is found due to the plaintiff, it will be paid by the defendants to the plaintiff. In support of the reply, the affidavit of the defendant Hamidulla was filed. A rejoinder to the reply was filed on behalf of the plaintiff on August 7, 1979. The learned Additional District Judge No. 2, Jodhpur by his order dated March 31, 1980 dismissed the application for the appointment of the receiver. The learned Additional District Judge was of the opinion that having regard to the reliefs claimed by the plaintiff and in the absence of any allegation regarding destruction of the property of the firm, it will not be just and convenient to appoint a receiver. The plaintiff has filed this appeal as aforesaid.