DEEN DAYAL Vs. HANUMAN SAHAI

JUDGEMENT

(1.) IN this case a second appeal was preferred by defendant Deen Dayal, and a cross-objection by plaintiff Hanuman Sahai, against the appellate judgment and decree of the learned District Judge, Jaipur District, dated January, 6, 1959. The suit was for dissolution of partnership and rendition of accounts. It is admitted on behalf of the defendant that his appeal was dismissed in default of appearance on December 4, 1962, and that order has become final, so that I am concerned only with the plaintiff's cross-objection.

(2.) THE suit was instituted by plaintiff Hanuman Sahai in the court of Civil Judge, Tonk, on December 18, 1950, with the allegation that the parties and one Bholaram entered into a partnership in Phalgun Smt. 2004 for the purpose of establishing and running a flour, oil and ginning mill at Niwai. According to the plaintiff, it was agreed that while the share of Bholaram would be annas two in the rupee, the shares of plaintiff Hanuman Sahai and defendant Deen Dayal would be seven annas in the rupee each. THE plaintiff claimed that it was agreed between the partners that a sum of Rs. 200/- per mensem would be payable to Bholaram and Hanuman Sahai, as cash remuneration, in addition to their aforesaid shares in the partnership business. It is not disputed that the mill went into production on August 3, 1949, and was known as "shri Ganesh Oil, Ginning and Flour Mill". It is also not disputed that Bholaram withdrew from the partnership in Mangsir Smt. 2006, on payment of Rs. 8700/- on account of his share as well as profits. THE defendant, however, came to Niwai and began to manage the affairs of the mill from Baisakh Smt. 2007. It appears that there was some misunderstanding between the two partners Hanuman Sahai and Deen Dayal. , so that Deen Dayal gave notice Ex. P. A. 1 on November 18, 1950, asking Hanuman Sahai to withdraw his one-third share after settling the accounts. Hanuman Sahai gave reply Ex. P. G. dated 28th November, 1950, to that notice claiming that each of the partners had a one half share and calling upon Deen Dayal to withdraw his share if he so desired. Soon after, the plaintiff filed the present suit on December 18, 1950, stating that he had a half share in the partnership business from the date of Bholaram's withdrawal and praying for a decree for dissolution of the partnership and rendition of accounts.

(3.) IT may be mentioned that Mr. Datt raised an argument on behalf of the defendant - appellant that even though his appeal had been dismissed, the defendant's whole case should be re-heard by virtue of the provisions of Order XLI, rule 33 C. P. C. while considering and deciding the plaintiff's cross-objection. The argument is without substance because in the present case an appeal was preferred by the defendant, but it was dismissed, so that there is really no scope for the application of order XLI rule 33 C. P. C. The object of the rule is to enable the appellate court to do complete justice between the parties and to avoid contradictory and inconsistent decisions on the same question in the same suit, but this power u/r. 33 has to be exercised only where the portion of the decree against which the cross-objection has been filed is so inseparably connected with the portion for which an appeal is not maintainable that justice cannot be done unless the latter portion is also interfered with. As this is not so in the present case the general rule that an appellate court must not vary or reverse a decree in favour of a party who has not preferred an appeal, or whose appeal has been dismissed, must have its full application.