DRAKSHARAPU APPALASWAMI Vs. ACLA RIVE

JUDGEMENT

(1.) WE are of opinion that the Subordinate Judge ought to have granted the adjournment asked for on the 29th June 1909. The B diary shows that the case stood posted for hearing on 16th April 1909. It was then adjourned to the 19th April as some of the plaintiff s witnesses did not attend. The Subordinate Judge seems to have been engaged in the trial of another suit and, consequently, the suit was adjourned to the 24th April. It does not appear that, either on the 16th or on the 19th April, the Subordinate Judge bound the plaintiff s witnesses to continue in attendance till the 24th. On the 24th, the case was adjourned to the re-opening day. The plaintiff, therefore, had no opportunity to apply for summonses to his witnesses before the day which was fixed for the hearing. WE cannot agree with the District Judge that the plaintiff ought to have put in an application for summonses to his witnesses along with the application for adjournment. The plaintiff did act with due diligence. The District Judge observes that the Subordinate Judge had passed an order on the 24th April that the plaintiff should go into the box and examine himself as a witness before inspecting the defendant s accounts. There is no reason for holding that on the reopening day, the plaintiff should have examined himself alone as a witness and taken the risk of the case being closed without other witnesses of his being examined.

(2.) THE respondent s Vakil contends that, on the face of the plaint, the suit is not sustainable. THE plaintiff asked that he should be declared to be a partner with the defendants in the firm of La Rive and Co. He also prayed that the defendants should be directed to produce their accounts, that an account should be taken between the parties and payment directed to him of what might be found due on the taking of the account. It is argued that the plaintiff really wanted that an account should be taken and payment made to him without the partnership being dissolved. It is not clear that this is the necessary construction to be put on the plaint. In Paragraph 7(g), the plaintiff, no doubt, states "that the defendants are liable to account to the plaintiff in respect of all profits realised by the firm up to now and hereafter till the partnership is dissolved." This is consistent with an impression on his part that the Court might direct dissolution as from a day to be fixed by it. We cannot say that it is clear that the plaintiff wanted the partnership to continue, and, at the same time, wanted accounts to be taken as between him and the defendants and payment made to him of what was due up to the date of the plaint. Mr. Ramesam, for the appellant, says that his client is quite willing that the Court should dissolve the partnership. THE case is one in which an amendment might have been allowed, by allowing the plaintiff to make it clear that he did not want that the partnership should continue. THE Subordinate Judge does not express himself clearly to the effect that the suit would be maintainable. We do not think, therefore, that, in second appeal, we should dismiss the suit on this ground. We reverse the decrees of both the Courts below and remand the suit to the Court of first instance for fresh disposal according to law. THE costs incurred up to date will abide the result.