RAMPROSAD SURAJMULL Vs. MOTILAL

JUDGEMENT

(1.) This is an appeal against two orders made by Panckridge; J., one on 23 January 1934 and the second on 14 December 1934. The latter order was made as the result of an application on behalf of the plaintiffs in the suit to set aside a previous order which had been made by the learned Judge, purporting to act under Rule 8, Chapter 26, Reference Rules, of this Court whereby the plaintiffs suit was dismissed for want of prosecution. An examination of the history of the litigation between the parties demonstrates very clearly that neither the plaintiffs nor the defendant have any merits in the matter. The suit was instituted as long ago as 13 December 1918 for the recovery of the sum of Rs. 12,665-11-9 alleged to be due on a mutual, open and current account. The written statement was filed on 14 February 1919 and the defence taken by the defendant was to this effect: the current account referred to in the plaint was admitted but defendant claimed to be entitled to credit by way of set off for the sum of Rs. 3,343-12-0 said to be due to the defendant from the plaintiffs on account of certain dealings in silver bars. The defendant also claimed to be entitled to a half share of the profits of a joint venture in connection with a transaction concerning 75 bales of Grey Shirting material. On 9 January 1920 Greaves, J., made a decree in favour of the plaintiffs. That decree was for the amount claimed loss the set off claimed by the defendant on the silver bar account and less such profits as the defendant might be entitled to arising out of the joint transaction in Grey Shirting material. It is important to observe the precise form of the decree. The operative part reads as follows: It is ordered and decreed that the defendants do pay to the plaintiff firm the sum of Rupees 12,665-11-9 less the sum of Rs. 3,343-12-0 and also the amount representing the half share of the defendant's firm in the net profits accrued in respect of the joint venture in respect of 75 bales of Grey Shirting to be agreed upon between the parties in the pleadings in this suit mentioned with interest to run after 7 days on the ascertained amount if the amount is agreed at the rate of 6 per cent per annum until realisation thereof; otherwise the question of interest be reserved until after the Assistant Referee of this Court shall have made his report as hereinafter directed.

(2.) And then comes the direction: And it is further ordered and decreed that the further hearing of this suit be adjourned and that it be referred to the said Assistant Referee to take an account of the profits as were made by the joint venture in respect of 75 bales of Grey Shirtings in the pleadings in this suit mentioned.

(3.) Then there is a direction with regard to costs. So that on 9 January 1920 the position was that the plaintiffs obtained a decree for a certain amount less one definite sum and less an unascertained amount, and the further hearing of the suit had been adjourned until after the reference. From that decree the plaintiff appealed on 9 February 1920. On 16 June of that year there was a decree made by the Court of appeal remanding the suit to the Court of first instance in order that there might be a clear finding with regard to the alleged existence of an agreement for the dealings and transactions between the parties to form part of the one current account in connexion with which the plaintiff was making his claim in the suit.