DEBI CHAND Vs. PARBHU LAL

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiff, Debi Chand, for rendition of partnership accounts, and there are cross objections filed by Respondent No. 1, Parbhu Lal, one partner, and by Respondents Nos. 2 and 3, Chaman Lal and Paras Ram. The ground taken in the plaintiff's appeal is that no final decree should have been pronounced in this case inasmuch as he, the plaintiff, after the framing of a preliminary decree, withdrew his suit for rendition of accounts. This ground we cannot accept. When once there has been a preliminary decree ordering the taking of accounts, if the plaintiff desires to withdraw his original claim for rendition but the defendant desires the case to proceed, the proper course is to transpose the plaintiff to the position of defendant and make the defendant plaintiff. We may refer to the decision of Surampalli Ramamurthi V/s. Surampali Reddy AIR 1920 Mad 546. This, it is true, was a partition case, but the same principle has been given effect to in a suit for rendition of partnership accounts. See Tommenidi Adeyya V/s. Chilukuri Venkatarayudu AIR 1914 Mad 369. The same course of procedure has been adopted by the Calcutta High Court in a case of partnership accounts in the decision of Brojendra Kumar Das V/s. Gobinda Mohan Das AIR 1916 Cal 80. The lower Courts, therefore, appear to us to have adopted the right procedure, and the appellant's appeal must fail.

(2.) There is one ground of objection common to both the cross-objections. It is that the lower appellate Court has wrongly assessed as the price of 100 bags of salt sold by the plaintiff, on the 15 April 1920, at the rate of Rs. 2-8-0 per bag, whereas the first Court had assessed the rate at Rs. 6 per bag. The first Court held that one Qabul Singh had agreed to purchase some salt at Rs. 11-8-0 per bag and these 100 bags were tendered to him by the plaintiff but refused acceptance on the ground that the salt was of a wrong description. Ultimately litigation ensued, and the bags were not sold until the litigation had terminated at a time when the price of salt had fallen considerably. The respondent's objection in the Courts below was that the plaintiff should have sold the salt immediately Qabul Singh refused to accept it and not have waited until the termination of litigation with Qabul Singh. Both Courts have rejected this plea. They have held that the respondents were in a position to insist on the immediate sale of the salt, if they so desired, and that the plaintiff alone could not be made responsible for the delay.

(3.) The next point was at what price the salt should be held to have been disposed of on the 15 April 1920. The plaintiff produced an account-book which he supported by his oral evidence to show that the salt was actually sold at the rate of Rs. 2-8-0 per bag. The first Court on the report of the Commissioner held that the market price at that data was Rs. 6 per bag, and, consequently, it disbelieved the averment of the plaintiff that he had disposed of all the salt at the low price of Rs. 2-8-0 per bag.