BEHARI LAL Vs. RAM SWARUP

JUDGEMENT

(1.) This is a defendant's appeal. The dispute relates to a press known as Hari Kishen Karyalay Shukla Printing Press. The plaintiff alleged that on 6 March 1935, the press was opened in partnership with the defendant on certain conditions set out in the plaint, that on 11 February 1943, he served a notice on the defendant terminating the partnership and that he was, therefore, claiming the following reliefs: After accounting, sale of the partnership property and payment of the partnership debts a decree for Rs. 2100 or any other sum found due to the plaintiff. be passed in favour of the plaintiff against the defendant. That the defendant be made to pay the costs of the suit. That any other relief deemed just by the Court be granted. In the alternative the plaintiff prayed: That in case the dissolution of partnership is not proved a decree for dissolution of partnership be passed in favour of the plaintiff against the defendant. The suit has been decreed for the second relief as the lower Courts have held that the notice alleged to have been given by the plaintiff on 11 February, 1943, was not given. The defendant has appealed.

(2.) The point raised on his behalf is that the plaintiff's present suit should have been dismissed as it was barred by the principle of constructive res judicata. The plaintiff had filed another suit no. 10 of 1937 in the Court of the learned civil Judge of Lucknow with regard to this very press. In that suit the plaintiff had alleged that his father was the sole owner of the press and the defendant had been working as a mere-servant. The plaintiff asked for accounts from the defendant and for payment of the money that might be found due to the plaintiff after accounting. It was further alleged in the plaint that the defendant was falsely setting up a partnership with his father Mathura Das and if there was any such partnership it was dissolved on 30 March 1935, on Mathura Dass death. The plaintiff went on to say that if for any reason it be held that the defendant was a partner to the extent of one-half, in that case the partnership may be dissolved. That the plaintiff no longer wanted to continue the partner-ship with the defendant and hence the suit. On these allegations the following alternative relief was asked for: That if it be held by the Court that the parties are partners, even in that case, the partnership be dissolved and the defendant be ordered to render ac-counts relating to the entire joint business and whatever amount and cash be found to belong to the plaintiff, it be separated and delivered to the plaintiff.

(3.) Plaintiff's father had died on 30 March 1935, and the previous suit was filed on 12 August 1937. The defendant in his written statement had alleged that he was the sole owner of this press and Mathura Das was merely a creditor, that on 6 March 1935 accounts were settled between Mathura Dass and the defendant and a sum of Rs. 5200 was found due to Mathura Dass. He further said that on 6th March 1935, there was an incomplete agreement of partnership, there being a proposal that the plaintiff and the defendant should be partners to the extent of half and half but the partnership deed was never executed and the plaintiff and the defendant, therefore, did not become partners. The case was referred to arbitration and before the arbitrator the plaintiff wanted to rely on the agreement dated 6 March 1935, to prove that he was a partner with the defendant with effect from that date. The defendant protested that the plaintiff should not be allowed to change his ground and claim relief on a basis which had never been originally set out in his plaint. The objections filed on behalf of the defendant were in these terms: That if the case of the plaintiff had been based on partnership, then the defendant would have taken another defence for it. An issue in respect of partnership having been framed, it is feared that such matters might be decided, upon which none of the parties rely." Further by another objection of the same date the defendant said: That in the course of arguments, it has been first argued on behalf of the plaintiff that a new agreement of partnership was entered into between the defendants and the plaintiff on 6 March 1935, and that the present suit relates to the dissolution and accounts of that partnership. That by a perusal of the entire plaint and written statement (sic) of partnership dated 6 March 1935 in the plaint, and for this reason there is no defence in respect of it in the written statement filed by the defendant." The arbitrator gave his award on 19 January 1938. He had framed the following issues for decision: 1. Whether the plaintiff or the defendant is its (press) owner or whether it was a partnership business? 2. What was the position of the defendant if the plaintiff was its (press) owner and what was the position of the plaintiff if the defendant was its owner? 3. If it was a partnership concern how much is due to whom after taking accounts?