- (1.) THIS appeal has been filed by the plaintiff, who had filed a suit for dissolution of the firm known as 'rajiv Prakashan', and for accounting against the defendant-respondent-Santosh Pal Dublish. Earlier to the formation of the partnership firm between the plaintiff and defendant, another firm with the same name and style, namely, 'rajiv Prakashan', which stood dissolved on 31-3-1966, in which apart from the plaintiff and defendant, S/sri Budh Prakash Rastogi, and Sushil Kumar Rastogi were also partners. The new firm was created on 1-4-1968 with only plaintiff and the defendant as partners. Plaintiff filed suit No. 933 of 1969 praying for the relief of dissolution of the firm and for the accounting from Apr. , 1966 to Nov. , 1969. The suit was filed on 15-11-1969. After the suit was filed by the plaintiff, a Commission was issued by the Court ex parte. The commission visited the shops of the firm on 16-11-1969 for inspection. It appears that after the visit of the Commission at the firm's shops, certain developments took place, which ultimately resulted in the withdrawal of the suit by the plaintiff somewhere either on 20th or 21st Nov. , 1969. Before that, with the consent of the parties, the firm was dissolved and dispute between the partners was amicably settled on the intervention of their friends and relatives.
(2.) AFTER dissolution of the firm, the defendant floated a proprietorship firm in the same name and style of 'rajiv Prakashan' with which the plaintiff had no concern. He also settled the old accounts of the firm by meeting the liabilities of the firm and paying outstanding dues of the creditors of the firm. It was in 1970 that the present suit, being suit No. 62 of 1970 was filed by the plaintiff for exactly the same relief, namely, for dissolution of the firm which had been formed on 1-4-1966 and stood dissolved on 16-11- 1969, and for accounting of the firms' finances. So far as the relief for dissolution of the firm is concerned, both the Courts have dismissed the suit. However, the trial Court decreed the suit for accounting holding that the accounts between the partners had not been settled and a decree was accordingly passed for it. On appeal, the first appellate Court, modified the decree and decreed the suit for accounting with effect from 1-4-1969 to 15-11-1969. It may also be pointed out here that the defendant had also filed a cross-objection in the first appellate Court. In his cross-objection, the defendant had taken exception to the decree passed by the trial Court. The first appellate Court dismissed plaintiff's appeal and partly allowed defendant's cross-objection holding that the plaintiff was entitled for taking the accounting of the firm from 1-4-1969 to 15-11-1969 till before the date of the dissolution of the firm on 16-11-1969. This Second Appeal has now been filed by the plaintiff with the contention that since the accounts have not been given by the defendant for the entire period during which the firm was in existence, as such, he is entitled to get the accounts of the firm from 1-4-1966 to 27-3-1970. The appellant's stand was that the firm did not dissolve on 16-11- 1969, or at any time thereafter. A preliminary objection was raised before me on behalf of the defendant-respondent about the maintainability of suit No. 62 of 1970 from which the present appeal has arisen. It was contended that since suit No. 933 of 1969 had been withdrawn by the plaintiff-appellant without permission of the Court for filing another suit, suit No. 62 of 1970 filed for the same cause of action for which suit No. 933 of 1969 had been filed by the appellant was not maintainable. It was contended that suit No. 933 of 1969 had been filed both for dissolution and for accounting of the finances of the firm right from the date of formation of the firm on 1-4-1966 till the date of its dissolution, and since the appellant withdrew the suit of his own accord on his satisfaction that no cause of action for proceeding with the suit survived before withdrawal of the suit no grievance even regarding accounting could hence be said to have survived for filing another suit. The counsel contended that with the withdrawal of the earlier suit, cause of action even for the accounting of the finances of the firm stood barred and subsequent suit could not be filed for the same cause of action. Reliance in this respect was placed on R. 1 of O. 23 of the Civil P. C. , 1908.
(3.) ON the other hand, Sri S. N. Verma learned counsel for the appellant contended that since as a result of some oral settlement which had already taken place between the parties, the plaintiff had withdrawn the suit, that by itself would not mean that the suit had been withdrawn on account of the disappearance of the cause of action for which that suit was filed. It was further contended that on account of the intervention of certain relatives and well wishers of the parties, the matter was to be amicably settled, in that belief the plaintiff withdrew the suit, however since defendant did not act as per the terms settled, hence the plaintiff filed the later suit which is, therefore, not barred as the cause of action for accounting and dissolution of the firm is a recurring cause of action which for some time after filing of the suit No. 933 of 1969 was suspended for a while leading to the withdrawal of that suit but as soon as the cause of action arose, the present suit was filed which, therefore, is not barred simply because before the earlier suit was withdrawn by the plaintiff, he had not taken permission from the Court to file a fresh suit. To examine the force in the contentions of learned counsel for the parties, it is necessary to refer to the provisions of O. 23, R. 1 of the Code which deals with the withdrawal of suit or abandonment of part of claim. Order XXIII, R. 1, C. P. C. , reads as follows:- "1. Withdrawal of suit or abandonment of claim- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim. Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2 ). An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next freind and also, if the minor of such other person is represented by a pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other, person. (3) Where the Court is satisfied - (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. It may, on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. (4) Where the plaintiff - (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiff. ";