Pramod Kumar Jain, J. - (1.) RESPONDENT No. 2 Shiv Kumar Agarwal, had filed suit No. 324 of 1976 against the petitioners Moti Lal Agarwal and Banwari Lal Agarwal with the allegations that plot No. 62/2 was purchased by his father through a registered sale deed dated 7.10.1965. In part of the said plot measuring 25 ft. x 25 ft. plaintiff had installed a flour mill (Atta Chakki) machinery of which was purchased by him. The defendants (petitioners), entered into a partnership business with plaintiff having following shares. Plaintiff...............37 1/2% Defendant No. 1............25% Defendant No. 2............371/2% The partnership was at will and it was dissolved by the plaintiff on 14.11.76 and thereafter a registered notice was served upon the defendants on 16.12.76 informing them that the partnership shall be deemed to be dissolved from the date of receipt of the notice. The notice was received by the defendants on 18.12.76 and thereby the partnership was finally dissolved on 18.12.1976. The defendants had no concern with the premises in question as well as the machinery but they were creating obstruction in running the flour mill. The plaintiff, therefore, prayed that by a decree of permanent injunction the defendants be restrained from interfering in running of the flour mill by the plaintiff. The defendants (petitioners) contested the suit and pleaded that the family of the plaintiff and the defendants consisted of a joint Hindu Family having their ancestral land and business. Earlier there was joint Hindu Family business at Rajasthan only but later on it was extended to Dehradun also. Some of the members of the joint Hindu Family looked after the business at Dehradun. The land on which the flour mill was to start was also purchased by the joint Hindu Family. Shiv Kumar was literate and, therefore, he was sent to purchase machinery from Delhi. Licence as well as electric connections were obtained in the name of Moti Lal Agarwal, defendant No. 1. Thus, the defence of the petitioners was that the land as well as the machinery belonged to the joint Hindu Family and the plaintiff was not the exclusive owner of the disputed property; that while dissolving the partnership the legal process has not been observed and the assets have not been allocated to the partners and, therefore, the suit was liable to be dismissed.
(2.) ON the pleading of the parties the trial court framed following issues - - (1) Whether there was partnership between the parties as stated in para. 3 of the plaint? (2) Whether flour mill business was a joint Hindu Family business? (3) Whether the suit was not maintainable? (4) Whether the suit was under -valued? (5) To what relief, if any, the plaintiff is entitled? On issue Nos. 1 and 2 the finding of the trial court was that it was not a joint Hindu Family business. It was pure and simple business of partnership. However, there was no accounting between the parties. Although the machines were purchased by Shiv Kumar but he cannot be deemed to be in exclusive possession unless the partnership is finally dissolved by accounting between the parties and till such dissolution the parties shall be deemed in joint possession of the machines. The trial court consequently dismissed the suit of the plaintiff -respondent. The plaintiff preferred Civil Appeal No. 127 and 1982 in which an application for amendment in the plaint was moved before the appellate court. In para. 3 of the plaint the plaintiff sought to be added following words - - Use of the premises and machines installed therein mentioned above for the partnership business, was permissive on behalf of the plaintiff. In para. 5 following words were sought to be added - - The permission to use the said premises and machines for the partnership business stood revoked with the service of the notice dated 16.12.76, which dissolved the partnership.
(3.) FURTHER following paras. 5A and 5B were sought to be added: - - 5A. That plaintiff is entitled to a declaration that the partnership firm of the parties has dissolved with effect from 18.12.1976 when notice of dissolution dated 16.12.1976 was served upon the defendants. 5B. That the defendants were the accounting parties of the partnership business. Now there is no case of accounting between the parties. In any case, plaintiff has left his claim for rendition of accounts by the defendants. In case, it is held that accounting of the partnership business of the parties is necessary, the accounts may also be got settled.;