Dave, J - (1.) THIS is a reference by the learned District Judge, Ajmer, under O. 46, R. 7 of the Code of Civil Procedure.
(2.) THE facts giving rise to it, in brief, are as follows : - On 30th August, 1947, Ramprasad brought a suit for recovery of Rs. 400/-against Ghisulal and Sohanlal who were described as proprietors of the business carried on in the name and style of Ghisulal Sohanlal. It was averred by the plaintiff that he was; a grain-merchant carrying on business of grain at Prao, Ajmer. Defendant No. 2 was working as a Munim at his shop. During the period between 7th November, 1953 and 3rd October, 1954, the defendants purchased, on credit, grain worth Rs. 10,654/3/- and paid a sum of Rs. 10,394/6/6 on different dates between the said period, leaving a balance of Rs. 259/12/6 outstanding against them. It was further stated that an amount of Rs. 131/- was wrongly credited to their account and thus he was entitled to recover a total amount of Rs. 339/12/6. After adding interest, he rounded off the figure at Rs. 400/- recoverable from them. This plaint was returned ,by the Judge, Small Causes Court to the plaintiff to be presented to the proper court since he thought that it was a suit for account and, therefore, it was not triable by him on account of the provisions of Article 31 of the Second Schedule of the Provincial Small Cause Courts Act. When the plaint was presented before the Munsiff, he thought that the suit was triable by the Small Cause Court and so he also returned the plaint. Thus, on account of difference of opinion between the two courts, the matter was taken to the Court of District Judge, Ajmer. THE learned District Judge has reported that the suit did not come within the ambit of Art. 31 of the Provincial Small Cause Courts Act, referred above. No body has appeared in this Court on behalf of the plaintiff or on behalf of defendant No. 1 Learned counsel for defendant No. 1 Sohanlal has tried to support the view of the Judge, Small Cause Court, Ajmer and he has referred to Puran Lal Ram Lal Vs. Firm Damodar Das Parmanand (l) and Bhagwan Das Vs. Banshidhar (2 ). In the first case, the plaintiff had brought a suit for recovery of Rs. 311/6/9 for the cost of the goods supplied to the defendant at his request. The defendant's plea was that the quantity of the goods actually supplied to him was not the same as stated by the plaintiff, that the material was also of an inferior quality and was supplied very late. The question arose whether in view of the pleadings, the case was triable by a Judge, Small Cause Court or not. It is significant that after referring to all the cases examined by the learned Judge, he came to the conclusion that it was not a suit for accounts and was not covered by Art. 31 of the Second Schedule of the Provincial Small Cause Courts Act. Similarly, in the next case, the learned Judge after referring to certain cases deduced certain principles and observed as follows : - "where the plaintiff prays in the plaint that the defendant be asked to render accounts and brings a suit for an indeterminate amount, then the suit is clearly one falling under Art. 31 of the Schedule. If on the other hand, the plaintiff sues for a specific sum of money and it is the defendant who alleges that the suit falls under Art. 31, then before the Court can hold that it does so, the defendant must prove to its satisfaction firstly that other transactions besides those in suit have taken place between the parties, secondly that the plaintiff is liable to render account to the defendant and thirdly that the suit cannot be disposed of satisfactorily without taking accounts. " It may be observed that we respectfully agree with this view, but it does not help defendant No. 2 in the facts and circumstances of the present case as they stand up to this date. It may be pointed out that the plaintiff nowhere indicated in the plaint that in order to enable him to obtain a decree it was necessary for the defendants to render an account. The suit was clearly for a specific sum which, according to the plaintiff, was due to him on the basis of the Khata. The defence put forwarded by both the defendants Ghisulal and Sohanlal was that they had no transaction with the plaintiff. Defendant No. 2 further stated that the grain was purchased by one Kaluram son of Sadasukh, proprietor of Ghisulal Sohanlal and that he had nothing to do with the said transaction. It was also pleaded that the plaintiff had earlier brought a suit against him for the same amount and it was dismissed. A fresh suit was, therefore barred by sec. 11 and O. 2, R. 2 of the Code of Civil Procedure. The questions for determination before the Small Cause Court, therefore, were whether the defendants were proprietors of the firm Ghisulal Sohanlal and whether they had entered into transactions with him individually or collectively. It had also to determine the question whether the present suit was barred on account of the provisions of sec. 11 and O. 2, R. 2 of the Code of Civil Procedure. The question of taking an account could not arise so long as these questions were not disposed of and the necessity for rendering accounts had arisen on account of certain additional reasons to be found afterwards. Under the circumstances, it ought not to have returned the plaint by referring to Art. 31 of the Provincial Small Cause Courts Act which did not come into play at that stage of the pleadings. The reference is, therefore, allowed, the order of the Judge, Small Cause Court, Ajmer, is set aside and the case is sent back to that court through the District Judge, Ajmer, with direction to admit the case and proceed to determine it according to law. No order as to costs. . ;