CHHANGANI, J. - (1.) THIS case has a very chequered career and illustrates how technicalities and pleas relating to procedure were allowed to delay the disposal of the case.
(2.) THE plaintiff-respondents Kundanmal, Kistoorchand and Moolchand of Bandikui brought a suit on 13th October, 1947, more than 16 years back in the Court of Munsif, Bandikui, for recovery of Rs. 476-14-0 against the defendants Sohanmal, now dead and represented by Harishchand, the third defendant, and Mehtabchand. THE plaintiffs' case was that the defendants' firm placed at the disposal of the plaintiffs' firm five wagons of salt containing 590 bags for sale in partnership, the share of the parties being half and half. According to the plaintiffs, the defendants employed Madhomal took an amount of Rs. 3,600/- from the plaintiffs' firm. THE plaintiffs further spent an amount of Rs. 575. 5. 3 in obtaining delivery under the railway receipts. THE plaintiffs paid Rs. 900/- to Harsahay Lichhminarain at the instance of the defendants on 13th October, 1944. THE plaintiffs further debited an amount of Rs. 61. 7. 6 on account of hiring carts and annas 0/2/0 on account of choki-dari. THE total cost of the sale was thus calculated as Rs. 5,136. 14. 9. THE plaintiffs' case further is that the salt was sold in various instalments and the total sale proceeds amounted to Rs. 4,507. 2. 9. To this amount, the plaintiffs further added Rs. 123. 9. 6 on account of 'adath' and rent and Rs. 200. 2. 0 on account of interest and annas 0/4/0 an account of notice expreses. THE total loss in the transaction was calculated at Rs. 953-13-0 and the plaintiffs filed a suit for recovery of Rs. 476-14-0 as being the defendants' share of the loss. THE defendants contested the suit on various grounds. THEy did not admit partnership with the plaintiffs. THEir case was that the transaction between the parties with regard to the salt was one of out-right sale by the defendants to the plaintiffs. It may be mentioned here that the defendants did not take any plea that the suit being not one for accounts was not maintainable as such although they took various other legal defences that the suit was bad for non-joinder of parties and that the trial court had no territorial jurisdiction to entertain the suit. The trial court framed the following seven issues and decreed the plaintiffs' suit on 5th December, 1950: - 1. Whether the defendants' firm supplied five wagons of salt to be sold in partnership of equal shares to the plaintiffs firm on 7. 10. 44? P. 2. Whether the plaintiffs' firm spent various amounts as mentioned in para No. 3 of the plaint and entered in the name of the defendants' firm? P 3. Whether the plaintiffs are entitled to recover Rs. 476-14- the amount of loss suffered from the defendants firm? P Whether the suit is barred by limitation? D Whether the suit is defective on account of non-joinder of necessary party? D Whether the suit is not triable by this Court? D Relief? 4. On an appeal by the defendants, the District Judge, Jaipur, remanded the case with a direction that the trial court should strike a fresh issue with regard to existence of partnership and allow the parties to lead evidence and then dispose of the case afresh. It may be mentioned here that the question of partnership had already been made the subject matter of issue in issue No. 1 and it is not understandable why the District Judge thought it proper to remand the case directing the framing of an additional issue. To me, it appears that the remand order was hardly called for and it is regrettable that a simple suit was permitted to be dragged on in this manner. The trial court then framed a further issue No. 7 as follows and the issue as to the relief was re-numbered as issue No. 8 : - "whether the parties agreed to sell salt in partnership with the stipulation that both of them would share the profits and loss arising out of this partnership equally?" After recording evidence of the parties, the trial court again decreed the plaintiffs' suit on 22nd August, 1953. The defendants again went in appeal. The appeal was heard by Mr. Mardia, Senior Civil Judge, and by his order dated 31st of May, 1954, he framed the following two additional issues: - I. "whether partnership of the parties in particular adventure of selling of five wagons of salt was registered one? If not, whether a suit is not barred under sec. 69 of the Jaipur Partnership Act,?" II. "whether the suit should have been for the dissolution and accounts of the partnership and the suit in the present form is not maintainable?" It appears that it was for the first time before the Civil Judge that the question of the defective form of the suit was agitated. The Senior Civil Judge did not give proper weight to the fact that the parties had really contemplated rendition of the accounts and that issue No. 3 contemplated the determination of the liability of the defendants after rendition of accounts. That being so, he was hardly justified in entertaining the objection as the maintainability of the suit on account of defective form at that stage and to have framed an issue; much less justified he was in referring the issue to the trial court. The question sought to be raised was merely one as to the proper construction of the plaint and could have been decided on merits by the Senior Civil Judge himself. Similarly, the other additional issue framed also raised a question of law and that also did not require a reference to the trial court. It may also be mentioned here that the learned counsel himself did not press the point on which this second additional issue was got struck by him at the stage of first appeal. This was the second time that this petty case instead of being decided on merits, was again referred to the trial court. The trial court after recording evidence of the 'mukhtiaram' of the plaintiffs, and hearing the arguments of the parties, held that the suit was not barred under sec. (1) & (2) of sec. 69 of the Jaipur Partnership Act. With regard to the second additional issue, the Court held that the accounts in the present case had already been settled and the present suit was brought for liability arising out of that settlement. The appellate court after the receipt of the findings, decided all the points against the defendants. Dealing with the question of the maintainability of the suit in the form in which it was brought, the appellate court observed as follows - "it is not a suit for any solitary item of the partnership business. As a matter of fact the plaintiff respondents in the suit as framed have rendered an account showing a total loss of Rs. 953. 12. half of which was to be borne by the defendant-appellants according to the alleged terms of the partnership. It is more or less a suit based on the breach of the alleged contract. " The appellate court did not think it proper to allow the plaintiffs' claim for interest as also for an amount of Rs. 70. 7. 0 on account of 'adath' charges i. e. commission. The appellate court accordingly reduced the decree from Rs, 476. 6. 0 to Rs. 340. 1. 6. The defendants have come to this Court in second appeal. 5. The first contention raised by Mr. Bhandari is that the suit should have been for rendition of accounts and not for an ascertained amount and that the suit in that form was not maintainable. In support of his contention, the learned counsel relied upon T. K. P. Rajagepala Chettiar vs. A. P. S. Palani Chettiar (1), K. Gopal Chetty vs. L. G. | Vijayaraghavachariar (2) and a few other cases. These cases certainly lay down that a suit for an item in partnership account is not maintainable and a partner should sue for the rendition of the accounts in respect of all partnership transactions. 6. So far as the general principle of law is concerned, there be can no quarrel with the principle relied upon by the learned counsel for the defendant-appellants. The question,however,is, what is the nature of the present suit and whether the defect in the suit is of such a nature as to justify the dismissal of the suit at this stage. Admittedly the partnership between the parties was a single transaction partnership. The plaintiffs have given all necessary details with regard to that transaction. The accounting parties were the plaintiffs themselves. In case a preliminary decree for accounts were to be passed the plaintiffs' account books were to form the basis of the rendition of the accounts. The plaintiffs were willing and prepared to place the account books at the disposal of the defendants. In this back ground on a liberal construction of the plaint it may be observed that the plaint did contemplate an examination of the accounts and a decree on its basis. The defendants in their written statements denied the partnership itself and also items in the accounts given by the plaintiffs. They did not raise any objection as to the maintainability of the suit, although they raised a plea of lack of territorial jurisdiction. It was only when they went in appeal a second time that this objection was taken. Thus the defendants also did not initially express any grievance against the form of the suit. The trial court framed issue No. 3 to the effect whether the plaintiffs were entitled to this amount after accounting. The trial court also treated the suit as essentially one for rendition of accounts. Had that objection been taken at the proper time the plaintiffs could have rectified the error by suitably amending the plaint. A defect in the plaint, in the circumstances of the present case, is not, in my opinion, sufficient to non-suit the plaintiff respondents. In taking this view, I may refer to some observations made by the Allahabad High Court in Sheo Dutt and others V. Pushi Ram and others (3 ). In that case the plaintiffs had sued for certain amount on an allegation that the accounts had been settled. The learned Judges came to the following conclusion: - "the accounts of the partnership were never settled between the parties and though the plaintiffs have claimed specific sums of money we think that the proper relief which should have been claimed by the plaintiffs was a relief for accounts. " Nonetheless, they declined to dismiss the suit on the basis of the defect in the form and made the following observations: - "in the present case where the plaintiffs have claimed specific sums of money on the allegation - though we might mention that the plaintiffs do not specifically say that there was ever any settlement of account - that the aceounts were gone into and the sums were found due to the plaintiffs, we may pass a decree of accounts if we are not satisfied that there was a proper settlement thereof and it does not seem to be necessary that we should either direct the plaintiffs to withdraw the suit or dismiss it on the ground that the relief claimed was not the proper relief. " The principle laid down in the above case is applicable with greater force to the facts and the circumstances of the present case where the plaintiffs considering themselves as accounting parties referred to the accounts and sought a decree for an amount claiming it on the basis of accounts. In my opinion, the question whether the plaint is defective or not, and whether the defect is irremediable and the plaintiffs' suit should be dismissed on that ground should be decided in the ultimate analysis of the facts and the circumstances of individual cases and the courts should not be guided by any hard and rigid formula. In view of the principle stated above and the facts and the circumstances of the ease detailed earlier, I have no hesitation in coming to the conclusion that the plaint did not suffer from any major serious defect and the defect, if any, was only of form and the plaintiffs should not be non-suited on this ground. The objection of Mr. Bhandari on the ground of non-maintainability of the suit is consequently disallowed. 7. Next, it was contended by Mr. Bhandari that the decree should have been a preliminary one for rendition of accounts and that a final decree was not warranted. In this connection, he relied upon certain cases. I do not consider it necessary to notice at length all these cases because I accept the principle that normally in suits for accounts a preliminary decree should be passed because it would be necessary to go into the accounts before the liability of the parties can be properly determined. The rule must, however, he subject to exceptions. In simple cases where the liabilities of the parties can be properly ascertained and where parties join the issue with regard to the correctness of the accounts and take chances of decision on merits, I do not see why the trial court should not be in a position to pass final decrees in the first instance. Reference may be made in this connection to Pursho-ttam Haridas vs. M/s Amruth Ghee Co. Ltd. , Guntur (4 ). The question, therefore, which has to be determined is whether in the facts and the circumstances of the present case the courts below acted erroneously in granting a final decree without first passing a preliminary decree for rendition of accounts. As stated earlier, the partnership between the parties related to one transaction only. The plaintiffs in the plaint gave detailed particulars of the various amounts spent by them in connection with the partnership transaction. The defendants denied the partnership and also challenged the correctness of the amounts alleged to have been spent by the plaintiffs. Issue No. 2 was framed to cover the controversies between the parties with regard to various amounts and it clearly required the plaintiffs to prove whether the various amounts were debited in the accounts. The trial court, on a consideration of the evidence, held the defendants liable in respect of all the items claimed by the plaintiffs. The first appellate court disallowed the plaintiffs' claim in respect of interest as also in respect of commission fee. It will thus be seen that the controversy between the parties which may arise in connection with rendition of accounts was adjudicated by the courts below, and the parties can have no grievance over that matter. In these circumstances, the grant of a final decree cannot be objected to. Incidentally I may point out that during the course of the hearing of the appeal Mr. Bhandari could take objection only in respect of an item of Rs. 25. 8. 0 on account of rent and Rs. 16-14-3 on account of 'mudat' charges. The learned counsel's grievance is that in the absence of a preliminary decree they could not lead any evidence to establish that they were not liable for the amounts. The contention of Mr. Bhandari in this behalf does not merit any serious consideration in view of the fact that the parties joined controversy as to the correctness of the various items of account in issue No. 2 and they had opportunities to lead evidence on the controversy. Besides, Mr. Kasliwal on behalf of the plaintiff-respondents in order to remove any controversy in this connection agreed before me to withdraw his claim in respect of these two items of expenditure. Certainly then, the defendant-appellants cannot suffer any prejudice on account of an omission to pass the preliminary decree in the first instance. Mr. Bhandari made one more point in support of the contention that a preliminary decree should have been passed. It was contended that the plaintiffs sold part of the goods to their own firm and possibly they might have earned some secret profits and the defendant-appellants could rightly claim share out of that profit. Although the entire accounts came to the knowledge of the defendant-appellants at a very early stage of the suit and yet during a period of about 17 years the defendant-appellants failed to take any plea with regard to this point. It cannot be disputed that the parties were at issue as regards the defendants' liability on account of loss in the partnership after proper accounting and it is not understandable why the defendants failed to make any grievance on the ground of sales by the plaintiffs to their own firm and their having made secret profits on those transactions. A specific plea having not been taken so far and the litigation having remained pending for over 17 years, I do not consider it proper to entertain the plea at this stage. No case, therefore, has been made out to challenge the correctness of the final decree in the facts and the circumstances of the present case. The second contention of Mr. Bhandari, therefore, fails and is rejected. As the plaintiff-respondents did not press for maintaining the liability of the defendant-appellants in respect of 'mudat' charges amounting to Rs. 16-14-3 and rent amounting to Rs. 25. 6. 0, the defendant-appellants are entitled to reduction in decree for half the amounts of these two items which comes to about Rs. 21. 3. 3. I, accordingly, reduce the decree in favour of the plaintiffs from Rs. 340. 1. 6 to Rs. 318-14-3. With this modification, the appeal is dismissed. In the circumstances, there will be no order as to costs. Mr. Bhandari has prayed for leave to appeal. The prayer for leave to appeal is refused. . ;