- (1.) THIS is a plaintiff's second appeal in & suit for rendition of accounts wherein a preliminary decree for accounts was passed by the trial court but on appeal the plaintiff's suit was dismissed in toto. The short ground on which the suit was dismissed was that the plaintiff having neither alleged in his plaint that the partnership had been dissolved nor having made a prayer for the dissolution thereof in his plaint, a mere suit for rendition of accounts was not maintainable.
(2.) TO appreciate the controversy between the parties as regards the non-maintainability of the present suit, only a few facts need be stated. The plaintiff's case was that he and the defendants had entered into a partnership by a writing duly registered some time in Smt. 2003 for carrying on the business of taking up leases of agricultural lands with its office being in the town of Tando Adam which after partition of our country is situated in Pakistan. According to the plaintiff, he owned six annas share in the partnership while defendant No. 1 Bhugromal seven annas and defendant No. 2 Moorimal the remaining three annas. It was further alleged that the plaintiff and defendant No. 2 Moorimal were working partners and the defendant No. l Bhugromal was the financing partner, and that it had been agreed between the partners that the principal books of accounts and the funds of the partnership would be with the defendant No. l Bhugromal. The plaintiff's case further was that the said defendant after the partition migrated to India and took with himself all the books of accounts and other papers and funds of the partnership, and, therefore, the business of the partnership was stopped. The plaintiff had called upon defendant No. l to settle the accounts of the partnership more than once but without any effect, and, therefore, he was compelled to bring the present suit on the 8th May, 1951, in the court of the Sub Judge, First Glass, Ajmer. The relief claimed was that defendant No. l Bhugromal be directed to "render true and faithful accounts of his dealings with the property of the partnership and pay to the plaintiff the amount that this honourable Court may find due and payable to the plaintiff and also to bear the costs of this suit". Defendant Bhugromal alone constested the suit. He denied the plaintiff's claim in toto and among other pleas with which we are not concerned for the purpose of the decision of the present appeal, raised the contention that a suit for mere rendition of accounts was not maintainable without a further prayer for the dissolution of the partnership. The trial court decreed the suit and passed a preliminary decree for accounts. On appeal by defendant Bhugromal the learned Civil Judge, Ajmer, set aside the judgment and decree of the trial court and dismissed the plaintiff's suit holding that the plaintiff not having pleaded that the partnership firm in question had been dissolved before the institution of the suit nor having prayed for its dissolution in the suit, the present suit was not maintainable in law. The short point for determination, therefore, in this appeal is whether the conclusion arrived at by the court below as regards the non-maintainability of the suit is well-founded. Now, it may be stated at once that the plaintiff did not make any averment whatsoever in his plaint that the partnership for the accounts of which he was suing, had been dissolved. All that was stated therein was to the effect that some time after the partnership had been formed in the year 1946 A. D. , the partition of India took place, and defendant Bhugromal who was the financing partner and who had all the account-books and the other papers of the firm with him migrated to India, and, therefore, the business of the firm had stopped. There was no allegation whatsoever to the effect that the partnership firm had been dissolved which is obviously a matter of fact. It is well-established law that when a dissolu-tion of the firm is pleaded, the mode by which it was dissolved and the date of the dissolution must be mentioned in the plaint. Nothing of the kind was, however, done here. On the other hand, when the plaintiff came into the witness-box as P. W. 1, he deposed that the defendant had left the place of partnership business for India earlier than he did and that he had remained behind in Pakistan and that although the books of the firm for the first year remained with and had been taken away by the defendant, the books for the subsequent years were with him, clearly implying thereby that the business of partnership had continued even after the said defendant's departure to India. There is one more factor which has to be mentioned in this connection, and that is that the plaintiff failed to produce the deed of partnership alleged to have been executed between the parties and which had been registered or to adduce proper secondary evidence thereof. In these circumstances, the lower appellate court, in disagreement with the trial court, came to the conclusion that the plaintiff should have prayed for dissolution of the partnership along with his prayer for rendition of accounts or, in the alternative, he should have pleaded that the firm had already dissolved and further went on to hold that as he had failed to adopt any one of these two alternatives, a mere suit for rendition of accounts was not maintainable. Learned counsel for the plaintiff appellant has conceded before me that there is a general rule in our country that a suit for accounts will not lie in the absence of a prayer for dissolution, or, alternatively, in the absence of an averment in the plaint itself that the firm had already been dissolved. But he further submits that this general rule is subject to certain exceptions and that the present case is one such exceptional case. In support of his contention, he has drawn my attention to Harji Mal Mela Ram vs. Kirparam Brij Lal (l ). The principle that was accepted in this case was that in regard to suits by one partner against another for a partial account, the general rule applied in India is that if the account is sought in respect of a matter which, though arising out of a partnership business, or connected with it, does not involve the taking of general accounts, the court will as a rule, give the relief applied for, and further it will be for the court to deter-mine under what circumstances it would be equitable to order a partial account, having regard to the rights of the parties under the contract. It was further laid down that there was no rule of law then in force that a partial account could be ordered only under exceptional circusmstances. Reliance was placed in coming to this conclusion on Karri Venkata Reddi vs. Kollu Narasayya (2), Raghubir Dayal vs. Sheoram Das (3) and Fairthorne vs. Weston (4 ). These cases however, afford no parallel to the instant case, for it is not a suit for partial accounts but, as already stated, for a general account pertaining to the entire partnership. In this connection I should like to invite attention to Binjraj vs. Kisan Lal (5 ). After a fairly elaborate discussion of the case law on the point, the following principle was laid down : "the foregoing review of the authorities establishes that unless the relief of rendition of account cannot be given without a dissolution of partnership as when the general accounts of the partnership are demanded, that it would be necessary to sue for a dissolution of partnership; but when the suit relates to matters incidental to the partnership and seeks to compel the partners to discharge the obligations undertaken by them under the agreement of partnership, it would not be necessary to sue for a dissolution of partnership. In a case when the partner has a lawful grievance arising out of non-fulfilment by other partners of the terms of the contract. Courts would not be justified in refusing to afford relief for the simple reason that the partnership is a matter of mutual confidence, and the mutual relations of the partners must be settled without any intervention by the court. " (The italic is mine) I am in respectful agreement with this view, and am clearly of opinion that the present case falls within the ambit of that class of cases to which reference has been made in the first part of this extract which refers to suits of general accounts of the partnership business, and in which case the rule of law has been accepted that it is necessary to sue for the dissolution of the partnership, In this view of the law, I have no hasitation in concurring with the conclusion of the court below that a suit for mere rendition of accounts without a prayer for dissolution of partnership was and would not be maintainable in all the circumstances of the case inasmuch as this is not a suit for partial account or for the performance of some obligation incidental to the partnership such as had been undertaken by one of the partners under the partnership agreement. In the result this appeal fails and is hereby dismissed with costs. . ;