LODHA, J. - (1.) THIS is a defendant's second appeal arising out of a suit for dissolution of partnership and taking of partnership account. Respondent Ram Narayan alleged in the plaint filed by him in the Court of Munsif, Kekri, on 1-6-61 that he and the appellant defendant Sualal had entered into a partnership on 27-9-58 to run a load lorry on hire and purchased truck No. 644 for Rs. 3,600/- for this purpose. It was alleged that each of the partners had subscribed Rs. 1,800/- for the purchase of the truck. The terms of the partnership, according to the plaintiff, were that each of the partners would have half share in the profits and losses of the firm and that the accounts of the partnership would be kept by the defendant-appellant. The plaintiff went on to state that he had further spent Rs. 2,484/8/-in this partnership business and the defendant had wrongfully stopped running of the truck as a result of which the firm was being deprived of an income of Rs. 40/-per day. After serving a registered notice by post on the defendant he filed the present suit praying that the partnership may be deemed to have been dissolved on 2-3-60 and the suit for accounts be decreed.
(2.) THE defendant admitted the partnership in his written statement, but pleaded that the truck had been purchased by him alone for Rs. 3,600/- and the plaintiff had not contributed any amount towards the purchase of the truck. He also denied the plaintiff's allegations that the plaintiff had spent Rs. 2,484/8/- or any other sum during the course of the partnership business. After recording the evidence led by the parties the learned Munsif by his judgment and decree dated 9-1-63 declared that the partnership shall be deemed to have been dissolved on 2-3-60 and that each of the parties had half share in the profits and losses of the firm. He also held that the accounts of the partnership firm were mostly kept by the defendant and he, therefore, directed the defendant to produce the accounts of the partnership within 15 days of the passing of the decree. THE plaintiff was also directed to produce whatever accounts of partnership he had with him. As regards the initial investment also his finding was that the plaintiff as well as the defendant had contributed Rs. 1,800/- each for the purchase of the truck and that the plaintiff had succeeded in establishing that Rs. 750/- had been spent by him for repairs of the truck. He also appointed one Shri Rishi Kumar, Advocate, as a receiver for settling the accounts and to submit his report as to which party was liable to pay how much sum to the other? He was also directed to take the truck in his possession. Dissatisfied with the judgment and decree of trial court the defendant went in appeal, but was unsuccessful and consequently he has come in second appeal to this Court. The only point which has been argued in support of this appeal is that the defendant-appellant should not have been held as an accounting partner and no finding should have been given by "the court while passing the preliminary decree that the plaintiff! had invested Rs. 1,800/- towards the purchase of the truck and had also spent Rs. 750/- for repairs of the truck. In support of his contention the learned counsel has relied upon Magan Rehari vs. Ram Partap (l), Ghisulal Ganeshi-lal vs. Gumbhirmull (2), and Jayantilal Keshavlal Dave vs. Surendra Ganga Johra-purkar (3 ). In Magan Behari vs. Ram Partap (l) (supra) it was observed that the relief of making the defendant an accounting party should not be granted in preliminary decree, which should be drawn according to O. 20, r. 15 and Form No. 21 of Appendix 'd', C. P. C According to the view taken in that case the defendant in a suit for accounts of partnership business cannot be asked to render the accounts, and the prayer for accounts should be granted in limited terms of S. 48 of the Indian Partnership Act 1932. In Ghishulal Ganeshilal vs. Gumbhirmull (2) (supra) it was held that one partner has no right of action against another for the balance owing to him until after final settlement of the accounts, unless it was a debt which is independent of the partnership accounts. In the present case it may be pertinent to note that while passing the decree for accounts the learned trial court has given direction to the defendant as well as the plaintiff to submit whatever accounts they have in their possession before the commissioner. He has not held that the defendant alone is the accounting partner. Apart from that if the matter has been fought out by the parties before the passing of the preliminary decree as to who is the accounting party 1 do not see anything wrong if the court gives a direction on this question as to which party had the accounts in his possession or which party had maintained the accounts? In this connection reference may be made to Ram Singh vs. (Firm) Ram Chand Tirath Ram (4), wherein It was observed that it is no doubt desirable that the Court passing a preliminary decree for taking of accounts should decide as to who is to be the accounting party, it is open to a Court to give instructions at any time to facilitate and regularise the taking of accounts. The Lahore case was referred to in Magan Behari vs. Ram Partap (l) (supra) and the learned Judges of the Allahabad High Court have no where expressed their dissent from the view taken in the Lahore case. It appears that in the case before their Lordships of the Allahabad High Court the plaintiff had made a prayer that a decree for rendition of accounts may be passed against the defendant. It was held that such a prayer could not be granted. But so far as the present case is concerned, as I have already stated above, only a decree for accounts has been passed and both the parties have been directed to submit the accounts of partnership business which they had in their possession. Thus I do not see any force in the contention of the learned counsel for the appellant that the preliminary decree is defective in this respect Coming to the objection that the lower court should not have given any finding regarding the investment made by each of the partners for purchasing the truck and the amount spent by the plaintiff for repairs of the truck, it may be observed that no such objection was taken by the appellant in any of the two lower courts. The plaintiff has no where claimed in the plaint that a decree for this amount may be granted in his favour nor any relief has been granted to the plaintiff in respect of these amounts. Both the parties wanted that the question regarding their respective investments in the partnership business may be decided and they led evidence on the point without any objection. The defendant has admitted in his statement as a witness that the plaintiff had spent Rs. 750/- for repairs of the truck. In face of this admission both the lower courts came to the conclusion that Rs. 750/- had been spent by the plaintiff over the repairs of the truck. The question as to how much amount remains due from each partner, however, remains to be gone into by the commissioner. The objection of the learned counsel for the appellant is that the decision of the aforesaid two items of Rs. 1,800/- and Rs 750/-should have been left to the commissioner. I, however, find it difficult to accept this contention. It was of course open to the court to have left the matter open in the preliminary decree regarding these two items also. But since the parties went on trial with respect to these two items and invited the court to give its finding with respect to them it is not open now to any one of them to assail that finding on the ground that the question should have been left for decision to the commissioner. The finding given in this respect by the lower courts cannot be said to be without jurisdiction and the objection raised by the learned counsel with respect to it is, in my opinion, not well founded. No other point was pressed in support of the appeal. The result is that this appeal has no merit and is hereby dismissed, but in the circumstances of the case I leave the parties to bear their own costs. . ;