P L D 1959 Supreme Court (Pak (PLP)

Respondents Nos. 2 to 8 : Ex‑parte. Dates of hearing : 2nd and 3rd June 1959. MUHAMMAD MUNIR, C. J.‑This is an appeal from the judgment of a Division Bench of the High Court of East Pakistan at Dacca reversing in first appeal two decrees of the First Subordinate Judge, Chittagong, in a suit for partnership accounts. The appellant before us, Sudhangsu Bimal Biswas, instituted against Muhammad Mustafa Chowdhury‑hereinafter called the respondent because the second respondent, Ramesh Chandra Waddadar, was unnecessarily impleaded as a defendant‑a suit on the allegation that the appellant and the respondent had carried on a partnership business in military contracts, that the business was closed in 1946, and that the respondent had not rendered accounts of the partnership and praying that the partnership be declared dissolved and accounts taken. A preliminary decree was passed directing the respondent to render accounts and declaring that on his failure to do so a final decree for Rs. 22,639‑14‑6 would be passed against him. The respondent appealed to the High Court from the preliminary decree but being unsuccessful in obtaining a stay and not having rendered accounts a final decree for the amount stated was passed. He appealed to the High Court from the final decree as well. Both the appeals were heard by the High Court together and disposed of by the judgment under appeal. The plea of the respondent before the Subordinate‑Judge was that no such partnership as was alleged in the plaint had existed between the parties and that, therefore, he was under no liability to render accounts. On the evidence, the Subordinate Judge found that a partnership on the terms stated in the plaint had existed between the parties and that the respondent was liable to account. In the High Court several questions of law were raised by the learned counsel for the respondent, of which two relating to the non‑maintainability of the suit succeeded, the learned Judge holding " In our opinion a partnership entered into after the 1st October, 1932, can only be dissolved in either one or the other of the ways mentioned in the Partnership Act and as such, we hold that, in the present case, since no notice in writing was given by the plaintiff' of his intention to dissolve the partnership prior to the institution of the suit and since the plaintiff has not claimed dissolution by the Court, the suit for a declaration that the partnership, which was admittedly unregistered, stood dissolved and for accounts thereof is not maintainable. Furthermore, as this suit is neither a suit for dissolution of the firm nor a suit for accounts of a dissolved firm it is also barred under the provisions of S. 69 of the said Act" As the partnership was alleged to have been oral, the appellant had led evidence, direct and circumstantial, in proof of the partnership and of the terms on which it was entered into. Three of the witnesses produced by him had deposed to the formation of a partnership and the terms on which joint business was to be carried on, but it was contended by the learned counsel for the respondent that even if the evidence of these witnesses were believed it did not make out a partnership of the kind alleged in the plaint. The contention was accepted by the High Court though in discussing the evidence of the witnesses the learned Judges made some remarks showing that the witnesses were not reliable. As to the circumstantial evidence, it was observed that if the direct evidence did not prove the partner?ship, the circumstantial evidence was not of much help to the appellant. Before us it is contended by Mr. Muhammad Abdulla for the appellant that the High Court was wrong in holding that the suit was not maintainable. It is common ground that if the plaint and the evidence be taken to mean that m July, 1944, an oral agreement was arrived at between the appellant and the respondent that they would carry on jointly the business of military contracts, some of which would be obtained in one party's name and some in the name of the other party, that each party would advance an equal amount of capital and after deduction of expenses receive one half of the profits or pay one half of the loses, that such business was carried on upto the end of March, 1946, when war contracts ceased, then the suit was neither barred under S. 43 nor under S. 69 of the Partnership Act. No notice was necessary because ex hypothesi the partner?ship was confined to a particular class of adventures and it came automatically to an end with the termination of those adventures. Section 69 would be no bar to the maintainability of the suit because on that interpretation of the plaint the suit would be for accounts of a dissolved firm. On an analysis of the plaint we are satisfied that the claim was for accounts of a partnership in certain ejmali contracts which on completion of the business terminated in March, 1946. Thus a notice under S. 43 was not necessary and S. 69 was not a bar to such suit. Even if it be held that the partnership, if proved, was one at will, the exchange of notices and the counter‑claim made by the respon?dent as a simple creditor all mentioned in the plaint‑must be taken to amount to a notice to terminate the partnership as well as to a dissolution by consent. Faced with this difficulty Mr. Maksumul Hakim contends that if the law point on which he succeeded in the High Court is decided against him he is entitled to show that the evidence in proof of the partnership is untrustworthy and unacceptable. Mr. Muhammad Abdulla does not object to this course. The evidence in the case is considerable and consists of many depositions and large number of documents, which need careful examination. We therefore accept the appeal, vacate the judgment and decree of the High Court and remand the case for a fresh decision after hearing the parties. Costs of this appeal will be costs in the cause. K. B. A./A. H. Case remanded.