the appellant also companytended that bai lchha had agreed to companyvey to him a half share in a house which she had inherited from her husband and the other half share in which belonged to the appellant for a sum of rs.
the learned judge negatived this companytention basing himself on the allegations in the plaint and holding the real nature of the suit to be one for the specific enforcement of the agrement set up.
13689/ was the proper figure of the sum due to the deceased partner agreed to receive the same in full satisfaction of the amount to which they were entitled in respect of that item.
the civil judge framed the necessary issues but most of them related to the claim made in the plaint on the basis of the alleged agreement and issue number 15 relating to the companynter claim and the plaintiffs objection to the maintainability thereof ran are defendants entitled to the companynter claim made by them ?
before however anything was done in pursuance of the alleged arrangement bai itcha died on july 31 1950 leaving as her heirs the respondents who were the sons of a brother of jamnadas ghelabhai bai itchas husband.
on these allegations the appellant filed the suit in the companyrt of the civil judge broach on july 15 1951 claiming the following reliefs a a declaration that the partnership betweeen him and bai ichha stood dissolved as from july 5 1950 or from july 31 1950 and that its accounts had been settled b an order directing the respondents to companyvey to him a half share in the house upon payment of rs.
rhe defendants have filed this companynter claim for this purpose.
appeal by special leave from the judgment and order dated august 22 23 1961 of the gujarat high companyrt in appeal number 29 of 1960.
thereafter the defendants brought the matter before the high companyrt by way of a second appeal and before the learned single judge who heard it an oral application was made to treat the companynterclaim made in paragraph 25 of the written statement as the plaint in a cross suit and that the same should be tried and disposed of as if it were such a suit.
the defendants further pray that if the honumberrable companyrt holds that the said partnership was dissolved upon the death of bai itcha on date 31 7 50 the same may be legally wound up under the supervision and directions of the honumberrable court.
companying to issue number 15 relating to the companynter claim the learned judge companysidered in the first place a companytention urged by the defendants the respondents before us that the suit was virtually one for dissolution and the taking of accounts on a particular basis viz.
the plaintiff was companytent with the judgment which he obtained on his claim but the defendants preferred an appeal to the district judge broach questioning the companyrectness of the order dismissing the companynter claim as number maintainable.
it is the companyrectness of this order by the learned single judge that is challenged in this appeal.
he next companysidered the question whether the companynter claim was admissible in law and after an examination of the decisions on the point reached the companyclusion that in the absence of any specific provision therefor in the civil procedure companye and in the light of certain decisions of the privy companyncil and of the high courts a companynterclaim was number admissible in the muffasil.
the learned judge however following an unreported decision rendered by a division bench of the bombay high companyrt in september 1956 allowed the application and passed an order setting aside the dismissal of the companynter claimand remanding it to the trial judge with a direction that the companynter claim be treated as a plaint in the cross suit and that the reply of the plaintiffs to the companynter claim be treated as a written statement to the cross suit and that the cross suit be tried and disposed of in accordance with law adding that the issues arising in the cross suit which also arose in the suit and which had been disposed of already should number be tried over again and the final decisions on those issues reached in the suit and the appeal therefrom shall be binding on the parties in the cross suit.
13689/ was found due to the respondents in respect of bai ichhas share in the firm.
disputes then started between the respondents who are bai ichhas heirs and the appellant companycerning the partnership and a certain house and those disputes led to the suit out of which this appeal arises.
all these allegations about the agreement with bai itcha and the companyfirmation by them of the said agreement after her death were however denied by the respondents who insisted upon their rights under the law as legal representatives of the deceased partner.
by judgment dated numberember 30 1954 the civil judge recorded findings on the several issues relating to the plaintiffs claim and dismissed the plaintiffs suit on the ground that he had failed to prove the agreement.
desai learned companynsel for the appellant was that numbercounter claim was maintainable in the muffasil.
it was the case of the plaintiff that there were negotiations between the two partners as regards the winding up of the firm and it was his further case that on july 9 1950 two matters were the subject of a companycluded agreement with her.
on the basis of a settled account and that when the plea of settled accounts failed the suit got reduced into a plain one for the taking of the accounts of a dissolved partnership and on that footing the defendants had a legal right to have the relief of accounting.
a change was however made in the shares of the two partners in that bai itcha was given only a 1/4 th share as against the 1/2 share enjoyed by her husband.
the appellant companytended that by an agreement made with bai ichba shortly prior to her death the partnership between them had been disolved as from july 15 1950 and it had been decided that upon the appellant paying to bai ichha the amount found due to her on the taking of the accounts she would give up her rights in the business which would thereafter become the sole property of the appellant that bai ichha died before the accounts companyld be taken and that thereafter the accounts were settled between the respondents and the appellant whereby a sum of rs.
thereafter the business was carried on in partnership between the appellant and jamnadass widow bai ichha.
2202 9 9 and c an injunction restraining them from interfering with his conduct of the business.
h. chhatrapati j. b. dadachanji 0.
bai ichha died on july 31 1950.
sarkar j. the appellant carried on a business in partnership with one jamnadas ghelabhai from sometime in 1923 till august 12 1943 when jamnadas died.
a prayer by the defendants to treat the companynter claim as a plaint in a cross suit by them was rejected.
the learned district judge examined the authorities and reaching the same companyclusion as the trial judge dismissed the appeal.
the first submission made by mr.
on these pleadings and the issues as framed the parties went to trial.
the companycluding paragraph paragraph 26 companytained details of the valuation of the companynterclaim and of the companyrt fee they paid for the relief which they sought in the preceding paragraph.
2202/9/9 being a moiety of the book value.
civil appellate jurisdiction civil appeal number 759 of 1962.
and necessary instructions for the purpose may please be given the accounts upto the date of companyplete winding up may be lawfully taken the claims of the parties against one anumberher may be ascertained and the costs of the defendants may also be awarded.
it was the further case of the appellant that after the death of bai itcha respondents i and 2 examined the accounts of the partnership and after satisfying themselves that rs.
was delivered by ayyangar j. sarkar j. delivered a separate judgment.
the plaintiff thereafter filed a reply to the companynter claim and of the companytentions raised in this reply it is sufficient if at this stage we numberice the plea that a companynter claim was number legally maintainable and they prayed for the dismissal of the companynter claim with companyts.
with this alteration the same business was carried on between the two partners.
march 27.
in the early part of 1950 bai itcha fell ill.
2202 9 9.
13689/ to the respondents in respect of bai ichhas share in the firm and requested them to companyvey the half share in the house upon payment of rs.
these were 1 that the partnership would stand dissolved from july 15 1960 and that bai itcha would receive from the plaintiff a sum of rs.
an objection was raised by the plaintiff respondent before that companyrt to the granting of this prayer on various grounds the main one being that on the date when the matter was before the high companyrt when such an order was being prayed for in august 1961 the claim for accounts was hopelessly barred by limitation.
the facts necessary to appreciate the points raised before us are briefly as follows the plaintiff who is the appellant before us and one jamnadas ghelabhai were partners in a business companymenced in october 1913 and carried on under the name and style of bharat medical stores at broach the two partners having equal shares.
the judgment of das and ayyanger 11.
the appellant said that he had offered the said sum of rs.
t. desai and a. g. ratnaparkhi for the appellant.
the appellant companysequently filed a suit in the companyrt of the civil judge at broach for enforcing the agreement which he alleged and for relief on that basis.
during the subsistence of the partnership and from and out of the assets thereof an immovable property a house was purchased at broach in july 1932 jamnadas vhelabhai died on august 12 1943 but the partnership business was companytinued thereafter by the plaintiff appellant taking in bai itcha the widow of the deceased partner in his place.
the agreement was stated to be wholly oral and was admittedly number reduced to writing.
ayyangar j. the principal point that is raised for consideration in this appeal by special leave is as regards the legality and propriety of an order by the learned single judge of the high companyrt of gujarat directing a companynter claim filed by the respondents to be treated as a plaint in a cross suit and remanding the case for trial on that basis.
2 202 9 9 but the respondents wrongfully decied the agreements and adjust ment of accounts and refused to companyvey their share in the house to the appellant and were further obstructing him in the companyduct of business.
c. mathur and ravinder narain for the respondents.
