R. S. A. No. 2109 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2109 of 2006 Date of Decision : May 10, 2010 Lalita Puri and another .... Appellants Vs. Rakesh Rao and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Munish Gupta, Advocate for the appellants. Mr. V. K. Jain, Senior Advocate with Mr. Parshant Vashisht, Advocate for respondent no. 1. * * * L. N. MITTAL, J. (Oral) : Defendants no.6 and 7, having remained unsuccessful in both the courts below, have approached this Court by way of instant second appeal. Suit was filed by respondent no.1 Rakesh Rao against appellants and proforma respondents no.2 to 6. There was a partnership firm under the name and style of M/s Shakti Foundary and Engineering Works, Old Chhachhrauli Road, Jagadhri, in which Banarasi Dass (predecessor of respondents herein i.e. plaintiff and defendants no.1 to 5) R. S. A. No. 2109 of 2006 2 and Dharam Pal Puri (predecessor of appellants herein i.e. defendants no.6 and 7) were the only two partners. Banarasi Dass died on 18.07.1991 and thereupon, the firm automatically stood dissolved. Plaintiff and defendants no.1 to 5 being two sons, a widow and three daughters of Banarasi Dass inherited half share of Banarasi Dass in the firm. However, defendants no. 3 and 4 relinquished their claim in favour of plaintiff and defendants no.1, 2 and 5. Accordingly, plaintiff and defendants no.1, 2 and 5 have 1/8th share each i.e. half share in all in the aforesaid firm. Dharam Pal Puri – the other partner died on 30.11.1994. Defendants no.6 and 7 have inherited half share of Dharam Pal Puri in the firm. However, defendants no.6 and 7 wanted to run the firm without rendering accounts. The plaintiff accordingly sought declaration that plaintiff and defendants no.1, 2 and 5 are owners in possession to the extent of 1/8 share each, whereas defendants no.6 and 7 are owners in possession of half share in the property and goodwill including movable and immovable property, building, machinery, stock etc. of the aforesaid firm. The plaintiff also claimed permanent injunction restraining defendants no.6 and 7 from conducting any business whatsoever in the name and style of the said firm or any business in the premises of the firm and from alienating the properties of the firm in any manner. The plaintiff also sought rendition of accounts of the said firm by defendants no.6 and 7 and payment of the amount found due to plaintiff and defendants no.1, 2 and 5. R. S. A. No. 2109 of 2006 3 Defendants no.2 to 5, in their written statement, admitted the claim of the plaintiff. It was also admitted that defendants no.3 and 4 have voluntarily given up their share in favour of plaintiff and defendants no.1, 2 and 5, who, thus have 1/8th share each in the firm. Defendant no.1 did not file any written statement. Defendants no.6 and 7 contested the suit and inter alia pleaded that defendant no.1 Rajesh Rao had earlier filed a suit against Dharam Pal Puri claiming similar relief and therefore, the instant suit is liable to be stayed under Section 10 of the Code of Civil Procedure (in short – CPC). It was, however, admitted that Banarasi Dass and Dharam Pal Puri were partners in the firm and both have since died. It was also admitted that defendants no.6 and 7 are legal heirs of Dharam Pal Puri. It was, however, pleaded that Banarasi Dass, vide Will dated 22.09.1989, had bequeathed his entire share in the firm in favour of his wife Ishar Devi – defendant no.2 and after death of Banarasi Dass, accounts of the firm were settled and Ishar Devi, whose share was found to be Rs.1,96,428.90 paise, signed the documents regarding rendition of accounts. Thereafter, the firm was being run by Dharam Pal Puri as its sole proprietor. Defendant no.2 is entitled to Rs.1,96,428.90 paise as per settlement of accounts and defendants no.6 and 7 are ready to pay the same. Learned Additional Civil Judge (Senior Division), Jagadhri, vide judgment and decree dated 03.04.2004, decreed the plaintiff's suit, as R. S. A. No. 2109 of 2006 4 prayed for. Defendants no.6 and 7 were held liable to render the accounts of the firm. First appeal preferred by defendants no.6 and 7 has been dismissed by learned Additional District Judge, Jagadhri, vide judgment and decree dated 23.08.2005. Feeling aggrieved, defendants no.6 and 7 have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Before proceeding to consider the rival contentions raised at the bar by learned counsel for the parties, it is imperative to notice that the trial court has committed a clerical error, which has also not been corrected by the lower appellate court. The relief sought was that plaintiff and defendants no.1, 2 and 5 are owners in possession of 1/8th share each, but inadvertently, the trial court has granted relief that plaintiff and defendants no.1 to 5 are owners in possession of 1/8th share each. In fact, defendants no.3 and 4 had already relinquished their claim in favour of plaintiff and defendants no.1, 2 and 5. There is no objection to the correction of the aforesaid clerical error by counsel for the parties before me. Accordingly, decree of trial court, as affirmed in first appeal, shall be deemed to be to the effect that plaintiff and defendants no.1, 2 and 5 are owners in possession of 1/8th share each and defendants no. 6 and 7 are owners in possession of half share of the aforesaid firm. The remaining relief granted by the trial court shall subsist, subject to the decision of the instant appeal. R. S. A. No. 2109 of 2006 5 Learned counsel for the appellants vehemently contended that Rajesh Rao – defendant no.1 had earlier filed a suit against Dharam Pal – predecessor of defendants no.6 and 7 claiming similar relief, but the said suit was dismissed as withdrawn on 18.03.1994 and therefore, defendant no.1 is estopped from claiming the said share. The contention cannot be accepted. The instant suit has not been filed by Rajesh Rao, whose previous suit was dismissed as withdrawn. The instant suit is therefore not barred by Order 23 Rule 1 (4) CPC. The instant suit is also not barred by principles of res judicata, as postulated by Section 11 CPC because the previous suit was not adjudicated on merits. Learned counsel for the appellants contended that defendant no.1 is estopped from claiming his share in the instant suit after withdrawal of his previous suit. This contention is also untenable. The principle of estoppel is not attracted to the case in hand. Moreover, if this plea is accepted, the question would arise as to who would be entitled to share of defendant no.1 in the firm. Obviously, defendants no.6 and 7 can have no right or claim to the said share of defendant no.1. The share has to go to defendant no.1 himself. It is also worth noticing that present plaintiff and defendants no.2 to 5 were not party to the previous suit instituted by defendant no.1 alone against Dharam Pal Puri and therefore, there could be no valid adjudication in the said suit in the absence of all necessary parties. The said suit was withdrawn by defendant no.1 herein after the institution of present suit, in which all necessary parties have been impleaded. R. S. A. No. 2109 of 2006 6 Consequently, withdrawal of the previous suit instituted by defendant no.1 has no adverse bearing on his rights. In addition to the aforesaid, plaintiff in the instant suit had sought temporary injunction, which was declined by the trial court. Plaintiff preferred appeal against the said order of the trial court. In the said appeal, counsel for defendants no.6 and 7 made a statement that the parties have agreed for dissolution of firm and rendition of accounts through intervention of Arbitrator and the firm is constituted by heirs of Banarasi Dass and Dharam Pal Puri in equal shares in the partnership. Defendants no.6 and 7 also stated that they would not sell any property of the partnership firm till the matter is decided by the Arbitrator. Accordingly, the matter was referred to Arbitrator, who gave his Award, but the Award was set aside on the technical ground that defendant no.7 was minor. However, in view of the aforesaid statement made by counsel for defendants no.6 and 7, in proceedings arising out of the present suit, the aforesaid contention, raised on behalf of defendants no.6 and 7/appellants, does not lie in their mouth. It stands admitted in the aforesaid statement made on 19.07.1976 (Ex.P-3) that branches of Banarasi Dass and Dharam Pal Puri have half share each in the property of the firm. Another plea raised on behalf of the appellants is that Banarasi Dass had executed Will in favour of Ishar Devi, with whom the accounts were settled by Dharam Pal Puri. However, there is not even iota of R. S. A. No. 2109 of 2006 7 evidence to prove the alleged Will and therefore, alleged settlement of accounts with Ishar Devi would have no bearing. Both the courts below have arrived at concurrent finding against the appellants. The said finding is practically based on admitted facts. The same does not warrant any interference at the hands of this Court in Regular Second Appeal nor the said finding is shown to be illegal or perverse in any manner. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed, except correction of clerical error in the judgment and decree of the trial court, as noticed herein before. May 10, 2010 ( L. N. MITTAL ) monika JUDGE