Case ID: 2216

Judgment:
Appeal No. 897 of 1964. 887 Appeal by special leave from the judgment and order dated November 14	 1961 of the Allahabad High Court in Civil Revi sion No. 686 of 1953. Bishan Narain and M. I. Khowaja	 for the appellant. Niren De. Addl. Solicitor General	 M. V. Goswami and Yogeshawr Parshad	 for the respondent. The Judgment of the Court was delivered by Bhargava	 J. The respondent firm	 K. B. Bass & Co.	 instituted a suit on 13th April	 1951	 for rendition of accounts against the appellant firm	 Messrs Hulas Rai Baij Nath	 alleging that the appellant was the commission agent of the respondent and that the accounts between respondent as the principal and appellant as the agent had not been settled since the dealings be an in the year 1941 onwards. Tentatively	 a sum of Rs. 2	100/ was claimed in the plaint. In the written statement filed on behalf of the appellant	 the suit was contested on various grounds; but for the purposes of this appeal	 we need mention the pleas taken in only two paragraphs 8 and I 1. In paragraph 8	 it was pleaded that one Lala Shiva Charan	 a partner of the respondent firm	 had come with a Munim in the month of Agahan last and account. 	; were fully explained to him as worked out upto Kartik Sudi 15. Sambat 2007. In that statement of account	 a sum of Rs. 10	677 14 3 was found due to the appellant from the respondent and the representatives of the respondent asked for two months ' time for making the payment of the amount found due. It was thus urged that there was no occasion for rendition of accounts and the plaintiff 's suit was not fit to proceed according to law. In paragraph I 1	 the appellant pleaded that "if	 in the opinion of the court	 the court has jurisdiction to try the suit and it is necessary to tender the accounts	 it is equitable that a decree for the amount which may be found due to the contesting defendant	 after rendition of accounts	 together with costs and interest be passed in favour of the contesting defendant	 after necessary court fee being realized from the defendant. " A number of issues were framed and the case was taken up for recording of evidence on several dates of hearing. Some of the issues were even given up during the 'trial. Ultimately	 on 5th May	 1953	 after a considerable amount of evidence had been recorded	 an application was presented on behalf of the plaintiff respondent	 for withdrawal of the suit. The round given for withdrawal was that the respondent firm was in the charge of one Bhagwat Charan who had colluded with the appellant and litigation was going on between the respondent and Bhagwat Charan for effecting partition of the business. Consequently	 it was difficult to prosecute the suit	 No prayer was made for permission to file a fresh suit. The appellant filed an application objecting to this application for with. L9Sup. CI/67 13 888 drawal. The main ground taken for contesting this application for withdrawal was that	 in a suit of this nature	 it is permissible to pass a decree in favour of the defendant if	 on accounting	 something is found due to him against the plaintiff	 and it followed that	 if the defendant paid court fee on 'the amount which was found due to him from the plaintiff	 his position became that of 	A plaintiff himself and he became entitled to have 'the accounting done and to obtain a decree. It was urged that the plaintiff 's game in withdrawing the suit after protracted duration and considerable expenditure on the part of the defendant was to defeat this right of the defendant. The trial Court held that the right of the plaintiff in this suit to withdraw under 0. 23	 r. 1 of the Code of Civil Procedure was inherent and such a right could be exercised at any time before judgment. All 'that the defendant could claim was an order for costs in his favour. The Court	 therefore	 dismissed the suit	 awarding costs of the suit to the appellant. The appellant filed a revision in 'the High Court of Allahabad against this order	 with a prayer that the High Court may set aside the order of the trial Court and remand the suit for trial according to law. The High Court dismissed the application for revision; and the appellant has now come tip to this Court in 'this appeal by special leave. The short question that	 in these circumstances	 falls for decision is whether the respondent was entitled to withdraw from the suit and have it dismissed by the application dated 5th May	 1953 at the stage when issues had been framed and some evidence had been recorded	 but no preliminary decree for rendition of accounts had yet been passed. The language of 0.23	 r. 1. sub r. (I )	 C.P.C.	 gives an unqualified right to a plaintiff to withdraw from a suit and	 if no permission to file a fresh suit is 	 ought under sub r. (2) of that Rule	 the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of that subject matter under sub r. (3) of that Rule. There is no provision in the Code of Civil Procedure which requires the Court to refuse permission .to withdraw the suit in such circumstances and to compel tile plaintiff to proceed with it. It is	 of course	 possible that different considerations may arise where a set off may have been claimed under 0. 8 C.P.C.	 or a counterclaim may have been filed	 if permissible by the procedural law applicable to the proceedings governing the suit. In the present case. the pleadings in paragraphs 8 and II of the written statement. mentioned above	 clearly did not amount to a claim for set off. Further	 there could be no counterclaim	 because no provision is shown under which a counter claim could have been filed in the trial Court in such a. suit. There is also the circumstance that the application for withdrawal was moved at a stage when no preliminary decree had been passed for rendition of account and	 in fact	 the appellant 889 was still contending that there could be no rendition of accounts in the suit	 because accounts had already been settled. Even in para 11	 the only claim put forward was that	 in case the Court found it necessary to direct rendition of accounts and any amount is found due to the appellant	 a decree may be passed in favour of the appellant for that amount. In this paragraph also	 the right claimed by the appellant was a contingent right which did not exist at the time when the written statement was filed. Even if it be assumed that the appellant could have claimed a decree for the amount found due to him after rendition of accounts	 no Such right can possibly be held to exist before the Court passed preliminary decree for rendition of accounts. It is to be noted that in the case of a suit between principal and agent	 it is the principal alone who has normally the right to claim rendition of accounts from the agent. The agent cannot ordinarily claim a decree for rendition of accounts from the principal and	 in fact	 in the suit	 the appellant	 who was the agent of the respondent	 did not claim any rendition of accounts from the respondent. In 'these circumstances; at the stage of withdrawal of the suit	 no vested right in favour of the appellant had come into existence and there was no ground on which the Court could refuse to allow withdrawal of the suit. It is unnecessary for us to express 	my opinion as to whether a Court is bound to allow withdrawal of a suit to a plaintiff after some vested right may have accrued in the suit in favour of the defendant. On the facts of this case. it is clear that the right of the plaintiff to withdraw the suit not at all affected by any vested right existing in favour of the appellant and	 consequently	 the order passed by the trial Court was perfectly justified. On behalf of the appellant	 reliance was placed on the views expressed by a Division Bench of the Madras High Court in Seethai Achi vs Meyappa Chettiar and Others (1)	 where the Court held: "Ordinarily	 when the Court finds no impediment to the dismissal of a suit after the announcement of the withdrawal of theclaim by the plaintiff	 it will simply say that the suit is dismissed as the plaintiff has withdrawn from it. An order as to costs will also be passed. But several exceptions have been recognised to this general rule. ]n suits	 for partition	 if a preliminary. decree is passed declaring and defining the shares of the several parties	 the suit will not be dismissed by reason of any subsequent withdrawal by the plaintiff	 for the obvious reason that the rights declared in favour of the defendants under the preliminary decree would be rendered nugatory if the suit should simply be dismissed. So also in partnership suits and suits for 890 accounts	 where the defendants too may be entitled to some reliefs in their favour as a result of the settlement of accounts	 the withdrawal of the suit by the plaintiff cannot end in the mere dismissal of the suit. " We do not think	 as urged by learned counsel	 that the learned Judges of the Madras High Court were laying down the principle that	 in a suit for accounts	 a defendant is always entitled to relief in his favour and that the withdrawal of such a suit by the plaintiff cannot be permitted to terminate the suit. In the context in which that Court expressed its opinion about suits for accounts	 it clearly intended to lay down that the dismissal of the suit on plaintiff 's withdrawal is not to be necessarily permitted	 if the defendant has become entitled to a relief in his favour. But such it right	 if at all	 can in no circumstances be held to accrue before a preliminary decree for rendition of accounts is passed. In fact	 in mentioning suits for partition and suits for accounts	 the Court was keeping in view the circumstance mentioned in the earlier sentence which envisaged that a preliminary decree had already been passed defining rights of parties. In any case	 we do not think that any defendant in a suit for rendition of accounts can insist that the plaintiff must be compelled to proceed with the suit at such a stage as the one at which the respondent in the present case applied for withdrawal of the suit. The appeal	 therefore	 fails and is dismissed with costs.

Summary:
In a suit for rendition of accounts	 the defendant pleaded that accounts	 had been settled and he was to get certain money from the plaintiff; that there could be no rendition of accounts; and that if the court concluded that rendition of account was necessary	 a decree for the amount which may be found due to the defendant with costs and interest may be passed in favour of the defendant after necessary court fee was realised from the defendant. While no preliminary decree for rendition of accounts had 'been passed	 and	 in fact	 the defendant was .still contending that there could be no rendition of accounts in the suit. the plaintiff applied for withdrawal of the suit. The defendant opposed the withdraw claiming that in a suit of this nature	 his position became that of a plaintiff and he became entitled to have the accounting done and to obtain a decree	 and the withdrawal after protracted duration was to defeat this right of the defendant. The trial Court allowed the withdrawal	 which was upheld by the High Court. In appeal by the defendant	 this Court HELD : At the stage of withdrawal of the suit	 no vested right in favour of the defendant had come into existence and there was no ground on which the Court could refuse to allow withdrawal of the suit. There is no provision in the Code of Civil Procedure which requires the Court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it. It is	 of course	 possible that different considerations may arise where a set off may have been claimed under 0.8	 C.P.C.	 or a counter claim may have been filed		 if permissible by the procedural law applicable to proceedings governing the suit. In the present case	 the pleadings did not amount to a claim for set off. Even if it be assumed that the defendant could have claimed a decree for the amount found due to him after rendition of accounts	 no such right can possibly be held to exist before the Court passed a preliminary decree for rendition of accounts. In the case of a suit between principal and agent	 it is the principal alone who has normally the right to claim rendition of accounts from the agent. The agent cannot ordinarily claim a decree for rendition of accounts from the principal and	 in fact	 in the suit	 the defendant	 who was the agent of the respondent	 did not claim any rendition of accounts from the plaintiff. [888F H] 889B D] Seethai Achi vs Meyappa Chettiar and Others	 A.I.R. 1934 Mad	 337. refered to