TaxTMI 
TaxTMI 
1974 (4) TMI 112
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....me and style of Rajasthan Textile Industries shall be dissolved with effect from 1st October, 1952, Shri Harinarain Rathi however desires to continue it. The following arrangement has therefore been agreed: (a) That a balance-sheet exhibiting the ' affairs of the business as on 30th September may be drawn up and signed by the partners in token of their acceptance. (b) That Shri Shivballabh Mandhana should agree to leave with Shri Harinarain Rath; assets and stock-in-trade amounting to Rs. 12,500 where with to carry on the business. This amount should be in addition to the liabilities of the partnership business as mentioned in the balance-sheet as on 30th September, 1952. (c) That the stock-in-trade remaining in the partnership business shall be deposited with Shivballabhji Mandhana and removed as and when required against cash payment A store-keeper shall be kept in charge of this stock by Shivballabh Mandhana who will be paid by Harinarain Rathi. The salary shall not exceed Rs. 100. Interest on this sum shall be paid by Harinarain Rathi at Rs. 9% per annum monthly. (d) Interest at Rs. 9/-% per annum shall also be paid by Shri Harinarain Rathi on account of Rs. 125....
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....ets and stock-in-trade deposited with Shiv-ballabh were sold to Harinarain. The assets and stock-in-trade deposited with Shivballabh remained in the custody of Vishnuswaroop who was appointed as store-keeper. It is said that Vishnuswaroop allowed Harinarain ta take away the whole of the assets without making any payment. On failure of Harinarain to repay the various amounts due from as per terms of the deed of dissolution, Shivballabh instituted three suits on 28-9-55 in the Court of the Additional District Judge No. 1, Jaipur City. The first suit related to the recovery of Rs. 13272/15/6, the amount of loss in the partnership business. The second suit related to the recovery of Rs. 17280/4/6, the value of the assets deposited with Shivballabh and subsequently removed by Harinarain. The third suit is the suit out of which this appeal arises. It relates to the recovery of Rs. 12,500 with interest thereon as also the interest on the amount of Rs. 17280/4/0. The details of the amount claimed by the plaintiffs in this suit are as under: 1. Amount of stock-in-trade left with defendant Harinarain Rs. 12500 2. Interest on the above amount @ 9% per annum plus interest on the su....
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.... by Shivballabh and it was not necessary to obtain probate of the will as it was not executed in Bombay or Madras or Calcutta. In the result, the learned Additional District Judge after deducting the amount repaid by Harinarain from the principal amount of Rs. 12500 passed a decree for Rs. 7712 as principal and Rs. 3281.25 by way of interest--total Rs. 10,993.25 with proportionate costs and pendente lite and future interest at the rate of six per cent per annum on the principal sum of Rs. 7712/-. It is against this decree that the defendants have preferred this appeal. 4. The plaintiff-respondents have filed cross-objections with the prayer that the decretal amount be enhanced by Rs. 4788/-. I first take up the appeal filed by the defendants. Arguing the appeal, Mr. P. C. Bhan-dari, the learned advocate for the appellants, restricted his arguments to the following points only: 1. That the plaintiffs have failed to prove the will dated 17-11-58 in accordance with law. 2. That the suit was not maintainable on account of splitting of cause of action. 3. That there is no reliable proof that the assets and stock-in-trade worth Rs. 12,500 were handed over to defendant H....
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....ct causes of action and therefore the provisions contained in Order 2, Rule 2, C. P. G. cannot apply to the present case. It is further contended that since the present suit was filed on the same date on which the other two suits were filed, the question oi relinquishment of a part of a claim does not arise. Order 2, Rule 2, G. P. C. runs as under: "Rule 2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court, (2) Relinquishment of part of claim.--Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs.-- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. ....
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....ity between the cause of action on, which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar, it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2, Rule 2, C. P. C. can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits.....Just as in tha case of a plea of res judicata which cannot be established in the absence on the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under Order 2, Rule 2, C. P. C. cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of me cause of action in the two suits the defence which raises t....
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....d in second clause of Section 43 (corresponding to Sub-rule (2) of Order 2, Rule 2, C. P. C.), that "he should not afterwards sue" in respect of the portion of the cause of action omitted in the former suit (bracketing is mine). It was further observed by Rivaz J.- "I cannot agree with the contention that because the two suits were numbered 42 and 43 respectively, in the first Court's register, that it must be therefore taken as proved that the suits were filed one after the other in the order which the numbers indicate. The argument deducible from the numbering of the suits is quite inconclusive, the plaints may (for all we know) have been presented together or possibly in the reverse order to that indicated by the numbers." In Murti v. Bholaram ILR (1894) 16 All 165, A Full Bench of the Allahabad High Court laid down that where two suits are filed on the same day it must be presumed until the contrary is proved, that they were presented and admitted in the order in which their numbers appear in the Register of Civil Suits. This Fun Bench decision was later on followed by the Rangoon High Court in The Standard Electric and Motor Works v. Picture Palace AIR 1924 Ran 161 i....
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.... on the same day and bear consecutive numbers. It is reasonable to suppose that they were presented simultaneously. It has been held by the Allahabad High Court in 16 All. 165 and by the Rangoon High Court in 1 Rangoon 682 that in such circumstances the suit bearing the later number is to be presumed to have been filed afterwards. The basis of these decisions is that if Order 2, Rule 2 (or Section 43 of the old Code), were not to be applied in the case of suits filed on the same day, it would open the door to deliberate and continual evasion of the law. For instance, if A buys on the same occasion seven different articles from B in B's shop, B might file on the same day seven suits against A in respect of the price of the seven articles sold which, it is said, would be absurd. I am by no means satisfied, however, that this argument ab inconvenient really makes it necessary to strain the language of the rule and to assume contrary to the fact that one of two plaints presented simultaneously has been presented afterwards. The Madras High Court has declined to make this assumption (49 Mad 869), but apparently it thought it necessary nevertheless to assume that one or the other of ....
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....o suits have already been decided and there is no suggestion that the defendants were in any way prejudiced by splitting of cause of action. In any case, the bar under Order 2, Rule 2, C. P. C. is not attracted and the present suit cannot be Held to be not maintainable. I am further of the opinion that Order 2, Rule 2, C. P. C. does not require that when a single transaction gives rise to several causes of action, they should all be combined in one suit. In the present case, the deed of dissolution gave rise to several causes of action and it was not necessary for the plaintiffs to include all the causes of action in one suit. The first suit related to the recovery of the amount of loss suffer-red by the defendant Harinarain. The second suit related to the recovery of the price of assets and stock in trade which were unauthorisedly handed over by the store-keeper to the defendant Harinarain. The present suit related to the price of the assets and stock-in-trade handed over to Harinarain and for the repayment of which Harishchander stood surety. It is however contended on behalf of the appellants that the suit for recovery of interest on the sum of Rs. 17280/4/6 relating to the asse....