9911796707
TMI Blog1997 (1) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... m the plaintiff and defendant, S/Sri Budh Prakash Rastogi, and Sushil Kumar Rastogi were also partners. The new firm was created on 1-4-1968 with only plaintiff and the defendant as partners. Plaintiff filed suit No. 933 of 1969 praying for the relief of dissolution of the firm and for the accounting from Apr., 1966 to Nov., 1969. The suit was filed on 15-11-1969. After the suit was filed by the plaintiff, a Commission was issued by the Court ex parte. The commission visited the shops of the firm on 16-11-1969 for inspection. It appears that after the visit of the Commission at the firm's shops, certain developments took place, which ultimately resulted in the withdrawal of the suit by the plaintiff somewhere either on 20th or 21st Nov. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -objection holding that the plaintiff was entitled for taking the accounting of the firm from 1-4-1969 to 15-11-1969 till before the date of the dissolution of the firm on 16-11-1969. This Second Appeal has now been filed by the plaintiff with the contention that since the accounts have not been given by the defendant for the entire period during which the firm was in existence, as such, he is entitled to get the accounts of the firm from 1-4-1966 to 27-3-1970. The appellant's stand was that the firm did not dissolve on 16-11-1969, or at any time thereafter. 4. A preliminary objection was raised before me on behalf of the defendant-respondent about the maintainability of suit No. 62 of 1970 from which the present appeal has arisen. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intervention of certain relatives and well wishers of the parties, the matter was to be amicably settled, in that belief the plaintiff withdrew the suit, however since defendant did not act as per the terms settled, hence the plaintiff filed the later suit which is, therefore, not barred as the cause of action for accounting and dissolution of the firm is a recurring cause of action which for some time after filing of the suit No. 933 of 1969 was suspended for a while leading to the withdrawal of that suit but as soon as the cause of action arose, the present suit was filed which, therefore, is not barred simply because, before the earlier suit was withdrawn by the plaintiff, he had not taken permission from the Court to file a fresh suit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the claim. (4) Where the plaintiff - (a) abandons any suit or part of claim under Sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in Sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suitor part of a claim under Sub-rule (1), or to withdraw, under Sub-rule (3), any suit or part of a claim, without the consent of the other plaintiff. 7. A perusal of Rule 1 of Order XXIII of the Civil P.C. would make it clear that a plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-clause (b) of Clause (4) in the public interest. No litigant can be allowed to file one after another suit for the same cause of action, which is not only to cause harassment to the party against whom it is filed, but it has also the unnecessary impact on the public exchequer and unnecessary load on the court time. It is for this reason that Clause (4) of Rule 1 imposes a bar against filing of more than one suit for the same cause of action after withdrawal of the earlier suit. Therefore, if a suit for a cause of action filed has been withdrawn by the plaintiff then another suit for the same cause of action cannot be filed unless the withdrawal is subject to the permission granted by the court for filing another suit. The contention of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier and is in the present suit, is a recurring cause of action. Right of a partner of a partnership firm to ask for accounting from other partner of the firm is a substantive right. It can be enforced in law courts. However, once a suit is filed in pursuit of that right by the partner then withdrawal of the suit by that partner for one or the other reason amounts to abandonment of that vested right, which once abandoned cannot be claimed over again by filing another suit. 12. It has not been shown by the appellant in the present case that any fresh cause of action had arisen after the withdrawal of the earlier suit for filing of another suit. The contention regarding recurring cause of action is misconceived which is not applicable to a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
