1. The facts which give rise to thisappeal may be briefly stated as follows:
2. Om Prakash, defendant No. 2, and the plaintiff were partners. The partnership was dissolved and accounts were taken and it was agreed that the plaintiff would get all the assets and discharge all the liabilities of the partnership and that the defendant No. 2, would receive as his share a lump sum of money.
3. When the plaintiff examined the partnership accounts, he found a debt item recoverable from defendant No. 1 Bankey Lal. A suit was filed by the plaintiff against Bankey Lal defendant No. 1 and Om Prakash defendant No. 2. Against Bankey Lal, the cause of action was the debt owing to the dissolved partnership. Against Om Prakash the cause of action as stated before me now seems to be founded on the allegations that Om Prakash had not kept the account books correctly and what had been shown as a debt due to the firm from Bankey Lal was in fact not a debt due from him but was a repayment of a part of the amount which had been received and that the plaintiff having been deceived the settlement was not binding and an equivalent amount was recoverable from Om Prakash.
The defendants at any rate in their written statements had taken up the position as set out above and that is how the court below has understood the matter. The court below has dismissed the plaintiff's suit as against Bankey Lal on the ground that Bankey Lal owed nothing to the firm. It has also dismissed the suit as against Om Prakash. It has come to the conclusion that it was not established that the sum of Rs. 1,000/- was due to the plaintiff's firm from defendant No. 1 but that Rs. 1,000/- was repaid to the firm by Bankey Lal before the firm was dissolved and that no money was returned or paid after the dissolution of the partnership or after the 3rd. of January, 1943 to Om Prakash so as to make him accountable as a person who had received money to the use of another. Upon these finding the suit against Om Prakash was rightly dismissed.
4. It is clear moreover from the judgment of the court below, that the entries in the firm's account books were taken into consideration the timethe accounts were settled and that the sum of Rs. 2,700/- which was deposited in the name of Om Prakash and which stood credited to him, was taken into account in fixing the amount due to the defendant No. 2. It is also clear that the debt item of Rs. 1,000/- as against Bankey Lal stood entered in the books of the firm, and all these entries were taken into consideration on the basis that they were correct entries when the settlement was made. So long as the settlement stands, even if the settlement was procured by means of some fraud practised bydefendant No. 2 on the plaintiff, the plaintiff andthe defendant No. 2 would be bound by the settlement.
If the plaintiff's case was that that settlement did not bind him, then the proper course for the plaintiff would have been to file a suit for setting aside the said settlement and asking that the defendant No. 2 should render accounts of the dissolved partnership so that the amount due to the plaintiff could be ascertained. In my view, it is not possible to claim in one action a relief against an alleged debtor of the dissolved partnership and also a relief against one of the partners of the dissolved partnership for a specific sum of money which would involve the setting aside of a settlement of accounts.
The right to such two reliefs could not be said to be in respect of the same transaction or arising out of the same transaction within the meaning ofOrder 1, Rule 3, C. P. C. In this view of the matter, I think that the plaintiff's suit would have been liable to be dismissed also as against defendant No. 2 even if the setting aside of the settled accounts and a decree for accounts had been asked of against defendant No. 2.
5. Learned counsel for the appellant prayed thathe should be permitted to amend his plaint andclaim a decree for accounts as against defendantNo. 2. I do not think that I can permit such anamendment particularly at this stage because it willlead to a multifariousness of causes of action andin my view the two reliefs, one for a decree againsta debtor and the other for a decree against a partner, ought not to be and cannot be asked for in thesame suit. Accordingly, this appeal is dismissed withcasts.
6. Leave to file a special appeal is granted.