1. This is a defendant's appeal. The dispute relates to a press known as Hari Kishen Karyalay Shukla Printing Press. The plaintiff alleged that on 6th March 1935, the press was opened in partnership with the defendant on certain conditions set out in the plaint, that on 11th February 1943, he served a notice on the defendant terminating the partnership and that he was, therefore, claiming the following reliefs:
After accounting, sale of the partnership property and payment of the partnership debts a decree for Rs. 2100 or any other sum found due to the plaintiff. be passed in favour of the plaintiff against the defendant. That the defendant be made to pay the costs of the suit. That any other relief deemed just by the Court be granted.
In the alternative the plaintiff prayed:
That in case the dissolution of partnership is not proved a decree for dissolution of partnership be passed in favour of the plaintiff against the defendant.
The suit has been decreed for the second relief as the lower Courts have held that the notice alleged to have been given by the plaintiff on 11th February 1943, was not given. The defendant has appealed.
2. The point raised on his behalf is that the plaintiff's present suit should have been dismissed as it was barred by the principle of constructive res judicata. The plaintiff had filed another suit no. 10 of 1937 in the Court of the learned civil Judge of Lucknow with regard to this very press. In that suit the plaintiff had alleged that his father was the sole owner of the press and the defendant had been working as a mere-servant. The plaintiff asked for accounts from the defendant and for payment of the money that might be found due to the plaintiff after accounting. It was further alleged in the plaint that the defendant was falsely setting up a partnership with his father Mathura Das and if there was any such partnership it was dissolved on 30th March 1935, on Mathura Dass' death. The plaintiff went on to say that if for any reason it be held that the defendant was a partner to the extent of one-half, in that case the partnership may be dissolved. That the plaintiff no longer wanted to continue the partner-ship with the defendant and hence the suit. On these allegations the following alternative relief was asked for:
That if it be held by the Court that the parties are partners, even in that case, the partnership be dissolved and the defendant be ordered to render ac-counts relating to the entire joint business and whatever amount and cash be found to belong to the plaintiff, it be separated and delivered to the plaintiff.
3. Plaintiff's father had died on 30th March 1935, and the previous suit was filed on 12th August 1937. The defendant in his written statement had alleged that he was the sole owner of this press and Mathura Das was merely a creditor, that on 6th March 1935 accounts were settled between Mathura Dass and the defendant and a sum of Rs. 5200 was found due to Mathura Dass. He further said that on 6th March 1935, there was an incomplete agreement of partnership, there being a proposal that the plaintiff and the defendant should be partners to the extent of half and half but the partnership deed was never executed and the plaintiff and the defendant, therefore, did not become partners. The case was referred to arbitration and before the arbitrator the plaintiff wanted to rely on the agreement dated 6th March 1935, to prove that he was a partner with the defendant with effect from that date. The defendant protested that the plaintiff should not be allowed to change his ground and claim relief on a basis which had never been originally set out in his plaint. The objections filed on behalf of the defendant were in these terms:
That if the case of the plaintiff had been based on partnership, then the defendant would have taken another defence for it. An issue in respect of partnership having been framed, it is feared that such matters might be decided, upon which none of the parties rely.' Further by another objection of the same date the defendant said:
That in the course of arguments, it has been first argued on behalf of the plaintiff that a new agreement of partnership was entered into between the defendants and the plaintiff on 6th March 1935, and that the present suit relates to the dissolution and accounts of that partnership.
That by a perusal of the entire plaint and written statement (sic) of partnership dated 6th March 1935 in the plaint, and for this reason there is no defence in respect of it in the written statement filed by the defendant.' The arbitrator gave his award on 19th January 1938. He had framed the following issues for decision:
1. Whether the plaintiff or the defendant is its (press) owner or whether it was a partnership business?
2. What was the position of the defendant if the plaintiff was its (press) owner and what was the position of the plaintiff if the defendant was its owner?
3. If it was a partnership concern how much is due to whom after taking accounts?
4. Whether there has ever been an accounting between the parties? If so, what amount was found due to which of the parties from the other?
5. What property constitutes the firm (press) property?
4. On the first issue whether the plaintiff or the defendant was the owner of the press or whether it was a partnership business, the arbitrator came to the conclusion that 'Behari Lal was the proprietor of the press but Mathura Dass did invest the money in consideration of his old services,' and on issue No. 5 as to 'what property constitutes the firm (press) property,' he gave the following decision:
Regarding this issue I hold that the entire property mentioned in the report of the receiver belongs to the Karkhana wherein the plaintiff and the defendant are partners in accordance with the document in writing dated, 6th March 1935 (Sharikdar bamaujib iqrarnama 6th March 1935), but it is objected by the defendant's counsel that the plaintiff, in this case, wants a decision regarding partnership which cannot be done; on the other hand it is submitted by the plaintiff's counsel that the questions of the division of partnership assets and the dissolution of partnership business can be decided in this suit and the court-fee therefor has also been paid. I accordingly leave the decision of this point to the Court as to whether the plaintiff can get the question of partnership decided in this case or that he may file a separate suit therefor.
5. Both parties filed objections. The defendant's objection was that the arbitrator was not competent to give any decision with regard to the alleged partnership dated 6th March 1935 and his decision on issue 5 was, therefore, beyond the scope of the reference and should be deleted,
6. The objections were heard by the learned Civil Judge who held that the plaintiff had not claimed any relief in his plaint on the basi3 of the partnership alleged to have been entered into on 6th March 1935, that he had set up in his plaint a partnership with his father which, on the father's death, if it was deemed to have continued between the plaintiff and the defendant, should be dissolved and the plaintiff should be given his proper relief. The learned Judge, therefore, held that:
Any question relating to any partnership that came into existence on 6th March 1935, was never even hinted at in the plaint or other pleadings nor was any such matter ever referred to the arbitrator. The arbitrator's reference to that matter in the last portion of his award is quite separate from the rest of the award and should in the circumstances of the case be ignored.
He gave directions that the decree was to be prepared in accordance with the award but by deleting any reference to the partnership dated 6th March 1935. The learned civil Judge also came to the conclusion that the arbitrator had not purported to give any decision on the question whether there was a partnership on 6th March 1935 but he only made a reference to it in accordance with the claim set up by the plaintiff.
7. Two appeals were filed in the Chief Court of Oudh that came up for decision before a Bench of the Chief Court. The learned Judges agreed with the decision of the lower Court that the plaintiff not having set up the agreement dated 6th March 1935, he could not be allowed to rely on it at the time of arguments and the arbitrator was right in refusing to decide the point. It is clear, therefore, that the Chief Court was also of the opinion that the arbitrator had not decided that there was any partnership entered into between the plaintiff and the defendant on 6th March 1935.
8. Another point raised before the Chief Court was that the decision of the arbitrator on the first issue that the defendant was the sole proprietor of the press and Mathura Dass was merely a creditor should be interpreted to refer to the state of things prior to 6th March 1935. On this point also, the learned Judges were against the plaintiff and decided that there was nothing in the award which would justify them in holding that the arbitrator intended to refer merely to the period prior to 6th March 1935.
9. In view of the findings quoted above, we have to see whether the present suit is barred by Section 11, Civil P.C. If the defendant was the sole proprietor of the press in the year 1937 then obviously the plaintiff could not be a partner thereof on that date and the finding that the arbitrator's decision referred to the state of affairs not prior to 6th March 1935, but to the date when he was giving his award would operate as res judicata and would bar the plaintiff's claim that in the year 1935 there was a partnership by which he became a partner with the defendant and the press ceased to be the sole property of the defendant.
10. It is urged by learned Counsel for the appellant that the plaintiff should have put forward in his previous suit his claim on the basis of any partnership dated 6th March 1935, and if he did not, the present suit is barred by Explanation 4 to Section 11, Civil P.C. The relief claimed in the previous suit which has been quoted by us was that if the Court came to the conclusion that on the date of the suit there was a partnership between the plaintiff and the defendant, the partnership should be dissolved and the defendant should be directed to render accounts. This relief was asked for on the ground that if there was a partnership between the plaintiff's father and the defendant, which partnership had continued even after the plaintiff's father's death, it should be dissolved. The plaintiff could claim the same relief on the basis of the agreement dated 6th March 1935, and, if there was a partnership between the plaintiff and the defendant dated 6th March 1935, there could not be a separate existing partnership between the plaintiff's father and the defendant from that date to the date of plaintiff's father's death on 30th March 1935. Learned Counsel has urged that his client may have been at fault in keeping back the partnership of 6th March 1935, but there was no duty cast on him to claim dissolution of that partnership if he did not want such dissolution. The answer to this argument is that if the plaintiff had been granted the relief that was claimed by him, the agreement dated 6th March 1935, could not subsist and it would have automatically come to an end. The relief in effect was that if there was a partnership between the plaintiff and the defendant on the date of the suit that partnership should be dissolved. The plaintiff envisaged one sot of circumstances in which that partnership may be held to exist. He kept back the other grounds on which the plaintiff and the defendant could be held to be partners in the same business. We consider that he ought to have raised this plea if he wanted the relief that he had claimed in his previous suit and the case, therefore, to our minds comes, clearly under Explanation 4 to Section 11, Civil P.C.
11. Learned Counsel has urged that we should not interpret the reliefs in the previous suit but accept the interpretations that were put on them in the earlier litigation by the learned Civil Judge and the Chief Court. We are of the opinion that the relief was never interpreted in the sense now argued by learned Counsel. What the Court held was that the plaintiff had claimed the relief on certain grounds set out in his plaint and he could not at that stage of the case allege a new ground for the same relief.
12. Learned Counsel has cited before us the case of Sardani Vidya Wanti Kaur and Anr. v. Sardar Shahdev Singh A.I.R. (25) 1938 Lah. 139. In that case a suit was filed against the defendant for his ejectment as a trespasser. The defendant pleaded that he was a co sharer with the plaintiff. The decision was in favour of the defendant and the plaintiffs suit was dismissed. The plaintiff then filed a second suit 'for accounts on the ground that he was a co-sharer. The point raised in defence was that the second suit was barred by res judicata. It was held that the two suits were brought in different capacities. The right to accounts was not in issue in the former suit and hence the rule of constructive res judicata would' not apply. If the previous suit had been filed for accounts on the ground that the plaintiff-was a co-sharer and certain facts had been set out on the basis of which the plaintiff claimed that he was a co-sharer and having failed to substantiate his claim he had filed a second suit for the same relief setting out certain new grounds which he had failed to set out in his previous suit, it could hardly be urged that the second suit was not barred. Learned Counsel conceded that it would be so. But he urged that this was not a case of that nature. We see no difference between such a case and the case thaw we have before us.
13. Learned Counsel has relied on certain-observations in the case of Palet Chandrayya v. Yeruva Chinnappa Reddi : AIR1941Mad753 . The learned Judge held in that case that the right of constructive res judicata can only apply to matters actually decided by the judgment and to all matters which are necessarily deemed to have been decided by that judgment. But where the relief prayed is not dependent on the adjudication of a particular matter in issue it cannot be said that that matter must be deemed to have been also decided by the judgment. The section itself' lays down that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit and, therefore, decided by the Court. In the case before us the plaintiff claimed a relief for dissolution of partnership. That relief was refused to him and it was held that the defendant was the owner of the press and to our minds the decision comes under the rule laid down by the learned Judge of the Madras High Court that the point should be deemed to have been decided by. that judgment.
14. There is another point which we may mention. We did not, however, hear, any arguments on the point. In the agreement dated 6th March 1935, there is a clause that this sum of Rs. 5,200 would be a partnership debt and would be paid off from the profits of the partnership and till the amount was paid off no party would be entitled to claim any share in the profits. The plaintiff, therefore, if he had relied on this agreement could not have claimed a decree for Rs. 5,200 and he could not have been given a decree for the balance that had 'remained outstanding (i.e. for Rs. 4,200) on the date when the arbitrator gave his award. It appears to us, although we do not wish to give any decision on the point, that it is not open the plaintiff after having got a decree and the money awarded to him under that decree on the basis that there was no partnership, to go back on it and claim a relief for accounts on the basis of a subsisting partnership in the year 1937.
15. The result, therefore, is that this appeal is allowed, the decrees of the lower Courts are set aside and the plaintiff's suit is dismissed with costs in all the Courts.
16. We understand that after the decision of the suit by the lower Courts a receiver was appointed. Learned Counsel has prayed that the [receiver be discharged. The receiver having Sheen appointed by the lower Court, the order of discharge should be passed by that Court inasmuch as the Court will have to consider he accounts etc., of the receiver. In view of our decision, the defendant is entitled to get back immediate possession of the property and we direct that the receiver shall transfer possession of the property to the defendant immediately. The order of discharge of the receiver will be passed by the lower Court in accordance with law.