JUDGMENT Aikman and Karamat Husein, JJ.
1. This is a reference by Government under Rule 17 of the Kumaun Rules, 1894, asking for the report and opinion of this Court on certain questions arising out of an appellate decree of the Commissioner of Kumaun. The case is a difficult one. After hearing it thoroughly and ably argued by the counsel on both sides, we reply as follows:
In the suit filed in Moradabad, the plaintiff came into Court alleging a partnership between himself and the defendant. He asserted that certain property had been acquired by the defendant out of the partnership funds, and that it had been dishonestly entered by the defendant in his own name. He asked for a declaration that the property in question was partnership property, and further asked to be put in possession of one-half of it. In that plaint he referred to the existence of other property in Naini Tal and said that as he could not legally sue for it in the Moradabad Court, he would bring a separate suit for it. The Moradabad suit was afterwards withdrawn by the plaintiff, no permission being given under Section 373 of the Code of Civil Procedure to bring a fresh suit. The plaintiff afterwards filed in the Court of the Deputy Commissioner of Naini Tal the suit which has given rise to this reference. The suit is in regard to property which, according to the statements in paragraph 1 of the plaint and the evidence of the plaintiff, was partnership property as defined in Section 253 of the Contract Act. The plaintiff stated that he was in possession of this property and asked for a partition. In his plaint and in his evidence, the plaintiff alleged that he was in possession of the property in suit. The defendant denied that plaintiff was in possession. The Deputy Commissioner found that plaintiff was not in possession, and this finding was not challenged by the plaintiff in his appeal to the Commissioner. The Courts below held that the suit was barred under the provisions of Section 43 of the Code of Civil Procedure and also by Article 106 of the Limitation Act.
The first question asked by the Government is--"whether, having regard to the statements in the plaints of the suits filed in Moradabad and Naini Tal, separate causes of action was disclosed, or whether the cause of action in both suits was one and the same? "We have carefully studied the plaints, and in our opinion the cause of action in both suits was in reality one and the same, viz., a claim to property arising out of the relation of the parties as partners in the firm at Naini Tal.
The second question is--"whether, if there was only a single cause of action in both suits, the plaintiff was bound to include the claim for the Naini Tal property in the suit filed in Moradabad, and whether his omission to do so precludes the institution of the present suit?" In our opinion, the plaintiff not only might but ought to have included his present claim in the first suit, and his omission to do so precludes the institution of the present suit.
The third question is: "did the reference to arbitration in the Moradabad suit bar the trial of that suit? If it did, is the present suit affected or not by the provisions of Section 43 of the Code of Civil Procedure?" This question appears to be based on some misconception. The parties are agreed that no reference to arbitration was made in the Moradabad suit.
The fourth question is --" does the withdrawal of the Moradabad suit without permission to bring a fresh suit, under Section 373, Civil Procedure Code, bar the present suit for the portion of the claim omitted in the previous suit?" Having regard to our answer to the second question, we answer this in the affirmative.
The fifth question is: "is the present suit barred under Article 106 of the second Schedule of the Limitation Act (XV of 1877)?" Although the suit is not in terms a suit for a share of profits of a dissolved partnership, it is found by the Courts. below that the partner-hip was dissolved upwards of three years before the suit was instituted in Naini Tal, and as the plaintiff would not have been entitled to the relief he asked for without an account and a finding as to his share of the profits of the partnership, we hold that his present suit is barred.
2. This is our reply to the reference. In our opinion the respondent is entitled to his costs in all courts.