Hon'ble Judges/Coram:
J.M. Shelat, R.S. Bachawat and Vashishtha Bhargava

JUDGMENT

Vashishtha Bhargava, J.

1. The respondent firm, K. B. Bass & Co., instituted a suit on 13th April, 1951, for rendition of accounts against the appellant firm, Messrs. Hulas Rai Baij Nath, alleging that the appellant was, the commission agent of the respondent and that the accounts between respondent as the principal and appellant as the agent had not been settled since the dealings began in the year 1941 onwards. Tentatively, a sum of Rs. 2,100/- was claimed in the plaint. In the written statement filed on behalf of the appellant, the suit was contested on various grounds; but for the purposes of this appeal, we need mention the pleas taken in only two paragraphs 8 and 112. In paragraph 8, it was pleaded that one Lala Shiva Charan, a partner of the respondent firm, had come with a Munim in the month of Agahan last and accounts were fully explained to him as worked out up to Kartik Sudi 15, Sambat 2007. In that statement of account, a sum of Rs. 120,677-124-3 was found due to the appellant from the respondent and the representatives of the respondent asked for two months' time for making the payment of the amount found due. It was thus urged that there was no occasion for rendition of accounts and the plaintiff's suit was not fir to proceed according to law. In paragraph 11, the appellant pleaded that "if, in the opinion of the court, the court had jurisdiction to try the suit and it is necessary to render the accounts, it is equitable that a decree for the amount which may be found due to the contesting defendant, after rendition of accounts, together with costs and interest be passed in favour of the contesting defendant after necessary court-fee being realized from the defendant. " A number of issues were framed and the case was taken up for recording of evidence on several dates of hearing. Some of the issues were even given up during the trial. Ultimately on 5th May 1953, after a considerable amount of evidence had been recorded, an application was presented on behalf of the plaintiff-respondent for withdrawal of the suit. The ground given for withdrawal was that the respondent firm was in the charges of one Bhagwat Charan who had colluded with the appellant and litigation was going on between the respondent and Bhagwat Charan for effecting partition of the business. Consequently, it was difficult to prosecute the suit. No prayer was made for permission to file a fresh suit. The appellant filed an application objecting to this application for withdrawal. The main ground taken for contesting this application for withdrawal was that, in a suit of this nature, it is permissible to pass a decree in favour of the defendant if, on accounting something is found due to him against the plaintiff, and it followed that, if the defendant paid court-fee on the amount which was found due to him from plaintiff, his position became th........