BANARSI DAS versus SETH KANSHI RAM & OTHERS

Citation: [1964] 1 S.C.R. 316 · Decided: 17-12-1962 · Supreme Court of India · Bench: SYED JAFFER IMAM · Disposal: Appeal(s) allowed

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Judgment (excerpt)

1962 
DtUm6,,, 17. 
316 SUPREME COURT REPORTS[l964JVOL. 
BANARSI DAS 
"· 
SETH KANSHI RAM &: OTHERS 
(and Connected Appeals) 
(S. J. lMAll, K. SUBBA RAo, N. R.&J.a.GOPALA 
AYYANGAR and J. R. MoDHOLKAR,jj.) 
Limitaaon-Dalt of diuol•A<n. of parllttt'.•liip-Jndian 
Limttatian Acl, 1908 (9 of 11108), Ari. 106-lndiOfl Parlnerallip 
Acl, 1932 (9 of 1932), a. 43-C* of Ci.;I Proudure, 1908 (Acl 
Ii o/ 1908), 0.211, r. 16. 
The plaintiff filed a 1uit again1t hil brothers who had for-
merly con•tituted a joint family for a declaration that the part· 
nership which had b«n Conned by them after they cea1ed to be 
joint in rc.opect of a •ugar mill 1tood diaolved on May 13, 194+, 
on which date one of the brothm had 61ed an earlier 1Uit for 
di,,olution of the partnership. The earlier 1Uit had been di•· 
mi5'ed for default. 
The plaintifl' in the present 1Uit allO prayed for a decree 
for accounto from defendanll I and 2 u well u for the appoint· 
ment of a Receiver. The trial court decreed the 1Uit, ordered 
winding up and appointed a Commi.,ioner. It allo directed 
the accounts prayed for. 
Before the High Court Kan1hi Ram 
who had not filed a wt itten statement and against whom 
the proceeding• in the trial court had been a·parte con· 
tended that the suit wa• barred by limitation and in any event 
he should not be called upon to account. The plaintiff contended 
that the •u it was one for distribution of the aaeh of a di•rolved 
firm 
and 
was not barred by limitation. The High Court 
while noticing that the plea of limitation taken by one of the 
parties was raised before it for the first time, held that by reason 
of s. 3 of the Limitation Act it was bound to talr.e notke of the 
bar of limitation and diommed the •uit. Having decided 
Kanshi Ram's plea the High Court paned conwquential orden 
with regard to the v.veral appeal• by the other defendants. On 
appeal it was contended in this Court that the question of limi· 
tation which was not raised even in the grounds of "ppcal 
before the High Court was a mixed question of Caci and law 
and it should not have been entertained by the High Court. 
/[,Id, that the suit for dissolution filed on May 13, 194+, 
had ended in a dismilsal for delault, and as IUch no date 
1 S.C.R. 
SUPREME COURT REPORTS 
317 
of dissolution of the partnership as contemplated by 0.20, r. 15, 
of the Code of Civil Procedure had been fixed by the Court; 
the plaint could not be construed as the notice contemplated by 
1. 43 of the Partnership Act, to terminate the partnership. 
Even on the assumption that the summons accompanied by the 
plaint could be said to be the service of notice !or dissolution 
of the partnership, the date of dis•olution could only be the 
date on which the last of the 
partners wa• served. 
With all these questions of fact to be investigated, the High 
Court had rommitted an error in treating the question of limita· 
tion as purely one of law and allowing it to be raised at the 
hearing for the first time before it, at the instance of a party 
who had not filed a written statement and rai!Cd an issue on the 
question before the trial court. 
CIVIL APPELLATE juBISDIOTION : Civil Appeals 
Nos. 94 to 97 of 1960. 
Appeals from the judgment and order dated 
March 15, 1956, of the Allahabad High Court in 
First Appeals Nos. 172, 364, and 379 of 1954. 
Veda Vyasa, R. K. Garg, D. P. Singh, Shiv 
Shastri and K. K. Jain, for the appellant (in C. As. 
Nos. 94-96/60) and respondent No. 2 (in C. A. No. 
97 of 1960). 
Rameshwar Nath, S. N. Andley and P. L. 
Vohra, for the appellant (in C. A. No. 97/60) respon-
dent No. 2 (in C. A. No. 94/60) arid respondent No. 
l (in C. As. Nos. 95 and 96/60). 
K. L. f!ossain and Bohan Lal Paridlii for respon-
dent No. l (m C. As. Nos. 94 and 97/60) respondent 
No. 2 (in C. A. No. 115 of 60) and respondent No. 4 
(in C. A. No. 96/60). 
Harbans Singh, for respondent No. 3 (in C. A. 
No. 94/60). 
. 
J. P. Agarwal, for respondent No. 4 (in C. A. 
No. 94/60) respondents Nos. 3 and 4 (in C. A. No. 
95/60) respondents Nos. l and 3 (in C. A. No. 96/60) 
and respondents NOi. 3 and 4 (in C. A. No. 97/60). 
81111/Jrsi Da.i 
•• 
Sith K anshi Ram 
-~\ 
1962. 
~.,.'\ 
Banarsi,Das 
Vot 
.\ 
,\1' 
.-
318 
SUPREME COURT REPORTS [1964) vor.. 
1902. December 17. 
The Judgment of tlie, 
Court was delivered by 
teth Kanshi Ram 
• 
Mumi:oLKAR, J.~These are appeals by certi· 
Mudholkar1 J. 
" ' 
ficates granted by the High Court of Allahabad under 
Art. 133 ( 1) (c) of tne. Const

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