# HULAS RAI BAIJ NATH v. FIRM K. B. BASS & CO

- **Citation:** [1967] 3 S.C.R. 886
- **Court:** Supreme Court of India
- **Decided:** 1967-05-03
- **Case number:** Civil Revi· sion No. 686 of 1953
- **Bench:** R. S. Bachawat, J. M. Shelat, V. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hulas-rai-baij-nath-v-firm-k-b-bass-co-4035
- **Pages:** 5

## Headnote

Code cf Ciril Procedure, 1908 (Act 5 of 1908). 0.23 r. 1-"·1'! '''
rendition of accozmt,~Defendant pleads accounts settled, money due
10 him, and prays for decree of amount due-Preliminary decree
nat
passed-Whether plaintiff can withdraw suit.
In a suit for rendition of accounts, the
defendant pleaded
that
accounts, had been settled and he was to get certain money from the
plaintiff; that there could be no rendition of accounts; and that if the
court concluded that rendition of account was necessary, a decree for
the amount which may be found due to the defendant with costs end
interest may be passed in favour of the defendant after necessary court•
fee was realised from the defendant. While no preliminary decree for
rendition of accounts had been passed, and, in fact, the defendant was
still contending that there .could be no rendition of accounts in the suit,
the plaintiff alplied far withdrawal of the suit. The defendant opposed
the withdrawa , claiming that in a suit of this nature, his position became
that of a plaintiff and he became entitled to have the accounting done
and to obtain a decree, and the withdrawal after protracted duration was
to defeat this right of the defendant.
The trial Court
allowed
the
withdrawal, which was upheld by the High Court. In appeal by the
defendant, this Court
HELD : At the stage of withdrawal of the suit, no vested right in
favour of the defendant had come into existence and there was no ground
on which the Court could refuse to allow withdrawal of the suit.
There is no provision in the Code of Civil Procedure which requires
the Court to refuse permission to \Vithdra\V the suit in such circumstances
and to compel the plaintiff to proceed with it. It is, of course, possible
that different considerations may arise where a set-off may have been
claimed under 0.8, C.P.C., or a counter-claim may have been filed, if
permissible by the procedural law applicable t<> proceedings governing
the suit. In the present case, the pleadings did not amount to a claim for
set-off.
Even if it be assumed that the> defendant could have claimed
a decree for the amount found due to him after rendition of accounts,
no such right can possibly be held to ei<ist before the Court passed a preliminary decree for ·rendition of accounts. In the case of a suit between
princiJ?al and agent, it is the principal alone who bas normally the right
to claun rendition of accounts from the ageot. The agent canne>t ordi·
nadly claim a decree for rendition of accounts from the principal and,
in fact, in the suit, the defendant, who was the agent of the respondent,
did not claim any reJ1dition of accounts from the plaintiff.
[888F-H;
889B-D]
Seet!tc.i Ac/ii v. Meyappa C!tettiar a11<l Others, A.I.R. 1934 Mad. 337.
refered to

## Text

HULAS RAI BAIJ NATH
v.
FIRM K. B. BASS & CO ..
May 3, 1967
[R. S. BACHAWAT, J. M. SHELAT AND V. BHARGAVA, JJ.J
Code cf Ciril Procedure, 1908 (Act 5 of 1908). 0.23 r. 1-"·1'! '''
rendition of accozmt,~Defendant pleads accounts settled, money due
10 him, and prays for decree of amount due-Preliminary decree
nat
passed-Whether plaintiff can withdraw suit.
In a suit for rendition of accounts, the
defendant pleaded
that
accounts, had been settled and he was to get certain money from the
plaintiff; that there could be no rendition of accounts; and that if the
court concluded that rendition of account was necessary, a decree for
the amount which may be found due to the defendant with costs end
interest may be passed in favour of the defendant after necessary court•
fee was realised from the defendant. While no preliminary decree for
rendition of accounts had been passed, and, in fact, the defendant was
still contending that there .could be no rendition of accounts in the suit,
the plaintiff alplied far withdrawal of the suit. The defendant opposed
the withdrawa , claiming that in a suit of this nature, his position became
that of a plaintiff and he became entitled to have the accounting done
and to obtain a decree, and the withdrawal after protracted duration was
to defeat this right of the defendant.
The trial Court
allowed
the
withdrawal, which was upheld by the High Court. In appeal by the
defendant, this Court
HELD : At the stage of withdrawal of the suit, no vested right in
favour of the defendant had come into existence and there was no ground
on which the Court could refuse to allow withdrawal of the suit.
There is no provision in the Code of Civil Procedure which requires
the Court to refuse permission to \Vithdra\V the suit in such circumstances
and to compel the plaintiff to proceed with it. It is, of course, possible
that different considerations may arise where a set-off may have been
claimed under 0.8, C.P.C., or a counter-claim may have been filed, if
permissible by the procedural law applicable t<> proceedings governing
the suit. In the present case, the pleadings did not amount to a claim for
set-off.
Even if it be assumed that the> defendant could have claimed
a decree for the amount found due to him after rendition of accounts,
no such right can possibly be held to ei<ist before the Court passed a preliminary decree for ·rendition of accounts. In the case of a suit between
princiJ?al and agent, it is the principal alone who bas normally the right
to claun rendition of accounts from the ageot. The agent canne>t ordi·
nadly claim a decree for rendition of accounts from the principal and,
in fact, in the suit, the defendant, who was the agent of the respondent,
did not claim any reJ1dition of accounts from the plaintiff.
[888F-H;
889B-D]
Seet!tc.i Ac/ii v. Meyappa C!tettiar a11<l Others, A.I.R. 1934 Mad. 337.
refered to
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 897 ()f
1964.
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HULAS RAJ BAIJ NATH v. K. B. BASS (Bhargava, J.)
887
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Appeal by special leave from the judgment and order dated
November 14, 1961 of the Allahabad High Court in Civil Revi·
sion No. 686 of 1953.
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TJishan Narain and M. I. Khowa;a, for the appellant.
Niren De.
Addi. Solicitor-General, M. V.
Goswami and
Y ogeshwar Parshad, for the respondent.
The Judgment of the Court was delivered by
Bhargava, J.
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
th<l
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 11. 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 accouilt5
were fully explained to him as worked out up to Kartik Sudi 15.
Sambat 2007. In that statement of account, a sum of
Rs. 10,677-14-3 wa5 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 fo11nd due.
It was thus urged that there was no occasion for rendition of
accounts and the plaintiff's suit was not fit to proceed according
to law.
In paragraph 11, the appellant pleaded that "if, in the
opinion of the court, the court has jurisdiction to try the suit and
it is necessary to render the accounts, it is equitable that a decree
for the amount whlch 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 jssues
were framed and the case was taken up for recording of evidence
on sev~ral dales. of heari~g. Some of the issues were even given
up durmg the tnal.
Ultimately, on 5th May, 1953, after a considerable amount of evidence had been recorded, an application
was presented on behalf of the plaintjf-respondent for withdrawal
of the suit.
The ground given for withdrawal was that the respondent firm was in the charge of one Bhagwat Charan who had
colluded with the appellant and litigation ·was going on between
H
the. respondent and Bha~at Char~n for effecting partition of the
.bus1l\ess.
Consequently, 1t was d1tlicult 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 ·with·
L9Sup. Cl/67-13
888
SUPREME COURT REPORn
[1967] 3 S.C.R.
drawal.
The nrnin 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,
"omething 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 the plaintiff, his position became that of a
plaintiff himself and he became entitled to have the accounting
done and to obtain a decree.
It was urged that the plaintiff's
game in withdrawing the suit after pro'tracted duration and considerable expenditure on the part of the defendant was to defeat
this right of the defendant.
The trial Court held that the right of
the plaintiff in this suit to withdraw under 0. 2J, r. 1 of the Code
of Civil Procedure wns inherent and such a right could be exer·
cised at any time before judgment. All that the defendant could
claim was an order for costs in his favour. The Court, therefore,
dismissed the suit, awarding costs of the suit to the appellant.
The appellant filed a revision in the High Court of Allahabad
~gainst this order, with a prayer that the High Court may set aside
the order of the trial Court and remand the suit for trial according
to law.
The High Court dismissed the application for revision;
and the appellant has now come up to this Court in this appeal
by special leave.
The short question that, in these circumstances,
falls
for
·decision is whether the respondent was entitled to withdraw from
the suit and have it dismissed by the application dated 5th May,
1953 at the stage when issues had been framed and some evidence
had been recorded, but no preliminary decree for rendition of
accounts had yet been passed.
The language of 0.23, r. l,
sub-r. (1 ), C.P.C., gives an nnqualified right t9 a plaintiff to
withdraw from a suit and, if no permission to file a fresh suit is
sought under sub-r. (2) of that Rule, the plaintiff becomes liable
for such costs as the Court. may award and becomes precluded
from instituting any fresh suit in respect of that subject-matter
under sub-r. ( 3) of that Rule.
There is no provision in the Code
of Civil Procedure which requires the Court to refuse permission
to withdraw the suit in such circumstances and to compel the
plaintiff to proceed with it. It is, of course, possible that different
<'.Onsiderations may arise where a set-off may have been claimed
under 0. 8 C.P.C., or a counter-claim may have been filed, if
pennissible by the procedural law applicable to the proceedings
governin11; the suit. In the present case, the pleadings in paraμraphs 8 and 1 l of the written statement.
mentioned
above ..
dearly did not amount to a claim for set-off.
Further, there
could be no counter-claim, because no provision is shown under
which a counter-claim could have been filed in the trial Court in
such a suit.
There is also the circumstance that the application
for withdrawal was moved at a stage when no preliminary decree
had been passed for renditiOn of account and. in fact, the appellant
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HULAS .RA! BAIJ N~TH ~. K. B. BASS (B/zargava, J.)
889
was still contending that there could be no rendition of accounts
in the suit, because accounts had already been settled. Even in
para "11, the only claim put forward was that, in case the Court
found it necessary to direct rendition of accounts and any amount
is found due to the appellant, a decree may be passed in favour
of the appellant for that amount.
In this paragraph also, the
right claimed by the appellant was a contingent right which did
not exist at the time when the written statement was filed.
Even
if it be assumed that the appellant could have claimed a decree
for the amount found due to him after rendition of accounts, no
such right can possibly be held to exist before the Court passed
a preliminary decree for rendition of accounts. .It is to be noted
that in the case of. a suit between principal and agent, it is the
principal al0ne who has normally the right to claim rendition of
accounts from the agent.
The agent cannot ordinarily claim
a decree. for rendition of accounts from the principal and, in fact,
in the suit, the appellant, who was the agent of the resJi<>ndenl,
did not claim any rendition of accounis from the respondent. In
these circumstances, at the stage of withdrawal of t11e suit, no
vested right in favour of the appellant had come into existence
and · there was no ground on which the Court could refuse to
allow withdrawal of the suit. It is unnecessary for us to express
any opinion as to. whether a Court is bounil to .allow withdrawal
of a suit to a plaintiff after some vested right may have accrued
in the suit in 'favour•of.the defendant. On the facts of this case.
it is 'Clear that the right 0f the plaintiff •to withdraw the sllit was
not at all affected by any vested right existing in favour of the
appellant and, consequently, the order passed by the trial Court
was perfectly justified.
·
On behalf of the appellant, reliance Was placed on the views
expressed by a Division Bench of the Madras High Court in
Seethai A~hi v. Meyappa Chettiar and Others ('), where the Co1111
held :
"<?rd!narily, when. the Court finds no impediment to
the d1snussal of a smt after the announcement of tile
withdrawal of ~he. cla.im .. by the plaintiff,. it will simply
say that the su.tt 1s d1sm1ssed as the plaintiff has-withdrawn
from 1t.
An order as to costs will also be
passe.d.
But several exceptions have been recognised
to this gener~l rule. In suit~ for partition, if a preliminary decree 1s passed declaring and defining the shares
of the several parties, the suit will not be dismissed by
reason of ~ny subsequent ·withdrawal by the plaintiff,
for the obvious reason that the rights declared in favour
of tile defendants under the preliminary decree would
Ix; rendered nug~tory if the ~uit s~ould simply be dis·
missed. So also m partnership smts
and
suits
for
(I) A. I. R. 1934 Mad. 337.
890
SUPREME COURT REPORTS
{1967] 3 S.C.R.
accounts, where the defendants too may be entitled to
some reliefs in their favour as a result of the settlement
of accounts, the withdrawal of the sult by the plaintiff
cannot end in the mere dismissal of the suit."
·
We do not think, as urged by learned counsel, that the learned
Judges of the Madras High Court were laying down the principle
that, in a suit for accounts, a defendant is always entitled to relief
in his favour and that the withdrawal of such a suit by the plaintiff
cannot be permitted to terminate the suit.
Jn the context in
which that Court expressed its opinion about sults for accounts,
it clearly intended to lay down that the dismissal of the suit on
plaintiff's withdrawal is not to be necessarily permitted, if the
defendant has become entitled to a relief in his favour. But such
a right, if at all, can in no circumstances be held to accrue before
a preliminary decree for rendition of accounts is passed.
In fact.
in mentioning suits for partition and suits for accounts, the Court
was keeping in view the circumstance mentioned in the earlier
sentence which envisaged that a preliminary decree had already
been passed defining rights of parties.
In any case, we do not
think that any defendant in a suit for rendition of accounts can
insist that the plaintiff must be compelled to proceed with thesuit at such a s'tage as the one at which the respolldent in the
present case applied for withdrawal of the suit.
The appeal, therefore, fails and is dismissed with costs.
Y.P.
Appeal dismissed.
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