Permissibility for raising plea of maintainability of the suit for the first time in second appeal.

Defendants are the appellants. The suit out of which the second appeal arose, was filed by the plaintiff-respondent for rendition of accounts or in the alternative for dissolution of partnership. Defendants 2 to 4 and the plaintiff entered into a partnership agreement on 9-7-1970 for carrying on 'commission business' in chillies, groundnuts and onion. The plaintiff contributed Rs. 19,500. Defendants 2 and 3 contributed Rs. 16,250 each. 4th defendant contributed Rs. 13,000. The second defendant was managing the affairs of the partnership. Defendants 3 and 4 joined the first defendant firm on 1-4-1970. The partnership was to continue for three years from 1-4-1970. During the year 1970-71, a net profit of Rs. 50,258 was earned. It was shared in accordance with the terms of the partnership deed and the plaintiff was paid a sum of Rs. 15,077 towards his share. But for the years 1971-72, the plaintiff was paid a sum of Rs. 4,302-30. The case of the plaintiff is that the other partners namely defendants 2 to 4 conspired to remove the plaintiff from the partnership business and had manipulated the accounts. The plaintiff's request to provide a true copy of the account fell on deaf ears of the other partners and the plaintiff was forced to give a notice through his advocate on 22-1-1973, demanding rendition of accounts for the year 1971-72, for which a reply was sent, which is to the effect that the plaintiff and third defendant had agreed to withdraw from the partnership and that the plaintiff had to pay Rs. 6735-11 to the firm and that the plaintiff has agreed to pay the amount within three months. Plaintiff denied these allegations and has filed the suit for reliefs stated.

2. The suit was resisted by the defendants, who in their answer contended that the plaintiff and third defendant had retired from the partnership voluntarily since the plaintiff was disappointed at the low profit made during the year 1971-72 and that the plaintiff has settled his accounts and retired on 31st Mar. 1972, and that it is only thereafter the fifth and the sixth defendants were taken in as partners, and that, therefore, the plaintiff is not entitled to the reliefs prayed for.

3. The learned trial Judge found that the plaintiff has not settled his account with the first defendant firm and has not retired from the partnership with effect from 31-3-1972, and that the plaintiff has not been furnished with the copies of the accounts and granted preliminary decree in favour of the plaintiff for dissolution of partnership and accounting.

4. In appeal the learned Appellate Judge, concurred with the findings of the trial court that the plaintiff has not retired from the partnership and also held that want of notice under S.43 of the Indian Partnership Act will not be a bar for maintainability of a suit for dissolution of partnership and in the end dismissed the appeal.

5. The defendants have filed the second appeal and a learned Judge of this court has formulated the following substantial question of law, at the time of admission of the second appeal-

"Whether the suit for dissolution of partnership at will and rendition of accounts, in the absence of a notice of dissolution, is maintainable in law." *

The admitted facts are that the plaintiff was one of the partners along with defendants 2 to 4 and defendants 3 and 4 joined the first defendant firm on 1-4-1970. Ex. A 6 is the copy of the agreement dt. 9-7-1970. The terms of the partnership deed are not disputed and the defendants claim was that plaintiff voluntarily retired from the partnership on 31-3-1972, and that the accounts were looked into and a document has also been written under Ex B 17, which was signed by the other retiring partner, who is the third defendant.

6. A perusal of Ex B-17 shows that the plaintiff has not signed on it. Both the courts did not believe that there was panchayat, that the accounts were looked into and that the plaintiff retired from the partnership. Both the Courts con