Mixed question of law and facts.

Defendants 4 to 9 wore partners carrying on business as Messrs. ‘Ramakrishna Metal and Alloy Industries, the 2nd defendant. The fourth defendant was also the sole proprietor of the third defendant, namely, Messrs. General Pump Factory. It is the common case of both sides that subsequent to the events which have taken place constituting the cause of action of the plaintiff, the businesses of the second and third defendants were taken over by the first defendant.

Before dealing with the contentions raised in the present appeal, it is necessary to set out certain facts as providing the background for instituting the suit which gave rise to the second appeal. The managing director of the first defendant filed O.S. No. 1243 of 1959 for recovery of a sum of Rs. 2,302-99 from the plaintiff in the suit. The plaintiff also filed O.S. No. 1419 of 1959 against all the defendants in the present suit for production of their accounts of sale etc., for the period from 1st February, 1957, for appointment of a Commissioner to examine the accounts and for arriving at the amount due to the plaintiff, including damages and for ordering the defendants in that suit to pay the amounts so found due by the Commissioner. Since we are concerned only with the latter suit, namely, O.S. No. 1419 of 1959, a reference to the facts in that case is necessary and relevant. The case of the plaintiff in that suit was that he was the sole convassing agent of defendants 2 and 3 for the sale of pumps manufactured by them and he was so appointed by a letter dated 1st February, 1957, under which he was entitled to a commission of 5 per cent. in respect of the sales effected by or through him and an overriding commission of 2½ per cent. on all the sales effected by defendants 2 and 3 over certain areas specified in that letter. The defendants resisting the claim inter alia contended that the letter dated 1st February, 1957 was a forgery. In that suit, the. trial Court framed several issues and three of them are necessary they being Issues 3, 4 and 5 and they are as follows:

Issue 3: Whether the letter dated 1st February, 1957 is a forgery?

Issue 4: Whether the plaintiffs are entitled to any commission; and

Issue 5: Whether the plaintiffs are entitled to demand accounting?.

The trial Court on Issues 3 and 4 found in favour of the plaintiff. It came to the conclusion that the plaintiff was acting as a commission agent of the two defendants upto the end of 1958 and was entitled to a commission of 5 per cent. on the sales and an annual overriding commission of 2½ per cent. However, with regard to Issue No. 5 referred to above, the trial Court was of the opinion that the plaintiff, even according to his own case being only an agent of the defendants, had no right to demand an accounting from the defendants. Consequently, Issue No. 5 mentioned above, was decided against the plaintiff. In view of this finding the trial Court observed that the plaintiff was not entitled to maintain the suit for accounts. With this observation,‘the trial Court dismissed the, suit, but pointed out that the plaintiff was at liberty to file a fresh suit claiming the commission due to him on the same cause of action. It is this judgment which becomes final has given rise to the present suit. I must point out that the common case of both the parties is that the dispute involved in the suit relates to only the overriding commission of 2½ per cent. and not to the 5 per cent. on the sales effected by or through the plaintiff. Since the defendants concede that the plaintiff was their salesman and was entitled to the commission of 5 per cent., the present suit, namely, O. S. No. 1301 of 1960 was filed by the plaintiff for recovery of a sum of Rs 3,650-17 representing the 2½ per cent. overriding commission in respect of certain sales effected in the area covered by Exhibit A-1. The case of the plaintiff in his plaint was that he. was the sole canvassing agent to the products of defendants 2 and 3