1. ABDUL KADIR SHAIKH, J.----These two Letters Patent Appeals were heard together as they are directed against a common order passed by a learned Single Judge of this Court dated the 31st of March 11970, disposing of two Miscellaneous Application No. 450 of 1970 and an unnumbered application. Through the first application, the appellant prayed that pending the disposal of the controversy he had brought in Suit M,). 445 of 1969 for the rendition of partnership accounts and for the appointment of Receiver, etc., he should be paid monthly allowance at the rate of Rs. 2,500 out of the earnings of the partnership business, or in the alternative the amount equal to what the defendants 1 and 2 are drawing for themselves.
2. The admitted facts of the case are that the appellant was a partner in Muhammad All Tramway Company with his deceased father, Mulla Muhammad A.I and respondents Nos. 1 and 3. This partnership came to an end on 2nd August 1963, when the father of the appellant died. A deed of dissolution in that behalf was reduced in wilting on the 5th of August 1953, and on the same day a fresh partnership came into existence through a partnership deed executed in writing. This partnership, according to the appellant, has continued until this day; It is, however, urged on behalf of the respondents 1 and 2 that by the deed executed on the 1st of June 1969, the appellant surrendered his share in the partnership business in their favour, and also in favour of certain persons who are not parties to the suit. The appellant before making the application No. 450 of 1970 had filed two applications earlier, one for appointment of a Receiver and the other for grant of a temporary injunction, restraining the defendants from disposing of the assets of the firm. These two applications were disposed of by the learned Single Judge by the order dated the 29th of January 1970, by which the appellant was only granted permission to inspect the books of the partnership firm. Later on, he made Miscellaneous Application No. 450 of 1970 requesting that he may be allowed to draw monthly allowance at Its. 2,500 out of the earnings of the partnership business during the pendency of the suit. The learned Single Judge was of the view that "much stronger case for a mandatory injunction is to be made out and unlike his previous application, the plaintiff now seeks mandatory order directing the first two defendants to pay him remuneration every month on the footing that he is a partner of the said firm. He can succeed only if he can make out a very strong case. I do not think that he made out such a case, therefore, his application is dismissed with costs."
3. As to the question whether the appellant made out a case for grant of the request prayed for, we may mention that it 9s an admitted position of the parties that the appellant was a partner in the firm to the extent of 20% share up to 1st June 1969. His interest in the firm is however resisted by the first two respondents inter alia on the ground that by the execution of the Deed dated the 1st of June 1969, he surrendered his share and ceased to have any Interest in the firm. It is noteworthy that this deed was to be executed by three sets of executants; first set constituting respondents Nos, 1 and 2; second A the appellant and respondent No. 3 and lastly, the six daughters of appellant's father and his mother. It is also admitted that the third set of the executants did not actually sign this deed, and it is the case of the appellant that under this deed he was to obtain certain properties belonging to his father which are rot the assets of the firm, but were to be given to him as the consideration for the surrender of his share in the partnership. It was made clear to us that it was not possible at the present stage to give the properties to the appellant which form the consideration for rte surrender of his share in the firm. These properties are jointly owned not only by the parties to the suit, but also several other persons, namely the ladies mentioned above. On these facts, the learned Single Judge was himself of the view in his earlier order dated the 29th of January 1970, that if the appellant could show that the transfer of the properties not constituting the assets of the firm which belonged to deceased Mulla Muhammad A.I is no longer possible in terms of Deed of 1st June 1969 he can be said to have undoubtedly established a strong prima facie case. There is, therefore, force in the argument that the appellant, who was admittedly a pay her in the firm up to 1st June 1969, would continue to enjoy the position until it is shown that the settlement of the property by deed dated 1st June 1969, is possible. The learned counsel for the appellant stated that his client has always been ready and willing to abide by the terms of this settlement if all the parties also abide by it.
4. We, therefore, feel that in the position that obtains today, namely that it being not possible for the appellant to obtain the consideration for the surrender of his share according to the deed dated the 1st of June 1969, it would be extremely unjust to deprive him of the benefits receivable by him under partnership deed dated the 5th of August 1963. Admittedly, he has no control over the assets of the firm and the business is being run by the first two respondents, who are exclusively B enjoying the profits of the firm. According to the affidavit filed by the appellant he has no means whatever of sustaining himself and his family during the pendency of the suit. Nothing to the contrary has even been suggested by the first two respondents: they have not even controverted this position by way of filing a counter-affidavit. Taking Into consideration all the attending circumstances of the case, we are of the opinion that the appellant is entitled to a monthly allowance, but we are not inclined to allow the amount as prayed by him, namely Rs. 2,500 per month. We feel that the ends of justice would be adequately served if use allow a monthly allowance of Rs. 1,500. This allowance will, however, be paid as from the 1st of November 1970, until the disposal of the suit. We wish to make it clear that the amount so received would be subject to the final adjustment of account, and in case it is found that the appellant had ceased to be partner as from 1st of June 1969 the amount received by him will be a charge on the properties which he may be entitled to receive under the deed dated the 1st of June 1969, or otherwise.
5. The second Letters Patent Appeal No. 83 of 1970 is directed against that part of the order of the learned Single Judge by which he allowed inspection to the appellant of the firm's books once every fortnight and rejected his prayer that the Inspection be permitted with the assistance of a Chartered Accountant. By the earlier order dated the 29th of January 1970, the learned Single Judge had directed the first two defendants to allow the plaintiff inspection of the firm's books of account within a week of the date of the order, and to continue to give the inspections thereafter, the matter thereof was, however, to be fixed later on. The appellant thereafter filed an application praying for the inspection of the books with the assistance of a Chartered Accountant which was, however, not permitted. Since the order passed by the learned Single Judge is in the exercise of discretionary jurisdiction, and we find no valid justification for interference with it, we are not inclined to accept this appeal. It is accordingly dismissed with no order as to costs.