JUDGMENT : A.K. SINHA, J. 1. This appeal is by the plaintiff against the ORDER :of remand dated 13.3.1985 by the court of appeal below. It would be pertinent to quote the operative part of the ORDER ::– "In the ends of justice the case is remanded for retrial in respect of matters other than the consent referred to above for a fresh decision according to law in accordance with the observation made above. The learned court below is directed to readmit the suit in its original number in the register of civil suits and proceed to determine the remaining subject matter of the suit in accordance with the observations made above according to law. A fresh decree will be prepared by the court below after giving a fresh decision according to law in the light of the observation made above." 2. Learned Counsel for the appellant has; firstly, submitted that, in the circumstances of the case the remand was not necessary as the relief ORDER :ed (by the court of appeal below) to be adjudicated upon afresh being ancillary relief, separate consideration was not necessary; secondly, that the court of appeal below committed a serious error in law by making the whole remand. 3. In ORDER :to appreciate the aforesaid submissions advanced by the learned Counsel for the appellant, it is necessary to state a few facts. The plaintiff/appellant filed the suit (T.S. No. 2/82) for dissolution of partnership and also for a declaration that the defendant was a mere working partner and as such was not entitled to anything in the assets of the Firm solely contributed by the plaintiff. The plaintiff also prayed for restraining the defendant by a permanent injunction from interfering with the business of the plaintiff (business named as ANAND MISTHAN BHANDAR). According to the plaintiff the business (ANAND MISTHAN BHANDAR) existed from long time started by his father. According to the plaintiff, when his father grew old and was incapable to carry on the business by himself alone he took the plaintiff as a partner on 1.4.1963 by a regular Deed of Partnership dated 2.4.1963, as the plaintiff had separated from his father much earlier. According to the plaintiff his father retired from partnership from 31.3.1967, i.e., the partnership business remained from 1.4.1963 to. According to the plaintiff his father retired from partnership from 31.3.1967, i.e., the partnership business remained from 1.4.1963 to. 31.3.1967 only and thereafter the plaintiff became the sole proprietor of the aforesaid business with assets and capital invested by him. However, according to the plaintiff, he started experiencing difficulties in carry on the business by himself and hence he (plaintiff) took the defendant (plaintiff's uncle) as a mere working partner with effect from 1.4.1967 by a regular Partnership Deed dated 15.4.1967. 4. It would be pertinent to mention a few important terms of the Partnership Deed dated 15.4.1967 between the plaintiff and the defendant and the same were as fallows:– (a) The plaintiff would invest all the capital and assets to carry an the aforesaid business and the defendant would be a mere working partner without investment of any capital and asset. (b) The partnership was Partnership at will. (c) The plaintiff was at liberty to exclude the defendant from the partnership if the defendant was guilty of misconduct. 5. In ORDER :to appreciate the submissions advanced by the learned Counsel for the appellant a few more facts have to be stated. After the plaint was admitted the court, by ORDER :dated 6.1.1982, issued Summons to defendant fixing 12.1.1982 for settlement of issues and also for hearing on the injunction matter. On the date fixed, i.e. 12.1.1982, the defendant appeared and prayed for time and the matter was adjourned to 23.1.1982. On 23.1.1982, the defendant filed show cause and prayed for time to file the written statement. Thereafter the case was adjourned to 27.1.1982 and on this date the parties were heard on the injunction matter. It would be very pertinent for the purpose of appreciating the submission advanced on behalf of the appellant, to mention one more very important fact, i.e., before the ORDER :on the injunction matter was passed on 28.1.1982 (when the hearing on injunction matter was resumed) an oral offer was made by the defendant that the partnership be dissolved and that a consent decree to that effect be passed and that a Receiver, too, be appointed pending preparation of a final decree. 6. 6. As the offer on behalf of the defendant was oral, on 10.2.1982 the plaintiff filed an application in the light of the aforesaid offer given by the defendant (on 28.1.1982) and a prayer was made to the effect that as the defendant also wanted dissolution of partnership, a consent decree under ORDER :XX, Rule 15 of the Code of Civil Procedure be passed and a preliminary decree be prepared and pending the preparation of final decree a Receiver be appointed. The plaintiff in his application dated 10.2.1982, just referred to above, also prayed that he (plaintiff) be appointed as Receiver. 7. Thus, what has to be seen is as to what prayer was made by the application dated 10.2.1982 filed by the plaintiff? I nave already indicated in the early part of the JUDGMENT : the three reliefs sought for by the plaintiff in the suit and out of the three reliefs, by the petition dated 10.2.1982, the plaintiff had prayed only for the dissolution of partnership in the light of the oral offer already made by the defendant on 28.1.1982. Thus, the two other reliefs still remained to be adjudicated in the suit. By the petition dated 10.2.1982 the plaintiff never prayed for the disposal of the suit rather the prayer was for necessary ORDER :s to be passed, in the ends of justice, for the dissolution of partnership alone. Thought it will bear repetition it is relevant to mention that dissolution of partnership was not the only subject matter of the suit. 8. The trial court, by its ORDER :dated 19.5.1982 disposed of the plaintiff's application dated 10.2.1982. 9. From the facts stated above, it is obvious that the matters for ORDER :s by the trial court were only with regard to the appointment of Receiver along with the injunction matter and an ORDER :on the application dated 10.2.1982 (for dissolution of partnership) filed by the plaintiff/appellant. 10. On 19.5.1982, the trial court decreed the suit. It would be pertinent to quote the relevant portion of the trial court's ORDER :dated 19.5.1982 "(1) This hearing was made on the matter of appointment of receiver since the learned Advocates of parties agreed that consent decree for dissolution of partnership from 12.1.1982 may be passed. 10. On 19.5.1982, the trial court decreed the suit. It would be pertinent to quote the relevant portion of the trial court's ORDER :dated 19.5.1982 "(1) This hearing was made on the matter of appointment of receiver since the learned Advocates of parties agreed that consent decree for dissolution of partnership from 12.1.1982 may be passed. ** ** ** ** ** (5) Under such circumstance, I think it just and proper that the plaintiff should be appointed as receiver to submit profit and loss account of the firm till the date of dissolution of partnership i.e. 12.1.1982. It is also to be noted that there is no allegation of any misconduct against the plaintiff. (6) In the result, it is, therefore. ORDER :ED That the suit is decreed on consent without cost. The partnership is hereby dissolved from 12.1.1982 and the plaintiff is appointed receiver to submit the account of profit and loss upto 12.1.1982 by 1.8.1982 and is allowed to run the ancestral business. Let a preliminary decree be drawn up accordingly." 11. On a perusal of the very first paragraph of the trial court ORDER :, just quoted above, it is obvious that the ORDER :related only on the matter of appointment of Receiver as the parties had agreed for a consent decree for dissolution of partnership from 12.1.1982. Nonetheless, as it would appear from the ORDER :portion, the entire suit was decreed. 12. Aggrieved by the trial court ORDER :dated 19.5.1982 the defendant preferred two separate appeals a Miscellaneous Appeal against the preliminary decree. The Miscellaneous Appeal was numbered as Misc. Appeal no. 13/82 and a Title Appeal which was numbered as T.A. No. 58/82. The aforesaid Miscellaneous Appeal was dismissed on 29.5.1982, as not maintainable. Against that ORDER :dismissing the Misc. Appeal the defendant preferred a Civil Revision in this Court, which was numbered as Civil Revision No. 791/82. On 23.12.1982 the Civil Revision was allowed with a direction that the Title Appeal and Miscellaneous Appeal be heard together and disposed of together. 13. In pursuance of this Court's ORDER :in the aforesaid Civil Revisional Application No. 791/82, the Title Appeal and the Miscellaneous Appeal (both filed by the defendant) were heard together and disposed of by the court of appeal below by ORDER :dated 13.3.1985. The Miscellaneous Appeal was dismissed and the Title Appeal was allowed. 13. In pursuance of this Court's ORDER :in the aforesaid Civil Revisional Application No. 791/82, the Title Appeal and the Miscellaneous Appeal (both filed by the defendant) were heard together and disposed of by the court of appeal below by ORDER :dated 13.3.1985. The Miscellaneous Appeal was dismissed and the Title Appeal was allowed. The ORDER :dated 19.5.1982 was directed to be treated only as an ORDER :recording consent of the parties regarding dissolution of the Firm with effect from 12.1.1982 and a suit was remanded for retrial in respect of matters other than the consent of the parties regarding dissolution of the Firm. 14. Aggrieved by this ORDER :, remanding the suit for retrial in respect of matters other than the consent of the parties regarding dissolution of the Firm, the plaintiff has preferred the present appeal. I have already indicated the nature of the impugned ORDER :dated 13.3.1985 in the very first paragraph of this JUDGMENT :. 15. In the Title Appeal No. 58/82 filed by the defendant, the defendant had not appealed against the decree so far as it related to dissolution of partnership with effect from 12.1.1982. The Title Appeal was against the appointment of plaintiff as Receiver to submit accounts and against the ORDER :directing the plaintiff to run the ancestral business. The learned Counsel for the parties had agreed before the trial court for a consent decree being passed for dissolution of partnership with effect from 12.1.1982. In the Title Suit No. 2/82 the plaintiff had not only prayed for dissolution of partnership but had also prayed for a declare that the defendant was a mere working partner and also for a declaration that the defendant being a working partner was not entitled to anything in the assets of the Firm solely contributed by the plaintiff and had also prayed for permanent injunction restraining the defendant from interfering with the business. Out of these reliefs the parties had given consent only with regard to passing of a decree for dissolution of partnership. No consent was given by the defendant to pass a decree to the effect that he (defendant) was a mere working partner. Out of these reliefs the parties had given consent only with regard to passing of a decree for dissolution of partnership. No consent was given by the defendant to pass a decree to the effect that he (defendant) was a mere working partner. There was no consent by the defendant debarring himself from any assets of the Firm rather in the show cause against the issue of temporary injunction the defendant had categorically denied the plaintiff's allegation that the defendant was merely a working partner. The defendant, in his show cause (in injunction matter), rather has stated that he had invested 50 (fifty) per cent of the capital to the business and that the business was never the exclusive business of the plaintiff. 16. As would appear from various dates (mentioned in the earlier paragraphs) no date was ever fixed for the settlement of issues or for final hearing of the suit itself. The suit was adjourned, on one date or the other either for hearing the injunction matter or for hearing the receivership matter. The main rule in the suit was whether the defendant was a mere working partner or a full-fledged partner and on this point there was no agreement between the parties. Still the trial court, by its ORDER :dated 19.5.1982 without adjudicating on the main and important aspect of the case on merit disposed of the suit in a summary manner. The parties never any petition for compromise. The defendant's offer was oral and it was the plaintiff's application, on oral offer made by the defendant, by which the plaintiff had prayed for dissolution of partnership from 12.1.1982. Admittedly, the defendant did not prefer any appeal against that portion of the JUDGMENT : dissolving the partnership with effect from 12.1.1982 on consent. This consent or a consent decree with regard to dissolution of partnership was only a part the subject matters of the suit and, as would appear from the facts stated above, the parties had never consented regarding the remaining part of the relief claimed by the plaintiff. A suit can be disposed of either on compromise or on evidence after the settlement of issues or in any other manner prescribed by the court. A suit can be disposed of either on compromise or on evidence after the settlement of issues or in any other manner prescribed by the court. As, admittedly, no compromise petition filed and as, admittedly, no issues were settled much-less the evidence gone into, the trial court could have decided the remaining part of the reliefs claimed by the plaintiff either on evidence after settlement of issues or in any other manner prescribed by the court and not otherwise. 17. It is true that under ORDER :VIII Rule 5 (2) of the Code of Civil Procedure if the defendant failed to file the written statement the Court could pronounce the JUDGMENT : on the basis of facts contained in the plaint. But in the present case, the suit was never adjourned for settlement of issues or for final hearing. The court should have given opportunity to the defendant to file written statement by allowing him time for the purpose by fixing a date for settlement of issues or final hearing. This having not been done, I hold that it caused prejudice to the defendant. 18. Learned counsel for the plaintiff-appellant has not drawn my attention to any ORDER :which would show that despite the opportunity given to the defendant, the defendant failed to file written statement. I hold, in the circumstances of the present case, that the right of the defendant for filing his written statement was not extinguished. The first date of hearing within the meaning of ORDER :VIII Rule 1 (as amended) read with the ORDER :XIV Rule 1 of the Code of Civil Procedure had not commenced by 19.5.1982 when the trial court disposed of the entire suit. Even though on that date the court was hearing only interlocutory matters, i.e. the injunction and the receivership matters, on no date the suit was adjourned for settlement of issues. The court was bound to fix a date for settlement of issues or for final hearing of the suit thereby giving time to the defendant for filing his written statement and if after such time the defendant had not filed the written statement, the trial court could proceed to dispose of the suit in the manner as provided in the Code taking that the defendant had no defence to make. There was no legal evidence before the trial court for recording a finding that the defendant was a mere working partner and had no concern with the assets of the Firm which, according to the plaintiff, was the ancestral business of the plaintiff. 19. It is well settled that if the trial court decides the suit on merit then the whole remand by the court of appeal below for retrial is illegal and erroneous in law. 20. From the facts stated above, it is clear that no date for settlement of issues in the suit was fixed muchless any evidence was gone into. There was no legal evidence on the record for adjudicating the reliefs sought for by the plaintiff. The parties had consented only with regard to a part of the relief, i.e., with regard to the dissolution of the partnership of the Firm and nothing else. The defendant had not filed the written statement even nor has it been shown to me that despite opportunities having been given to the defendant the defendant failed to file the written statement. In the circumstances I hold that in decreeing the suit, in the circumstances of the present case, the defect in the trial was so radical as to be incurable otherwise than by a whole remand. I further hold that in the facts and circumstances of the present case, there was not a proper trial before the trial court and hence, I hold that there is no merit in the submissions advanced by the learned Counsel for the plaintiff-appellant and I further hold that the impugned ORDER :of the court of appeal below dated 13.3.1985 does not suffer of any illegality. 21. In the result, this appeal is dismissed. However, there will be no ORDER :as to costs.