LAWS(GJH)-1995-1-46

NANDLAL HIRANAND Vs. KANAIYALAL HIRANAND

Decided On January 20, 1995
NANDLAL HIRANAND Appellant
V/S
KANAIYALAL HIRANAND Respondents

JUDGEMENT

(1.) The petitioner in the present revision is the original defendant no. 1, whereas the first respondent is the original plaintiff and the second respondent is the original defendant no. 2. The first respondent-plaintiff had filed the suit for accounts and dissolution of the partnership firm on the basis that he was a partner thereof. The defence of the defendants or at least that of the first defendant was that the plaintiff had settled the accounts in respect of his share in the partnership firm with the father and on being paid Rs. 15,000/- had ceased to have any share in the partnership (both the plaintiff as well as the defendants are sons of the same father) and that therefore the plaintiff has no right to sue for dissolution and accounts.

(2.) . It appears that during the pendency of the suit, while the evidence of the plaintiff was being recorded, the present petitioner i.e. first defendant, gave an application for issuing a witness summons to the aforesaid father for the purpose of producing the books of accounts of the relevant time. The trial court by its order below this application rejected the same with the observation that the plaintiffs deposition is not yet over and that therefore this application at that stage of die matter is premature.

(3.) . It is the rejection of this application by the aforesaid order dated 30th June, 1992 which is the subject matter of the present revision. On a plain reading of the order it becomes apparent that the trial court has not refused to issue witness summons on the ground that the examination of the specified witness is unnecessary or irrelevant or on any other ground In other words, the first defendant has not been prevented permanently from examining the said witness. The only reason given by the trial court and in my opinion justifiably so, is that the plaintiffs deposition is not yet over. The necessary implication of this observation is that the stage has not yet come where the defendant is required to open his side of the evidence. Thus, at that stage of the matter, when the defendant has not yet opened his evidence, there is no question of issuing any witness summons for examining any witness, as a witness of the first defendant.