KRISHAN DAYAL Vs. AMAR NATH
LAWS(HPH)-1979-12-6
HIGH COURT OF HIMACHAL PRADESH
Decided on December 31,1979

KRISHAN DAYAL Appellant
VERSUS
AMAR NATH Respondents

JUDGEMENT

H.S.THAKUR,J. - - (1.) The appellant has filed this Letters Patent Appeal against the judgment and decree dated 8th July, 1969 passed by a learned single Judge of Delhi High Court (Himachal Bench),
(2.) The brief facts of the case are that during 1999 Bikrami, Krishan Dayal appellant -plaintiff, Chandu Ram defendant No. 1 and Munshi Ram defendant No. 2, entered into a partnership for extraction and sale of resin in the then Princely Mandi State. A deed of partnership was executed in that connection which is marked as Ex. PA. According to the terms of the partnership deed, the plaintiff was to invest the entire amount for the business of the partnership and was entitled to receive interest at the rate of Rs. 1/ -per cent per annum on the amount invested. The assets of the partnership were first to be applied towards payment of the amount invested by the plaintiff and the interest thereon. Out of the balance, the profits were to be distributed amongst the partners. The share of the plaintiff was fixed at 6 annas in a rupee, while the shares of Chandu Ram and Munshi Ram defendants were 8 annas and 2 annas in a rupee, respectively. The partnership firm, thereafter, carried on the business for some years. During the year 2004 Bikrami the plaintiff filed a suit for dissolution of partnership and rendition of accounts against Chandu Ram and Munshi Ram defendants. A preliminary decree for dissolution of partnership and rendition of accounts was passed in that suit on March 28, 1 51. The preliminary decree was affirmed on appeal by the District Judge and the learned Judicial Commissioner, Himachal Pradesh. Shri R. C. Sawhney, Advocate, was appointed Local Commissioner to go into accounts in pursuance of the preliminary decree. The Local Commissioner submitted a report dated April 6, 1958 to the effect that the plaintiff was entitled to recover Rs. 24,374/1/3 from defendant No. 1 and Rs. 3,115/15/6 from defendant No. 2. A total sum of Rs 27,526/ - was thus found to be due from the two defendants to the plaintiff. Objections were preferred by the plaintiff as well as by the defendants to the report of the Local Commissioner. The trial court after considering the evidence and the report of the Local Commissioner, set aside the same. Instead of appointing another commissioner for going into the accounts, the learned trial court made an attempt to go into the accounts. The conclusion, however, arrived at by the trial court was that it was not possible to go into the accounts of partnership as both the parties were withholding important and material account books. Consequently the trial court raising a presumption against the plaintiff under clause (g) of section 114 of the Evidence Act, on account of the non -production of account books which were in his possession, dismissed the suit. The plaintiff thereafter went up in appeal to the Court of the District Judge, and the learned District Judge found that the Local Commissioner who had gone into the accounts had committed serious errors. The learned District Judge agreed with the trial Court that there were sufficient grounds for setting aside the report of the Local Commissioner. The learned District Judge also agreed with the trial court that the plaintiff had failed to produce material account books which were in his possession. As such, the plaintiff was held not entitled to claim rendition of accounts. It was brought to the notice of the learned District Judge that Rs, 16,0C0/ - had been deposited by Munshi Ram defendant in that court when resin belonging to the partnership was released in his favour. The said resin was thereafter sold by Munshi Ram defendant. In the view of the learned District Judge, the parties were held entitled to the amount of Rs. 16,000/ - in accordance with their shares in the partnership. The plaintiff was, accordingly, held entitled to get Rs 6,000/ - out of Rs. 16,000/ -, while the legal representatives of Chandu Ram defendant were held entitled to receive Rs. 8,000/ -, and Munshi Ram defendant No. 2 was held entitled to receive the balance amount of Rs. 2,000/ -. The plaintiff preferred a second appeal in the High Court of Delhi (Himachal Bench) and challenged the findings of the courts below. The learned single Judge of the Delhi High Court (Himachal Bench), after considering the contentions raised on behalf of the plaintiff and after examining the legal position, dismissed the appeal but left the parties to bear their own costs.
(3.) The learned counsel for the appellant -plaintiff has challenged the judgment and decree parsed by the learned single Judge mainly on three grounds. The first contention raised by the learned counsel for the appellant is that the suit could not be dismissed when a preliminary decree had been passed by the trial court. Secondly, it is contended by the learned counsel that the statement of Baj Ram (DW. 2) recorded by the Commissioner was not at all admissible in evidence as he could not be cross -examined by the appellant -plaintiff due to the death of this witness The third contention raised by the learned counsel for the appellant is that no adverse inference could be drawn against the appellant for non -production of documents as the same were not in his possession.;


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