- (1.) THIS first appeal under Sec. 96, C. P. C. has been preferred against the judgment and decree dated 16. 8. 1978 passed by th learned Additional District Judge, Sri Ganganagar in Civil Suit No. 11 of 1974.
(2.) THE aforesaid Civil Suit was filed on 1. 5. 1973 by respondent-firm against the defendant-appellants for recovery of Rs. 11,926/- on the ground inter-alia that, a Partnership firm came into existence in the year 1958 having its three partners viz. Bheru Dan, Sohanlal and Shiv Narain. Out of three partners, Bherudan was acting partner whereas Sohanlal and Shiv Narain were sleeping partners. It was decided between them that Bherudan will have half share and Sohanlal and Shiv Narain will have 1/4 share each in the partnership firm. It is further alleged that Bherudan admitted to pay Rs. 10. 106. 54 on 4. 5. 70 but he failed to repay the said amount, which necessitated to file the Civil Suit on the basis of entry made by Bherudan in the ledgers of the firm. THE suit was also filed against appellants No. 2,3 and 4 treating them as members of Hindu Joint Family of Bherudan. ' The suit was contested by the appellants on the ground, inter alia, that the firm was not dissolved on 4. 5. 70 therefore the suit for accounting without dissolution of firm is not maintainable. It is further pleaded that one partner cannot be said to have any cause of action against another partner for balance of amount till final account is settled between them. It is also pleaded that Bherudan is the partner in his personal capacity and not as Karta of Joint Hindu Family, hence the appellants No 2,3 and 4 are not liable to pay any amount even if it is proved that Bherudan is liable to pay any amount to the firm. On the aforesaid pleadings of the parties, necessary issues were framed and after framing the necessary issues attention of the parties was focussed to establish these issues. In support of his plaint, the plaintiff respondent examined as PW 1 Ramchandra, PW 2 Sohanlal, PW 3 Ram Pratap and PW 4 Prithvi Raj, and on behalf of defendant-appellants, Bherudan was examined as DW1, Rameshwarlal as DW 2 and Ishwar Prasad as DW 3. After discussing the oral and documentary evidence on record, the learned trial court decreed the suit of the plaintiff- respondent on 16. 8. 78. Feeling aggrieved, the appellants have preferred this appeal before this Court.
(3.) THE instant first appeal was admitted on 13. 02. 1979 while record was requisitioned from the trial court by the office of this Court on 8. 6. 88 after expiry of about 9 years which was received by the learned Additional District Judge, Sri Ganganagar on 13. 6. 88. By that time, all oral and documentary evidence adduced by the parties were weeded out. The first appeal was taken up by this Court on 6. 2. 92 and it was found by the court that the record received from Addl. District Judge, Sri Ganganagar did not contain the oral and documentary evidence of the parties. An explanation was called from Addl. District Judge as to why incomplete record was sent to this Court. The then Additional District Judge, Sri Ganganagar submitted his explanation, which is on record and informed this Court that remaining record containing Parts B,c and D had already been weeded out in absence of any information about filing of the first appeal before this Court against the judgment and decree dated 16. 8. 78 passed by him in Civil Suit No. 11/74. I have heard Mr. J. L. Purohit, learned counsel for the appellants and Mr. R. R. Nagori, learned counsel for the respondent at length. From the grounds of appeal and points urged before me it is necessary to consider oral and documentary evidence adduced by both the parties before the trial court. ;