DEEPAK MAHESHWARI,J. - (1.) This appeal has been preferred against the judgment and decree dated 29.01.1993 passed by learned District Judge, Balotra in Civil Original Case No. 15/1987 whereby, he dismissed the suit for recovery of Rs. 25,570/- filed by the plaintiff-appellant.
(2.) A suit was filed by plaintiff-appellant on 24.03.1987 stating therein that he and defendant-Devaram were partners in three firms which were carrying on business holding license for poppy husk and liquor. On 28.06.1983, defendant came to the house of plaintiff at Balotra and cleared the accounts of these firms upto the period 1983-84. Plaintiff had invested Rs.50,000/- in the business and a loss worth Rs.46,000/- came to his share. Defendant paid him Rs.4,000/- and a deed (Ex.1) was executed by him whereby, the plaintiff was ousted from the partnership business. It was also decided that the liability to pay any Government due, penalty, recovery, etc., would be of the defendant alone. Despite that, Excise Department issued notice to the plaintiff for realisation of the amount due. Plaintiff asked the defendant to deposit the said amount but he showed his inability then, the plaintiff deposited the amount of Rs. 21,990/- on four dates as mentioned in para-3 of the plaint. Defendant assured to pay the said amount back. He paid Rs.4,000/- on 10.11.1985 and Rs.1,000/- on 05.12.1985 but thereafter, no amount was paid back to the plaintiff. A registered notice was given by plaintiff to defendant on 23.02.1987 to pay him Rs.25,570/- including the interest and the expenses for notice etc. Since, the amount was not paid by the defendant, suit was filed for recovery of the said amount.
(3.) Defendant has denied the allegations made in the plaint by way of filing his written statement. It has been stated that no deed was executed between them to clear off the accounts of the firms and to undertake the liability by defendant alone. Any such deed, if any, might have been forged by the plaintiff. It has also been stated that besides plaintiff and defendant, Mohanlal Soni and Dharmaram Choudhary were also partners in the business. In absence of arraying them defendants in the suit, the same is not maintainable. It was also stated that the defendant never went to plaintiff's house at Balotra on 28.06.1983. No money was paid by him to the plaintiff on 10.11.1985 and 05.12.1985. It was also stated that the plaintiff was maintaining the accounts of the partnership business and he used to deposit the entire amount of dues in Excise Department after realising the share from all the partners. The amount stated in para-3 of the plaint has been deposited by plaintiff only after collecting the same from different partners. It was also stated that a sum of Rs.24,000/- was given by defendant in presence of Mohanlal to the plaintiff on 20.03.1984 which he has not paid back and to grab the money, this false suit has been filed.;