HARI SINGH Vs. SHER SINGH

JUDGEMENT

(1.) This civil revision is directed against the order dated 19th April, 1985 passed by Smt Aruna Suresh, Commercial Sub Judge by which she dismissed an application moved by the petitioner under Section 151 of the Code of Civil Procedure praying that the court should amend the final decree and include the relief of possession in respect of the shop in question.

(2.) Facts in brief leading to the filing of the application before the Commercial Sub Judge are : that the petitioner had instituted a civil suit in the year 1970 seeking dissolution of partnership and rendition of accounts on the averments, that the petitioner and his two brothers are owners of 3098 in Hathi Khan a. Bahadurgarh Road, Delhi while petitioner alone was in exclusive possession of the same and he had obtained a licence from the Municipal Corporation of Delhi for carrying out business of wood work and had procured a licence of 5 H.P. Industrial Power load and he carried on business for some period but on 1st April, 1967 he took the respondent sher Singh as a partner and the partnership was reduced into Writing on 15th April, 1967. it was averred that the partnership was at will and the petitioner-plaintiff gave a notice dissolving the partnership and required the delendant-respondent to render the accounts.

(3.) The suit was contested by Slier Singh. on. the ground that in fact ther was no partnership entered into between him and the petitioner and as a matter of fact the petitioner had let. out the shop inclusive of industrial power connection at a rental of Rs. 50 p.m. and the petitioner had been paid huge premium for letting out the said premises and the power connection. He had pleaded that the partnership deed was got executed as a sham document as in law the petitioner was not entiled to let out the power connection and in fact no partnership business was ever carried on in the shop in question. After hot contest Shri K. S. Gupta, Commercial Sub Judge, vide his judgment dated 20th December, 1974 gave. findings that there was existing partnership business between the parties and the plea of the respondent that the tenancy was created in his favour in the cloak of partnership was negatived. An appeal was filed which was dismissed by Shri Jaspal Singh, Additional District Judge, vide his judgment dated 27th April, 1978. I am told that a second appeal filed by Sher Singh was dismissed in limine by this court. A local commissioner was duly appointed later on, on the application moved by the petitioner to go into the accounts and the local commissioner filed his report. It is significant to mention that in the claim petition filed before the local commissioner the petitioner had made reference to the terms of the partnership deed which clearly showed that the shop in question belonged to the petitioner and on dissolution of the partnership the possession of the shop was to revert back to the petitioner. The respondent had suffered ex parte proccedings before the local commissioner