KRISHAN DAYAL Vs. CHANDU RAM

JUDGEMENT

(1.) This regular second appeal filed by Krishan Dayal plaintiff is directed against the judgement and decree of learned District Judge, Mandi and Chamba, modifying on appeal the decision of the trial Court whereby the suit of the plaintiff against Chandu Ram defendant No. 1 (who died during the pendency of the proceedings and is now represented by his leagal representatives and Munshi Ram defendant No. 2 had been dismissed. As a result of the appeal, the plaintiff has been held entitled to receive Rs. 6,000 out of Rs. 16,000.00 deposited in Court.

(2.) The brief facts of the case are that on Phalgun 25, 1999 Bikrami Krishan Dayal Plaintiff, Chandu Ram defendant No. 1 and Munshi Ram defendant No. 2 entered into a partnership for extraction and sale of resin in Mandi State. A deed of partnership Exhibit PA was executed in that connection. According to the terms of the partnership deed the plaintiff was to invest the entire amount for the business of the partnership and was to get interest at the rate of Re. l 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. On Magh 4, 2004 Bikrami, Krishan Dayal plaintiff filed suit for dissolution of partnership and rendition of accounts against Chandu Ram and Munshi Ram. A preliminary decree for dissolution of partnership and rendition of accounts was awarded in that suit on March 28, 1951. The decree was affirmed on appeal by the District Judge and the Judicial Commissioner. Shri R. C. Sawhaney Advocate was appointed Local Commissioner in pursuance of the preliminary decree to go into accounts. The Local Commissioner submitted a report dated April 6, 1958 to the effect that the plaintiff was entitled to recover Rs. 374/1/3 from defendant No. 1 and Rs. 3115/15/6 from defendant No. 2. Rs. 27,526/0 were thus found to be due from the two defendants to the plaintiff. Objections were filed by the plaintiff as well as by the defendants to the report of the Local Commissioner. The trial Court set aside the said report.

(3.) Instead of appointing another Commissioner for going into the accounts, the learned trial Judge made an attempt to go into the accounts. The conclusion reached by him was that it was not possible to go into the accounts of partnership as both the parties were withholding important and material account books. The trial Judge thereupon raised a presumption against the plaintiff under clause (g) of Section 114 of the Evidence Act on account of non-production of the account books which were in his possession, and dismissed the suit.