SAMUEL AARON Vs. DAMODARAN

JUDGEMENT

(1.) THIS revision is by the plaintiff and is directed against an order of the court below refusing to most extent his petition under 0. 11, R. 14 ,1 5 and 18.

(2.) THE plaintiff and the defendant were equal partners in the Timber Supply Co. and Baliapatam Saw Mills, Pappinisseri which they had started in November 1941. Under the agreement of partnership the management was to be carried on jointly but by mutual consent the defendant was the active partner. Subsequently under dissolution deed dated 11-11-1953 executed between them, they dissolved the Firm as and from 5-10-1953. THE dissolution was on the basis that the net assets and liabilities of the firm balanced each other and the defendant took it over as a going concern on payment of a sum of Rs. 22, 500/- to the plaintiff, as the estimated value of the good will. THE assessment of the firm for the four years preceding the dissolution and commencing 1950-51 was finalised by the Incometax Inspector on 5-12-1954 with the result that the company stood surcharged to the extent of Rs. 72,593-8-0, because the Company's accounts "did not reveal the full profits and also suffered from various defects". On receipt of this order of the Income Tax Officer on 8-12-1954 the plaintiff suspected foul play by the defendant in connection with the settlement of accounts at time of the dissolution and issued notice accordingly to the defendant calling for fresh settlement. This suit was filed thereafter on 18-11-1955 for re-opening the accounts on ground of fraud depending mainly on the findings entered by the Income tax Officer in his order of assessment and for decree for accounts through court. THE defendant resisted the suit on the basis that the plaintiff's complaints were vague and general and did not disclose any cause of action and the findings of the Income-tax Officer on which the plaintiff relied, had themselves lost all force by virtue of the relevant appellate orders in the matter.

(3.) ON the question of production and inspection of documents there is some controversy as to whether an order for production under 0. 11, R. 14 C. P. C. can only follow an order as to affidavit of documents under o. 11, R. 12 C. P. C. In Baidvanath v. Bholanath Roy, A I. R. 1923 Patna 337, it was held that there should first be an order for discovery made under R. 12 before an order for production can be made. The contrary view is taken in Sri Niwas v. Election Tribunal, Lucknow , A. I. R. 1955 All. 251. The question is not of much importance in this case because no objection was raised by the defendant on this score. There can however be no doubt that a party is entitled to say that no order for production should be passed so long as the opposite party has not established his cause of action. It was held accordingly in A. I. R. 1923 Patna 337 just cited that where a plaintiff in order to succeed in his claim to certain property had to get rid of a compromise decree to which he was a party, it is not open to him to compel the defendant to disclose the accounts relating to the properties involved. And similarly in K. V. Ramachari v. K. V. Krishnamachari , A. I. R. 1924 Mad. 846, the defendant was held entitled to object to the inspection of his accounts referred to in his pleadings and also produced by him in a court, by the plaintiff claiming to be a partner so long as he had not established that he was a partner. That is to say the mere production by one party does not give an indefeasible right of inspection to the other.