GOVARDHANBHAI SOMABHAI PATEL Vs. PARSHOTTAM URNEDBHAI

JUDGEMENT

(1.) THE plaintiff -appellant had entered into a partnership with the deceased Purshottam Umedbhai and respondent No. 2 Desat Govindbhai Chhotalal, for the purpose Of carrying out certain works in respect of which a contract was taken by the partnership. The partnership was to carry on its business in the name and style of Govindbhai Apabhai and company (contract). The firm came into existence on 6 -11 -1958. For sometime the plaintiff attended to the work of the partnership aid, thereafter, other two partners carried out the remaining work. As a dispute arose between the partners, the plaintiff filed a suit being civil suit No. 1138 of 1961 in the court of the Civil judge, Senior Division, Ahmedabad, for dissolution of partnership and accounts. On the establishment 4of the City Civil Court at Ahmedabad, the above suit was transferred to the file and it was renumbered as wait No. 2635 of 11961. As stated in par& 4 of the plaint, the firm had taken a contract of construction of three works. The defendants had an filed a. suit for dissolution of partnership and Accounts in the court of the Civil judge, junior Division at Anand. In view of the suit filed by the plaintiff, the aforesaid suit was withdrawn. In the suit which has given rise to this appeal, a preliminary decree was passed on 4 -3 -1966 with the consent of the parties. According to the consent terms the affairs of the firm were managed by the plaintiff up to 7 -7 -1960 whereas, the defendants were in charge of the management of the firm from 7 -7 -1960 onwards. According to the above decree, the firm was deemed to have been dissolved with effect from 1 -2 -9 -1961. Accounts wet e to be taken from the plaintiff for the period from 6 -11 -1958 to 7 -7 -1960; whereas, accounts for the period from 7 -7 -1960 to 12 -9 -1961 were to be taken from the defendants who were managing the affairs of the firm during the above period. The matter was referred to the Commissioner for taking Accounts, hereinafter referred to as the Commissioner. The parties filed their statements before the Commissioner, who, after framing certain issues, recorded evidence and submitted his report to the court. After the report was received, the parties were heard and the learned Principal judge, City Civil Court Passed a final decree on 17 -2 -1968. According to the above decree, the plaintiff had to pay Rs. 29,440 -12 with interest at the rate of 4% per annum from the date of the decree till payment and also the costs of the suit, to the defendants. Being aggrieved by the said judgment and decree of the learned Principal judge, City Civil Court, Ahmedabad, the plaintiff has come in appeal to this court. The defendants have also filed cross objections as they thought that the decree for a larger amount should have been passed in their favor.

(2.) IT appears that, after the parties had filed their statements before the Commissioner, the plaintiff did not remain present as a result of which, the proceedings were held ex parte against him. After the Commissioner filed his report, it was duly notified by the Registrar of the City Civil Court as contemplated by rule 343 of the Ahmedabad City Civil Court Rules, hereinafter referred to as the Rules. According to rule 344 of the rules -

(3.) IT is found from the record and proceedings of the case that, the plaintiff had appeared before the Commissioner and taken part in the proceedings up to 30 -4 -1967. On 1 -51 -1967, the proceedings were adjourned as the learned Advocate for the plaintiff had filed his sick note. The matter was adjourned to 4 -5 -1967 on which date, the plaintiff's advocate applied for time on the ground that, the plaintiff had to leave Ahmedabad all of a sudden. While granting time, the Commissioner made the following observations in his order : -