BHAGCHAND Vs. KALURAM ALIAS MOOLCHAND

JUDGEMENT

(1.) THIS is a Civil Second Appeal against a final decree in a suit for rendition of accounts. The plaintiffs Jawanmal and Kaluram entered into a partnership with Bhagchand defendant on 31st October, 1951. The partners agreed to share the profits, as under: - (1) Jawanmal s/o Moolchand As. 0-6-6 in a rupee ; (2) Kaluram s/o Tarachand As. 0-6-6 in a rupee ; (3) Bhagchand s/o Bheraji As 0-5-6 in a rupee. It was agreed that the capital of the partnership shall be provided by the partners according to the needs of the Firm and that the capital of the Firm invested by each partner shall bear interest at 6% per annum. According to the partners, the partnership came to an end on 8th June, 1953. The plaintiffs prayed for a declaration that the partnership firm stood dissolved and also for rendition of accounts. The defendant contested the suit. A preliminary decree was passed on 8th August, 1957, in the following terms; - " (1) It is declared that the firm M/s Mool Chand Fatehchand shall stand dissolved from 11-6-1953; (2) It is further declared that the respective shares of the partners in the profits and losses of the said firm are as under: - (i) Jawanmal, plaintiff No. 1 Rs. 0/6/6 (ii) Kaluram, plaintiff No. 2 Rs. 0/6/6 (iii) Bhagchand, defendant Rs. 0/5/6" It was further directed that - ". . . . . . the account of the firm from 31-10-1951 to 11-6-1953 be taken by Commissioner Shri B. S. Singhi. In taking the accounts, the books of account of the firm shall be taken as prima facie evidence of the truth of the matter therein contained with liberty to the parties to take such objections thereto as may be advised. . . . . . . . . " The commissioner submitted his report and the parties took objections to the report. The learned trial judge decided the objections of the parties and decreed this suit for Rs. 4,511-1-6 pies providing further that the plaintiffs will be entitled to recover interest at the rate of 6% per annum on the decretal amount from the date of the suit till realization. The defendant preferred an appeal to the court of the District Judge, Pali, but the appeal failed. Hence this second appeal.

(2.) THE first contention urged by the learned counsel for the appellant is that he was not given any opportunity by the trial court to substantiate his objections filed before the commissioner. In my opinion, this point has got no force, as pointed out by the lower court. After the report of the commissioner had been received by the lower court, objections were invited. THE defendant filed objections on 20th February, 1958. THEreafter issues were framed on 12th March, 1958. THE case was posted for defendant's evidence on 9th April 1958 with the direction that if he wanted witnesses to be summoned through the court, he should deposit process fee within seven days, but this was not done. On the 9th of April, the defendant was examined and he requested for an adjournment to examine other witnesses which was allowed and 12th of April, 1958 was fixed. One witness - Juharmal on behalf of the defendant was examined on that day and thereafter the evidence of the defendant was closed. It cannot be said in the circumstances of the case that the trial court had not afforded full opportunity to the defendant to substantiate his objection before the commissioner. |