BABU GUR DAYAL Vs. PANDIT SUKHNANDAN LAL

JUDGEMENT

(1.) The grounds of appeal may be taken up one by one. The suit was one for dissolution of partnership and rendition of accounts. A preliminary decree has been passed by the Court of the Munsif of Dehra Dun. An appeal to the District Judge of Saharanpur failed, and this is a second appeal by the defendant. In the first two grounds it was urged that the Munsif had no pecuniary jurisdiction to hear the suit. Those grounds, however, were not argued. What was argued before me was that the suit ought to have been filed in a Civil Court in Lucknow, and not at Dehra Dun. In the present case the partnership was entered into at Dehra Dun. S0 clearly the cause of action arose partly there. The business was to be carried on at Lucknow. So under the provisions of Section 20(c) of the Civil P. C. it was open to the plaintiff to choose the place of suit between Dehra Dun and Lucknow. Two rulings were cited by learned Counsel for the defendant-appellant Niranjan Singh V/s. Kundan Singh 52 Ind. Cas. 655 : 17 A.L.J. 1015 and Tika Ram v. Daulat Ram 80 Ind. Cas. 661 : 22 A.L.J. 591 : 46 A. 465 : A.I.R. 1924 All. 530 : L.R. 6 A. 9 Civ. In neither of them any question was raised as to the cause of action not arising partly at the place where the contract of partnership was entered into. The respondent's learned Counsel drew the Court's attention to the provisions of Section 21, Civil Procedure Code. The objection as to the place of suing cannot be allowed by an Appellate Court, unless there has been a consequent failure of justice. I have gone through the proceedings and read the judgments of both the Subordinate Courts. The learned District Judge has written a well considered judgment. The Munsif had made a note of the dilatory proceedings of both the parties. It is clear to me that full justice has been done to the parties, and to order a re-trial would be a waste of public time without rendering any greater justice to either party.

(2.) In the third ground of appeal it is urged that the suit should have been for the recovery of money due to the respondent, and not for dissolution of partnership. This ground is difficult to understand as it stands. When there has been a partnership there can be no suit for the recovery of the money due until it is known what amount is due. Possibly this ground is based on the fact that sometime in 1919 the defendant executed a pro-note in favour of the plaintiff for a sum of Rs. 20,000. The trial Court has stated that this was by way of security. Under the circumstances no suit could be filed on the basis of that pro-note until it is known what amount is due from the defendant to the plaintiff. The defendant never entered the witness-box. When I remarked on the shyness of the defendant to face the music it was pointed out that the plaintiff also did hot enter the witness-box. The default of the plaintiff cannot justify the conduct of the defendant who made various allegations which could only be substantiated by his own statement. In the fourth ground of appeal it is argued that the partnership was dissolved in 1919. Both the Subordinate Courts have held that there was no dissolution of partnership. In this Court my attention was drawn to an answer to a notice, Ex. 4, sent by the plaintiff Sukhnandan Lal to a person who desired to recover rent of a house in Lucknow from Gur Dayal defendant. As the habit of an Indian is it is long-winded and reiterates a point which could be put in a small compass that the business had failed and that since the failure of the business Gur Dayal was bo longer either the servant or the mukhtar-i-am of the Company and that, therefore, the plaintiff as a partner of the Company was not liable to pay the rent of a house occupied by Gur Dayal. There is no admission in this answer that the partnership had been dissolved. In fact the plaintiff bases his immunity, not on the ground of dissolution of partnership, but on the ground that the defendant was no longer the servant or mukhtar-i-am of the Company which had ceased to exist. The mere failure of a Company does not dissolve a partnership otherwise the most dishonest partner could misappropriate money and make the business of the partnership cease, and thereby automatically claim that he was no longer liable to render accounts as the business had failed. The next evidence of the dissolution of partnership quoted before me was the execution of the pro note already referred to. As I have stated above, the finding of the Munsif is that the pro-note was not executed in settlement of account, but by way of security, and there is nothing on the record to. controvert that finding. The fifth ground of appeal is based on the allegation that the partnership was dissolved in 1919. Only in that case would the suit be beyond time. The learned Judge of the lower Appellate Court has pointed out that the defendant himself is not sure whether the partnership was dissolved in July or November, 1919. Clearly, therefore, the defence is one put forth at a venture to escape rendition of accounts. As there has been no dissolution of partnership no question of limitation can arise.

(3.) Lastly, there is a ground that documentary evidence produced by the defendant-appellant was wrongly excluded by the trial Court. The trial Court has given very satisfactory reasons for excluding it. He wrote a long order on the 28th of October, 1925, pointing out the laches of the defendant as regards witnesses who had to be examined by commission in Lucknow. On 28 October, he again gave an opportunity for the cross-examination of these witnesses. The evidence of a witness cannot be admitted until the opposite party had an opportunity of cross- examining him. The commission was again returned to Lucknow with a distinct intimation to the defendant that the witnesses should be produced by him before the Commissioner. The defendant took no steps, was absent from the Commissioner's Office, and a notice issued to him could not be served. A defendant who takes such little interest in the prosecution of his defence deserves no indulgence.