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Shiv Singh Vs. Ramji Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 6 of 1953
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10; ;Partnership Act, 1932 - Sections 4 and 32; ;Evidence Act, 1872 - Section 91
AppellantShiv Singh
RespondentRamji Das and ors.
Appellant Advocate Dina ??, Adv.
Respondent Advocate H.C. Anand, Adv.
DispositionAppeal allowed
Cases ReferredFaqira v. Hardewa
Excerpt:
.....partnership it was certainly not necessary to implead them as defendants - suit was not bad for non-joinder of these two persons - fact of existence of partnership may be proved by parole evidence of acts of parties without production of deed - district judge erred in his decision - trial court was well within its rights in granting decree for dissolution of partnership and for taking accounts under order 20 rule 15 - appeal allowed. - .....a preliminary decree under order 20, rule 15. the defendants preferred an appeal to the learned district judge, who set aside the decision of the sub-judge and dismissed the suit on the ground that it was bad for non-joinder of necessary parties and for misjoinder. thereupon, the plaintiff came up in second appeal to this court. my learned predecessor allowed that appeal and remanded the case to the lower appellate court for redecision with certain directions. the district judge has re-heard the matter and once again non-suited the plaintiff. hence the present second appeal. 2.learned counsel for the appellant argued that the issues framed by the district judge, after remand, were incomplete and in the case of issues 5 to 7, the onus has been wrongly placed on the plaintiff. the.....
Judgment:

Ramabhadran, J.C.

1. This is a second appeal by a plaintiff, which arises out of a suit for rendition of accounts. The Senior Sub-Judge, Bilaspur, granted the plaintiff a preliminary decree under Order 20, Rule 15. The defendants preferred an appeal to the learned District Judge, who set aside the decision of the Sub-Judge and dismissed the suit on the ground that it was bad for non-joinder of necessary parties and for misjoinder. Thereupon, the plaintiff came up in second appeal to this Court.

My learned predecessor allowed that appeal and remanded the case to the lower appellate Court for redecision with certain directions. The District Judge has re-heard the matter and once again non-suited the plaintiff. Hence the present second appeal.

2.Learned Counsel for the appellant argued that the issues framed by the District Judge, after remand, were incomplete and in the case of issues 5 to 7, the onus has been wrongly placed on the plaintiff. The findings arrived at by the District Judge have also been strenuously assailed. I was, therefore, requested to reverse the decision of the District Judge and decree the suit.

3. The plaintiff's case, in brief, was that on 22 Har, 2002 B., a partnership was created between Shiv Singh, plaintiff, Ramji Dass, Sada Ram, Bhagat Ram, Gopalu Ram and Bal Mukand. Bal Mukand and Gopalu Ram retired from the partnership after 15 or 20 days with the consent of the remaining partners. The remaining partners agreed that they would share the gains as well as the losses accruing from the partnership. On the 11th of Bhadun, 2002, a supplementary partnership deed was executed between the remaining partners.

The business of the partnership consisted in the manufacture and sale of Katha, which work was completed by Jeth, 2003. The plaintiff alleged that the defendants have not paid him his share of the profits. Since, according to him, the account books were in the custody of the defendants, he sought a decree for rendition of accounts.

4. The defendants' case was that the agreement of 22-4-2002 was superseded by another agreement dated llth Bhadun 2002 and therefore, no suit lay on the basis of the original agreement.

5. The trial Court found that on 22 Har, 2002, a partnership was created, consisting of the plaintiff, Shiv Singh, Ramji Dass, Sada Ram, Bhagat Ram, Bal Mukand and Gopalu Ram. The last mentioned two partners retired from the partnership after a few days and the business was carried on by the remaining partners. The learned Sub-Judge, further found that the agreement of 22 Har 2002 was not superseded by any subsequent agreement. In the result, the Sub-Judge granted a preliminary decree under Order 20, Rule 15, dissolving the partnership from the date of suit and directing that accounts be taken.

6. In appeal, the learned District Judge held that Bhagat Ram and Sada Ram were not partners and, therefore, the suit was bad for misjoinder. He also held that Bal Mukand and Gopalu were necessary parties to the suit as, in his opinion, they did not retire from the partnership. He, therefore, came to the conclusion that the suit was bad also for non-joinder of necessary parties.

The District Judge, while agreeing with the Sub-Judge that the agreement of 11 Bhadun 2003 had not been proved in accordance with law, thought that no relief could be granted to the plaintiff because he had not sought the dissolution of the partnership created on 22-4-2002. In view of these findings, the District Judge set aside the decision of the Sub-Judge and dismissed the suit.

I shall take up these points one by one.

7. Whether Bal Mukand and Gopalu Ram were necessary parties to the suit: The District Judge did not rely on the statement of Bal Mukand to the effect that he and Gopalu Ram had retired from the partnership. The ground given is that Bal Mukand was an interested witness and his statement was not corroborated. The District Judge was not impressed by the statement of the plaintiff in this regard. He further held that Bal Mukand and Gopalu could not have retired without giving written notice to the remaining partners.

8. I am unable, however, to agree with the view of the District Judge. The plaintiff's statement was that Bal Mukand and Gopalu' Ram did not contribute their share of the capital and, therefore, retired from the partnership. A similar statement was made by Ball Mukand, who appeared as a witness for the plaintiff. I fail to see why Bal Mukand should make a statement against his own interest. The fact that he made such a statement corroborates the plaintiff's case considerably.

It is also significant that the defendants nowhere alleged that Bal Mukand and Gopalu Ram continued as partners for any length of time. It is also noteworthy that Bai Mukand and Gopalu were not parties to the subsequent agreement of 11th Bhadun 2002. Under these circumstances, it could be legitimately inferred that Bal Mukand arid Gopalu retired from the partnership soon after it was formed and this position was accepted by the remaining partners. No written notice by these retiring partners to the remaining partners was necessary as the learned District Judge seems to think.

Such a notice was necessary only in case of partnership at will. The present partnership was created for the particular purpose of manufacture and sale of Katha. The partnership was to come to an end once the adventure was over. Therefore, no written notice was necessary and it was certainly open to Bal Mukand and Gopalu to retire with the consent of the remainingpartners, as appears to be the case here. Since Gopalu and Bal Mukand had retired from the partnership, it was certainly not necessary to implead them as defendants. In my opinion, therefore, the suit was not bad for non-joinder of these two persons.

9. Whether Bhagat Ram and Sada Ram were parties to the Agreement dated 22-4-2002 B.

The learned District Judge attached great importance to the circumstance that the plaintiff had not proved affirmatively that Bhagat Ram had signed the partnership deed Ex. D. X. It is true that Bhagat Ram denied having signed Ex. D. X. or having entered into the partnership.

10. As was pointed out in firm Mirzamal Bhagwan Das v. Rameshwar AIR 1929 All 536, (A) a partnership can be created by an agreement expressed or implied. In Jakiuddin v. Vithoba AIR 1939 Nag. 301, (B) it was held that the contract of partnership may be implied and need not be expressed. Therefore, if the evidence on the record can warrant the inference that Bhagat Ram did act as a partner, then the mere fact that his signature does not appear on the document Ex. D. X. would not make any material difference. Section 91, Evidence Act, will not exclude oral evidence on this point, because the existence of the fact of a contract, etc., is quite distinct from the proof of the terms of the contract. Thus, the fact of existence of a partnership may be proved by parole evidence of the acts of parties without production of the deed.

A perusal of Ex. D. X. shows that his (i.e. Bhagat Ram's) name is mentioned therein as one of the partners. The names of the various partners have been written at the foot of the document. .1 find that the name of Bhagat Ram was inserted between the names of Ramji Dass and Anant Ram. It would appear that Ramji Dass and Anant Ram signed the document first and in such a way, that there was no room left for Bhagat Ram to sign beneath his name. Therefore, it seems to me pure accident that the person who signed as 'Bhagat Ram, School, Berthin', signed below the words 'Gawah Shud'.

I do not think that this person--whoever it was--was meant to be an attesting witness. This 'attesting' witness was not produced in Court and we do not know whether, it was a pure coincidence that the so-called attesting witness had the same name as Bhagat Ram, partner. The learned Sub-Judge has rightly pointed out that Bhagat Ram, admittedly, was a partner from llth phadun onwards.

It, therefore, does not stand to reason that Bhagat Ram's name would be mentioned in the partnership deed of 22 Har, if, in point of fact, he had no intention of joining the partnership then. Under these circumstances, and also bearing in mind that the plaintiff stated on oath that Bhagat Ram contributed his share of capital from 22 Har onwards, the conclusion seems to be well-nigh irresistible that Bhagat Ram was a partner from 22 Har onwards.

11. Coming to Sada Ram, it is true that he denied having joined the partnership of 22 Har 2002, but he admitted having joined the partnership in Bhadun, i.e., some two months later, along with Shiv Ram Ramji Dass and Bhagat Ram. He further admitted that he and his brother, Anant Ram were joint. I find great force in the argument of the learned Sub-Judge that it was hardly likely that Anant Ram should be a partner from 22 Har to 11 Bhadua and his brother, Sada Ram, should be a partner from 11 Bhadun onwards.

Bhagat Ram as D. W. 2 blurted out that Sada Ram had purchased trees even before 11th Bhadun along with Ramji Dass and Shiv Singh. Therefore, from the conduct of Sada Ram, it does appear that he was a partner from 22 Har, although the partnership deed Ex. D. X. wassigned, not by him, but by his brother, Anant Ram. It is highly significant that Anant Ram did not have the courage to enter the witness-box. From the sworn testimony of the plaintiff, it appears that Sada Ram paid his share of the capital.

Under these circumstances, I would hold that Sada Ram was a partner from 22nd Har onwards. Consequently, Bhagat Ram and Sada Ram were rightly impleaded in the suit. The finding of the District Judge to the effect that the suit was bad for mis-joinder is, in my opinion, erroneous.

12. There remains the question as to what relief can be granted to the plaintiff. The Dis-trict Judge felt that since the agreement of llth Bhadun had not been proved in accordance with law and the plaintiff had not sought dissolution of the partnership of 22nd Har, no relief could be granted to him. As was held in 'Akhtar Abbaa v. Nazar Abbas,' AIR 1946 Lah 10 (C):

'It is not the duty of a party to plead law in the pleadings. All that is required of him is to state all the material facts, which constitute his cause of action. When the materialfacts have been stated, the duty of giving appropriate relief, according to the facts establish-ed on the record, devolves on the Court, which has to apply the correct rule of law to such facts.'

A similar view was taken by a full bench of theAllahabad High Court in 'Faqira v. Hardewa,' AIR 1928 All 172. (FB) (D), where Sulaiman, J. pointed out that:

'A. Court is not bound to confine its attention strictly to the language of the relief actually claimed in the plaint, if the allegations do entitle the plaintiffs to a wide relief'.

13. Under these circumstances, the trialCourt was well within its rights in granting adecree for dissolution of partnership and for taking accounts under the provision's of Order 20, Rule 15.

14. In the result, I allow this appeal, setaside the decision of the District Judge, Bilaspur,dated 26-3-53 and restore that of the SeniorSub-Judge, Bilaspur, dated 31-3-50. The appellant will get his costs throughout from the respondents.


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