The admissibility of evidence from a previous suit for the purpose of adjudicating a subsequent suit, and the fulfillment of legal requirements for dissolution of a partnership firm.

R.B. Misra, J.

1. Heard Mr. D. Majumdar and Mr. B. Habung, learned Counsel for the Appellant-Defendant and also heard Mr. T. Pertin, learned Counsel for the Respondent-Plaintiff.

The present appeal has been preferred under Section 48 of the Assam Frontier (Administration of Justice) Regulation, 1945 (in short, called the 'Regulation, 1945') read with Section 96 of the Code of Civil Procedure against the judgment and order dated 18.5.2006 passed in Title Suit No. 01/1995 by the Deputy Commissioner, Lower Subansiri District, Ziro, whereby the Respondent 's/Plaintiff's suit for dissolution of the partnership firm under the name of M/s. Laali Gyochi Gas Service, was decreed and Deputy Registrar of the Cooperative Societies, Ziro was appointed as a Commissioner to take accounts of the Firm.

2. The questions for consideration in the present appeal are:

(i) Whether the deposition/evidence of Plaintiff in earlier case/Money suit for recovery of Rent could be allowed to be accepted or treated to the deposition/evidence of same Plaintiff (in reference to Section 33 of Evidence Act) in an Anr. Case/Title Suit, between the same parties, without fulfilling the preconditions and requirements of Section 33, more so, without rendering and bringing on record for consideration in evidence for proving the same consistent to the procedural law governing the trial of civil cases/suits, for the purpose of dissolution of firm by Court under Section 44 of The (Indian) Partnership Act?

(ii) Whether irrelevant, inadequate and in-admissible evidences/depositions of Plaintiff in earlier case/Money Suit, could be made relevant, adequate and admissible for the same Plaintiff with the consent of the parties (i.e. with the consent of Plaintiff and Defendant) in Anr. case/Title Suit?

3. The necessary facts for adjudication of the present appeal are that an agreement dated 20.03.1090 between Shri Hage Tara, Appellant-Defendant and Shri Hage Appo, Respondent-Plaintiff in connection with the management of M/s. Laali Gyochi Gas Service, Ziro, was entered into and the text of such agreement is extracted as below:

Agreement

Licence No. OC (LPG) S-56/MTAN

Dated 20.03.90

1. Shri Hage Tara

(First Party

Between

2. Shri Hage Appo

(Second Party)

In connection with management of Laali Gyochi Gas Service.

We the first party and the second party have agreed for joint management of the above Gas Service in following terms and conditions:

1. Whereas the first party got a licence of LPG distributorship from the IOC authorities for opening a outlet for public sale at Hapoli (Ziro). The second party has invested the initial expenditure at the tune which may be worked out later.

2. The expenditure might have incurred by both partes till the date of commission (10th April 1990) will be shared in the ratio of 50:50,

3. Since the godown has been constructed in the plot at Laru owned by the second party, rents will be charged at the rate which might be prevailing in that locality after five years. The land where the godown is constructed will never be claimed by the first party whatsoever.

4. The first party will act as the manager and will be sole responsible for smooth management of the gas service for the next five years to start with. He will be paid total emoluments of Rs. 1600/- per month. He will not engage himself in any other personal business during the above period.

5. The first party and the second party will share the net profit at 40% and 60% respectively.

6. The balance amount of bank loan if any shall be utilized for improvement and development of the gas service only. If necessary, they may open a joint account in a bank as may be convenient to them.

Sd/- Sd/-

Shri Hage Tara Shri Hage Appo

(First Party) (Second Party)

Witness :

1. Shri Hage Ajo (Sd/-)

2. Hage Hanya (Sd/-)

3. Hage Taki (Sd/-)

4. Shri Hage Tatung (Sd/-)

5. Shri Hage Tado (Sd/-)

6. Hage Batt

Agreement executed in my presence

Sd/-

JMFC, Ziro

4. Shri Hage Tara, the first party of the agreement, undisputedly is the broth