The court has a duty to frame issues before taking evidence, and the absence of a defendant on the date fixed for framing of issues does not entitle the court to proceed ex-parte and take evidence of the plaintiff.

1. - This is a defendant's appeal against the judgment and decree of the learned District Judge, Balotra, dated March 18, 1985, by which, he has decreed the plaintiffs' suit ex-parte against the 'Against judgment and decree dated 16-3-1985 passed by the learned District Judge Shri Navrang Ray Jatav defendants for a sum of Rs. 96,751/-, with pendents lite and future interest at rate of 6% p.a.

2. I have heard learned counsel for the parties and have gone through the record.

3. In view of the judgment I propose to pass, I need not state the facts of the case at length. Suffice it so say that the plaintiff Bhoj Mal (respondent No. 1) had filed a suit for money against defendants Peetamber Das and others, on the allegation that the plaintiff and the defendants had carried on a joint venture in the name of Peetamber Das & Co. from April 1, 1981 to July 31, 1981. The parties were partners of this firm and had different shares as stated in para I of the plaint. Plaintiff Bhoj Mal had advanced different amounts to the firm at different times. Out of them, certain re- payments had been made and finally a sum of Rs. 65,260/- including interest remained outstanding against the firm. He further urged that out of the dealings of the firm, the firm had acquired a gross profit of Rs 2,66,092/- and after deducting the expenses, the plaintiff was entitled to a sum of Rs. 40 000/- by way of profit. The defendants did not render accounts nor paid the amounts due to the plaintiff and, therefore. the plaintiff had to file the present suit for recovery of Rs. 1,05,250/- or alternatively, with a prayer that the defendants may be asked to render the accounts and whatever amount is found due, may be directed to be paid to the plaintiff He also prayed that the partnership may be dissolved w.e.f. July 31. 1981 and also prayed for any other relief which he may be found entitled to.

4. Defendants No. 1 and 5 filed separate written statements. Defendant No. 5 who is the son of the plaintiff, admitted the plaintiff's claim where as defendant No. 1 Peetamber Das contested the suit on various grounds. Defendant No. 1 denied the joint venture of partnership and claimed that it was his sole proprietorship. He, of course admitted that the plaintiff had made certain advances to defendant No. 1, but the same had been repaid and nothing remained due. Defendants No 2 to 4 did not appear despite service, as has been observed by the court-below. The plaintiff moved an application under Order 11, Rule 15, CPC, where upon the defendants were asked to produce the books of accounts before the court on the next date of hearing, i.e., on February 1, 1985. However, the books were not produced and an adjournment was sought on that date On February 16, 1985. defendant No. 1 did not appear nor the books were produced and, therefore, the court directed that the defendant shall not he entitled produce these documents at a later stage and adjourned the case for admission or denial of documents and for framing the issues, to March 15, 1985. On March 15, 1985 again defendant No. 1 did not appear either personally or through his counsel. Therefore, the court directed ex-parte proceedings to be taken against him. Defendants No. 2, 3 and 4 were already placed ex-parte and defendant No. 5 had already filed the written statement admitting the plaintiff's claim. The court further observed that the plaintiff wanted to file a rejoinder, and with the permission of the court, the same was filed on that very day. Then the court further observed that as the defendants were not present and ex-parte proceedings were being taken, the question of admission or denial of the documents did not arise and it proceeded to frame the issues After framing the issues, the court further proceeded to take exparte evidence of the plaintiff The plaintiff Bhoj Mal entered the witness box and closed his evidence. The case was then adjourned to March 16, 1985 for final arguments and on that day, after hearin