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IN THE HIGH COURT OF RAJASTHAN
Deepak Maheshwari, J.
Bhojamal son of Shri Rijumal - Appellant
Versus
Devaram son of Shri Salagram - Respondent
S.B. Civil First Appeal No. 107 of 1993
Decided On : 11-05-2017
Civil Procedure Code – Order 41 Rule 31 – Rule 24 Order 41 –Issue on Partnership business, burden of Proof – learned counsel for the appellant stated that the burden of proof in respect of issues No. 3 and 6 was on defendant and regarding Issue No. 1 was on plaintiff but, learned trial Court has erred in clubbing all these three issues and decided them jointly – It has also been argued that PW-2 and PW-3 were important witnesses examined on behalf of the plaintiff but, no discussion has been made by learned trial Court in the impugned judgment in regard to the evidence adduced by them – They were important witnesses on the execution of Exhibit-1. Learned trial Court has committed a grave illegality in not considering their statements –He has thus prayed that the impugned judgment and decree is liable to be quashed and set aside –Held, In Court considered opinion, it cannot be believed that on third day of death of his son, plaintiff would call the Inspector of Excise Department and will sit with defendant to clear off the accounts of the partnership business, who happened to visit his house for offering condolence – Evidence of PW-2 and PW-3 also, as discussed above, does not inspire confidence regarding execution of Ex. 1 and Ex. 10. DW-1, has categorically denied execution of deed Ex. 1 and Ex. 10 – Plaintiff admits to maintain the cash book in his cross-examination, but has failed to produce it in evidence, by which it could have been proved that Rs.4,000/- was paid in cash to him by Devaram while clearing off the account of the partnership prior to execution of Ex. 1 and Ex. 10 – Learned trial Court has also arrived at the same conclusion, but on different premise –The ground mentioned by learned trial Court is that after execution of Exhibit-1, it was not the liability of plaintiff to deposit the Government dues – Thus, it cannot be inferred that he deposited the same under compulsion and is entitled to recover the same Resultantly, the findings arrived at by learned trial Court are found correct having been substantiated by the evidence available on record and are thus upheld – Appeal preferred by the plaintiff - appellant is found devoid of merit –Appeal dismissed
Deepak Maheshwari, J.
This appeal has been preferred against the judgment and decree dated 29.01.1993 passed by learned District Judge, Balotra in Civil Original Case No. 15/1987 whereby, he dismissed the suit for recovery of Rs. 25,570/- filed by the plaintiff-appellant.
2. A suit was filed by plaintiff-appellant on 24.03.1987 stating therein that he and defendant-Devaram were partners in three firms which were carrying on business holding license for poppy husk and liquor. On 28.06.1983, defendant came to the house of plaintiff at Balotra and cleared the accounts of these firms upto the period 1983-84. Plaintiff had invested Rs.50,000/- in the business and a loss worth Rs.46,000/- came to his share. Defendant paid him Rs.4,000/- and a deed (Ex.1) was executed by him whereby, the plaintiff was ousted from the partnership business. It was also decided that the liability to pay any Government due, penalty, recovery, etc., would be of the defendant alone. Despite that, Excise Department issued notice to the plaintiff for realisation of the amount due. Plaintiff asked the defendant to deposit the said amount but he showed his inability then, the plaintiff deposited the amount of Rs. 21,990/- on four dates as mentioned in para-3 of the plaint. Defendant assured to pay the said amount back. He paid Rs.4,000/- on 10.11.1985 and Rs.1,000/- on 05.12.1985 but thereafter, no amount was paid back to the plaintiff. A registered notice was given by plaintiff to defendant on 23.02.1987 to pay him Rs.25,570/- including the interest and the expenses for notice etc. Since, the amount was not paid by the defendant, suit was filed for recovery of the said amount.
3. Defendant has denied the allegations made in the plaint by way of filing his written statement. It has been stated that no deed was executed between them to clear off the accounts of the firms and to undertake the liability by defendant alone. Any such deed, if any, might have been forged by the plaintiff. It has also been stated that besides plaintiff and defendant, Mohanlal Soni and Dharmaram Choudhary were also partners in the business. In absence of arraying them defendants in the suit, the same is not maintainable. It was also stated that the defendant never went to plaintiff's house at Balotra on 28.06.1983. No money was paid by him to the plaintiff on 10.11.1985 and 05.12.1985. It was also stated that the plaintiff was maintaining the accounts of the partnership business and he used to deposit the entire amount of dues in Excise Department after realising the share from all the partners. The amount stated in para-3 of the plaint has been deposited by plaintiff only after collecting the same from different partners. It was also stated that a sum of Rs.24,000/- was given by defendant in presence of Mohanlal to the plaintiff on 20.03.1984 which he has not paid back and to grab the money, this false suit has been filed.
4. Plaintiff filed replica to the written statement stating therein that there were only two partners in the partnership firms. Defendant included Mohanlal and Dharmaram with him to the extent of the share limited to him. So far as the plaintiff is concerned, only the defendant was in partnership with him in the ratio of 50-50%. It has been stated that all the record relating to partnership firms was kept by defendant. He came along with Accountant of the firm Pannalal to plaintiff on 28.06.1983 and executed the deed (Ex.1). No amount was given by defendant or any other person to the plaintiff before he deposited the Government dues in the Excise Department as stated in para-3 of the plaint. He denied that Defendant ever gave him a sum of Rs.24,000/-.
5. On the pleadings of both the parties, as many as 9 issues were framed by learned trial Court which are as follows:-
"(1) Whether, defendant executed a deed on 28.06.1983 whereby, the accounts of the partnership firm were cleared and liability to deposit Government dues, recovery and penalty etc. was owned by de
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