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2009 Supreme(P&H) 1257
2009(4) LAW HERALD (P&H) 2788
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Sham Sunder
C.R. No. 5929 of 2003
Balwinder Singh
v.
M/s Kisan Commission Agents, New Grain Market, Malout & Ors.
{Decided on 29/07/2009}
Present:Mr. Jasdeep Singh, Advocate, for the revision-petitioners, in both the revision-petitions.
Mr. Harsh Aggarwal, Advocate, for the respondent, in both the revision-petitions.
IMPORTANT POINT
Secondary Evidence--Once the other partners, against whom suit for recovery/rendition of accounts was filed by plaintiff, and who were in possession of original account book failed to produce the same, the plaintiff, had no other alternative, than to file an application for secondary evidence
Headnote:Evidence Act, 1872, S.66--Partnership Act--Secondary evidence--Notice--Partnership firm--Suit for recovery on the basis of account books (bahis)--It is evident from Zimni order that arbitrators made statements in Court that account books were in possession of other partners of firm who were not producing the same--The photo copies of relevant entries of account books were produced by plaintiff/respondent, at the time of filling of suit--Since the original account books, when the same were in of plaintiff, were produced, it could not be said that the same were not in existence possession at any point of time--It is also evident, that later on the account books came into possession of other partners, but they did not produce the same--In these circumstances, no alternative was left with plaintiff, than to move applicant for secondary evidence--When other partners of firm who were in possession of account books, were summoned by Court, and appeared therein, no separate notice under S.66 of the Act was required to be served upon them by plaintiff--Trial Court, was justified in allowing application for secondary evidence, upheld.
Sham Sunder, J.:-This judgement shall dispose of Civil Revision No. 5929 of 2003, filed by Balwinder Singh, and Civil Revision No. 5930 of 2003, filed by Joginder Singh, under Article 227 of the Constitution of India, against the order dated 14.11.2003, rendered by the Court of Civil Judge (Senior Division), Malout, District Muktsar, vide which, it accepted the applications for secondary evidence, filed by the plaintiff/respondent.
2. The plaintiff/respondent, filed two suits for recovery, on the basis of account books (bahis). During the pendency of the suits, it moved two an applications, for secondary evidence of the account books (bahis), on the ground, that earlier the plaintiff/respondent firm was having the partners namely Sardool Singh, Harinder Singh, and Harkiran Singh. Thereafter, a dispute arose, between the partners, and the plaintiff/respondent, filed a suit for rendition of accounts, against the partners. Since the account books and cheque books etc. were in the possession of Harinder Singh and Harkiran Singh, the other partners, the plaintiff/respondent, had no access to the same. The said parnters and Munim of the firm, were summoned, but they failed to produce the original account books (bahis). It was further stated that, it was, thus, beyond the control of the plaintiff/respondent, to produce the original account books (bahis). Accordingly, two applications for secondary evidence, were moved, which were allowed, vide order dated 14.11.2003, passed by Additional Civil Judge (Senior Division) Malout.
3. Feeling aggrieved, the aforesaid revision-petitions, have been filed by the revision-petitioners.
4. I have heard the Counsel for the parties, and have gone through the record of the case, carefully.
5. The Counsel for the revision-petitioners, submitted that, as many as 16 opportunities, were granted, to the plaintiff, to produce and conclude its evidence, and even costs, were imposed upon it. He further submitted that no mandatory notice, under Section 66 of the Indian Evidence Act, was served upon the other partners, to produce the original account books, if the same were available with them. He further submitted that the said account books, were not, in possession of the other partners. He further submitted that since the affidavit, in support of the application was not filed by the plaintiff, the same was liable to be dismissed, on that ground. He further submitted that the order, being illegal, was liable to be set aside.
6. On the other hand, the Counsel for the respondent, submitted that, once the other partners, against whom, the suit for rendition of accounts, was filed, by the plaintiff, and who were in possession of the original account books, failed to produce the same, even after one of them alongwith the Munim, was summoned, the plaintiff, had no other alternative, than to file an application for secondary evidence. He further submitted that, even the original account books (bahis), were produced, at the initial stage, on 08.09.2000, but the defendant, did not come present, and thereafter, the plaintiff, was directed to produce the same, on 21.09.2000. He further submitted that, on 21.09.2000, the books of account (bahis), were brought by the plaintiff, which were inspected by the defendant alongwith his Counsel. He further submitted that the order impugned, being legal and valid, was liable to be upheld.
7. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the revision-petitions, deserve to be dismissed, for the reasons to be recorded, hereinafter. Copies of some zimni orders, passed in the suit, which have been produced, by the Counsel for the respondent are taken on record. It is evident, from the order dated 08.09.2000, that the plaintiff alongwith the original account books, was present, but the defendant, was not present. The plaintiff, was directed to appear on 21.09.2000, alongwith the original a
