1995 Supreme(MP) 1221

IN THE HIGH COURT OF MADHYA PRADESH
R.S. Garg, J.
M/s. Ashok Kumar Kanhiyalal – Appellant
Versus
Laxmi Kirana Stores – Respondent
S.A. No. 297 of 1986 (J)
Decided On : 31-08-1995

Headnote:(1)Civil Procedure Code, 1908 – O. 41 R. 27 – certified copy of crucial document could not be obtained before judgment of trial Court – such document should be taken on record for doing complete justice.

       (2) Partnership Act, 1932 – S. 68 – entries in register of firms could not be filed in trial Court – may be filed in appellate Court.

        Short Note

       1. The present appeal has been admitted on 27.11.1986 on the substantial question of law and also prayed that additional substantial question of law deserves to be framed as:

       "Whether under the facts and in the circumstances of the case the first appellate Court was justified in rejecting the appellant's application filed under order 41 Rule 27 CPC for taking additional evidence on record?"

       2. To my mind in the facts and circumstances of the case this question deserves to be framed. Counsel for the appellant deserves to be heard on this question also.

       3. Under the provisions of section 68 of Indian Partnership Act any statement, intimation or notice recorded or noted in the register for firms shall, as against any person by whom or on whose behalf such statement, intimation or notice was signed, be conclusive proof of any fact therein stated. According to sub – section 2 of section 68 a certified copy of an entry relating to a firm in the Register of Firms may be produced in proof of the fact of the registration of such firm, and of the contents of any statement, intimation or notice recorded or noted therein. Sub – section 1 applies to the partners inter se while sub – section 2 provides that the certified copy of the entry would be conclusive proof of the fact of the registration of the firm and all the contents of the statement recorded in the said entry. The learned first appellate Court was not justified in holding that as the appellant• did not file the said entry before the trial Court he was not entitled to file such entry subsequently in the first appellate Court. An additional evidence unless sought to be produced to delay the trial and to get undue advantage over the rights of other party and would tentamount to abuse of process of law, would ordinarily be accepted to do justice between the parties. In the instant case the plaintiff filed the documents alongwith an application showing the reasons as to why the said documents could not be filed before the trial Court, application under Order 41 Rule 27 states that as the copy was not available to the appellant/plaintiff the same could not be filed. The said application was filed on 5.9.1983. A copy was issued on 15.3.1983 while the judgment of the trial Court was delivered on 1.2.1983. Under these circumstances the document was not available with the appellant and the same could not be filed. In any case this was a fit case in which the additional evidence ought to have been taken on record.

       4. Kanhaiyalal signed the pleadings as partner of the firm and the defendants raised the plea that the said Kanhaiyalal was not entitled to file the suit. Kanhaiyalal as PW – 1 in paragraph 1 of his statement has stated that he is partner of M/s. Ashok Kumar Kanhaiyalal. In the cross – examination this fact was challenged by suggesting Kanhaiyalal that he was never a partner of the firm. The learned trial Court on face of this statement was persuaded to take the view that in absence of the entry made under section 68 Kanhaiyalal could not be held to be a partner. At this stage it is not necessary to decide the appeal on the question on which the appeal has been admitted but it can be decided on the question which I have just framed. The first appellate Court was not justified in rejecting the application filed under Order 41 Rule 27. The application deserves to be allowed. It is hereby allowed. The documents be taken on record as evidence. As the first appellate Court has not considered merits of the case the matter be remanded back to the first appellate Court for hearing the parties in accordance with law. The defendants would be entitled to lead evidence in rebuttal.