JUDGMENTBY: RIGBY J, THOMSON CJ, NEAL J

RIGBY J (delivering oral Judgment): This is an appeal from a decision of Mr. Justice Azmi. The appeal is restricted to part of an order made by him arising out of a partnership action.

The brief facts of the case were that in August, 1956, the appellant and the two respondents entered into a partnership agreement for the purpose of taking over and running the Star Cinema, Ipoh, for a period of five years.

In pursuance of that agreement the lease of the cinema was obtained from the owners for a period of five years as from 1st September, 1956. Under the terms of the partnership the partners shares were in equal shares and under the partnership agreement itself the First Party, that is to say the appellant, was to be the General Manager of the Cinema with executive powers and control. The second respondent was to be the Treasurer and the first respondent was to be in charge of arranging for the showing of the particular films to be exhibited at the Cinema.

In January, 1957, the Cinema was badly damaged as a result of fire and was not in fact repaired until 6th February, 1958. In the meantime it would appear that the partnership, both before and, indeed, after the fire, got into financial difficulties, and disputes arose between the partners resulting in a dissolution of partnership in November, 1957, and an application to the Court for a declaration as to the date of dissolution and for the usual order for accounts to be taken.

By paragraph 26 of the plaintiffs (that is to say the present respondents) statement of claim it was alleged that the defendant (that is to say the present appellant), as the partner entrusted by the terms of the partnership agreement with the management of the said Star Cinema, was at all times liable for such matters as the insurance of equipment installed in the said Star Cinema and also insurance against workmens compensation payable to employees of the partnership. It was alleged that in breach of his duty in this behalf which, under the terms of the partnership agreement, he owed to the plaintiffs as his partners, the defendant failed to insure the fans installed on the said theatre premises and hired from the Central Electricity Board, and also to effect sufficient insurance against workmens compensation in consequence whereof the partnership has suffered loss as a result of the said fire. Particulars of the loss were the cost of fans hired from the Central Electricity Board and destroyed, and compensation payable to an employee who suffered fatal injuries as a result of the fire.

By paragraph 12 of his defence the defendant denied that he acted in breach of his duty to his partners, the first and second plaintiffs, as alleged. The paragraph continues that the matter of insurance was fully discussed at a meeting of the partners held in 1956 at which Mr. Tan Chong the hall manager, and a representative of the Asia Insurance Company were present, and the details were left to the said Mr. Tan Chong.

Mr. Das for the respondents contended, and in my view rightly contended, that the paragraph, in effect, was a plea of confession and avoidance. The defendant did not deny that there was a duty to insure but he alleged that the matter had been discussed at a meeting and it had been left to the Cinema Manager to make the necessary arrangements.

At the trial, evidence was given on behalf of the respondents that no such agreement had in fact been made with Mr. Tan Chong to arrange the matters of insurance. The defendant himself did not give evidence. The learned Judge in dealing with this matter said this:--

"There is another claim in the Plaint which has to be decided now and

that is whether the defendant should be liable for the failure to

insure the fans installed in the said premises and hired from the

Central Electricity Board and also the failure to effect sufficient

insurance against Workmens Compensation in consequence whe

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