1968 SCMR 213 (PLP)

HAMOODUR RAHMAN, J.-This appeal, by special leave, arises out of a suit filed by the appellant herein for the recovery of a sum of Rs. 22,639-14-6 as money due to the appellant on account of his half shire in joint contract businesses alleged to have been carried on in partnership with the respondent herein between 31-6-1944 and 31-3-1946, or alternatively for accounts of the alleged partnership business. The case of the appellant, as made in the plaint, was that during the last World War, on the proposal of the respondent, he entered into an oral agreement with him on the 30th of July 1944, to carry on contract business in partnership on, inter alia, the following terms:- (1) that contracts will be taken in the separate names of the partners but the same will be executed jointly, (2) that both the partners will contribute moneys in equal amounts, share the labour and equally divide what is left after meeting the expenses. (3) that both will bear the loss in equal shares if there be any loss, (4) that accounts of the partnership business will be written and maintained by one Ramesh Chandra Waddadar, but the account books and the cash will be kept with the respondent, and (5) that after the completion of the joint businesses the said Ramesh Chandra Waddadar will write out an account showing the profit or loss, if any, and would hand over copies of the same to each of the partners. Thereafter, both partners would compare the copies with the Original books of account and after striking out the account ihey would share the profits and/or losses equally. On the basis of this oral agreement it is alleged that the lartners obtained contracts in their separate names from the Military Authorities and executed the same jointly in accordance with the above terms and conditions between 31st July 1944, and 31st March 1946, and earned a profit of Rs. 75,229-15-9. Out of this the half share of the appellant came to Rs. 37,615 but after giving credit for an aggregate sum of Rs. 14,975-1-6 received by him from time to time the balance due and owing was Rs. 22,639-14-6. The appellant further alleged that after the joint contract works were completed the said Waddadar who was joined as a defendant in the suit prepared the accounts and handed over copies of the same to the partners in the latter part of July 1946. It was not, however, stated in the plaint as to whether the partner ship business had been dissolved hut all that was averred was that the joint contract businesses between the partners had been closed since 1-4-1946. The respondent contested the suit aid in his written statement specifically denied that any such partnership ever came into existence. According to him, the appellant and he carried on separate contract businesses, but as there was close friendship between the two each used to help the other with moneys from time to time according to their respective needs. Separate accounts were kept of these Iran transactions (howlat account) from December 1944, which after the closing of accounts at the end of the financial year 1945-46 disclosed that a sum of Rs. 13,000 became due and owing from the appellant to the respondent. The appellant had, it was said, filed the suit vexatiously in order to prevent the respondent from recovering the said amount for which a lawyer's notice had already been served on the appellant on 18-4-1947. Apart from this, certain legal defences were also raised as to the maintainability of the suit by reason of the provisions of the Partnership Act and it was also contended that the suit was barred by limitation. A detailed statement of account, as to the moneys from time to time lent and repaid by the parties to each other, was also filed along with the written statement. The defendant No. 2 Ramesh Chandra Waddadar also filed a separate written statement admitting all the allegations in the appellants' plaint and pointing out that he was an unnecessary party to the suit, as the appellant had not claimed any relief against him. On these pleadings the trial Court framed the following issues:- "(1) Was there any partnership as alleged in the plaint? Is the suit maintainable for want of registration of the alleged partnership? (2) Is the plaintiff entitled to dissolution of the partnership and account? (3) To what relief, if any, is the plaintiff entitled?" At the trial the appellant sought to establish the partnership by the oral testimony of some 10 witnesses besides himself arid the said Waddadar who deposed in his favour. He also proved the copies of accounts said to have been prepared by Waddadar, some cheques, pay-in-slips, transfer receipts issued by his bankers, various pass book entries and some documents relating to a joint over-draft account. The oral testimony adduced by the appellant was of three kinds. Three witnesses were examined to say that they were present at the time the oral agreement was entered into between the appellant and the respondent. Four witnesses deposed to the effect that they had been told of the existence of the partnership by the alleged partners themselves at one time or the other, and lastly three witnesses deposed that they had been employed by the partners in connection with their joint contract works which was supervised by both of them. Waddadar, of course, not only proved that there was a partnership on the basis of the oral agreement but also proved the accounts said to have been prepared by him of the joint partnership business which he claimed were maintained in terms of the agreement of the partners. He also proved the cheques and the pay-in-slips, by which it was said he withdrew and deposited moneys contributed by the partners towards the joint businesses and received by them in their respective shares. The respondent, on the other hand, examined himself and proved his books of account for the years 1944-45 and 1945-46, his pass books for the relevant period and certified copies of the income-tax assessment orders for the years 1944-44 and 1944-45. A permit granted to him personally by the Military Authorities on 22-10-1944 and renewed from time to time up to 30-9-1945 was also exnibited to show that he had the authority to enter military premises on Government duty. The income-tax assessment orders showed that he had been assessed as an individual in those years. The appellant, it may here be pointed out, proved no separate account books of his own nor did he prove any permit to enter protected areas, although he maintained in his evidence that he too had been furnished with such a permit by the Military Authorities. The respondent examined only one other witness, apart from himself, who was his cousin as well as his employee. The latter denied all knowledge of the alleged partnership and further stated that it was not Ramesh Chandra Waddadar but one Jadunath Das, who used to write the accounts of the respondent. After he left for Calcutta one Datta wrote the accounts in 1946-47 and that since 1947-48 one Abdul Makin was writing the accounts of the respondent. It appears, however, that during the course of cross-examination he unwittingly in an unguarded moment stated that "when Waddadar left he made over the khattas to Mustafa Chowdhury", but immediately afterwards corrected himself andsaid that "Waddadar did not keep account books and he did not make over any account books." The trial Court took the view that in this case if the direct evidence, which was oral, was not accepted, the documentary evidence would not be of much avail, since it was "difficult to find out apart from oral evidence that cheques for large amounts were really rough and provisional division of income." It did not consider it necessary, therefore, to examine in detail the character of the account books, although it was of the opinion that the direct evidence in the case did receive some indirect support from the documents. The direct evidence was, however, found to be of so overwhelming character as to establish beyond any doubt that there was a partnership between the appellant and the respondent, as alleged by the former. The appellant's suit was, accordingly, decreed on 5-8-1952 in preliminary form on contest with costs against the respondent but was dismissed without costs against Waddadar, the defendant No. 2 in this suit. The respondent was directed to render accounts of the contracts mentioned in the plaint and it was ordered that in default a final decree would be passed in favour of the appellant for the sum of Rs. 22,639-14-5. This was followed by a final decree for the same amount on 22-12-1952, From these decrees the respondent preferred two appeals- to the High Court of East Pakistan. In the High Court the following grounds were urged:- (1) that the dissolution of the fi oat not having been legally proved the plaintiff had no cause of ion and the suit was not maintainable as framed, (2) that the suit was barred by reason of the provisions of sections 43 and 69 of the Partnership Act, (3) that the decree as passed in the case was not in accordance with law, and (4) that in any event the evidence adduced on behalf of the plaintiff did not prove the partnership, as alleged in the The High Court accepted the contentions of the present respondent and held that since the partnership was entered into after the 1st October 1932, it could only be dissolved in the ways mentioned in the Partnership Act, namely, in the present case, by the service of a notice in writing of the intention to dissolve the Partnership prior to the institution of the suit. Since the appellant had neither done this nor claimed dissolution of the Partnership by the Court this suit for a declaration that the partnership, which was admittedly unregistered, stood dissolved and for accounts thereof, was not maintainable. The High Court also was of the view that the decree as passed by the trial Court Was not in proper form. But the appeal was not disposed of only on these grounds. The High Court also entered upon an elaborate consideration of the last ground, namely, as to whether the evidence adduced in the suit, even if believed, proved the Partnership alleged in the plaint and came to the conclusion after examining the evidence, both oral and documentary, that the partnership had not been proved. The appeals were, accordingly, allowed and the appellant's suit was dismissed. An application filed by the present appellant during the hearing of the appeals in the High Court for the taking of additional evidence was also rejected, as it was felt that none of the documents, which were sought to be put in by way of additional evidence, threw any further light on the main questions arising in the appeals. From this decision the appellant came up by way of two appeals to, the Federal Court of Pakistan after obtaining certificates under sections 109 and 110 of the Code of Civil Proceduse on the ground that the value of the subject-matter of the suit and the appeals was in excess of Rs. 10,000 and the judgment passed by the. High Court was not one of affirmance. These appeals were ultimately heard by the Supreme Court: of Pakistan which found in favour of the appellant on the questions of law relating to the maintainability of the suit. Learned counsel appearing for the respondent before the Supreme Court then wanted to show that evidence' in proof of the partnership was untrustworthy and unacceptable, but the Supreme Court did not go into the evidence, although the High Court had dealt with the evidence on merits as well and held that the partnership had not been proved, as it was felt that "the evidence in the case is considerable and consists of many depositions and a large number of documents which need careful examination." The appeals were, accordingly, accepted and the judgment and decree of the High Court were set aside and the case remanded for a fresh decision after hearing the parties. The High Court has now heard.the appeal on remand and has, after an elaborate and careful re-examination of the evidence, again come to the conclusion _that the witnesses examined on behalf of the appellant were untrustworthy and unreliable. The previous finding to the effect that the, evidence does not establish any partnership as alleged in the plaint has again been affirmed. and the dismissal of the suit maintained. The appellant has, therefore, again come up on appeal to this Court by special leave. Leave was granted to consider "whether the findings of the High Court are based upon full consideration and evaluation of the A evidence and all the circumstances appearing in the case." The main contention of the learned counsel appearing in support of the appeal is that in arriving at its conclusion the High Court has not only ignored material evidence but also disregarded certain clear and categorical admissions made by the respondent in the course of his evidence. Learned counsel contends that the High Court has not assessed the respondent's evidence on correct principles. According to him in a civil matter the evidence had been evaluated in the same manner as in a criminal case contrary to the accented rule that the decision in a civil dispute should be bases on a preponderance of probabilities. Learned counsel further complains that the discussion of the respondent's evidence by the High Court has been sketchy and superficial and draws our attention to the fact that it has not been noticed that although the respondent had been confronted in the course of his cross-examination with various cheques purported to have been drawn in favour of the appellant, the amounts whereof were, curiously enough, shown in his own account books as spent for labourers, could not explain the discrepancy even after consulting his lawyers and examining his books for about 10 minutes. Again, when he was confronted with the accounts filed by him along with his written statement showing that he had paid Rs. 2,000 by way of interest to the appellant, contrary to his testimony that he and the appellant never paid interest to each other for the sums that were respectively lent to each other, he was unable to offer any explanation. The amounts so alleged to have been drawn by cheques issued in the name of the appellant and shown in the account books to have been paid to labourers consisted, it is pointed out, of a sum of Rs. 10,000 drawn on 14-4-1945, Rs. 16,000 drawn on 17-4-1945 Rs. 10,000 drawn on 17-1-1945, Rs. 17,000 drawn on 3-8-1945 and Rs. 4,700 drawn on 6-8-1945. It is urged that the payment of such large amounts to the appellants, for which the respondent could not offer any explanation even after careful examination of the cheques of the account books, could not possibly be reconciled save on the basis of the partnership. It is true that the respondent could not satisfactorily explain as to why these amounts had been shown in his account books as amounts paid to labourers but it does not necessarily follow from this that the only inference that can be drawn is that these amounts must have been paid to the appellant as his share of the profits of the joint partnership business. Admittedly, according to the appellant's own case his share of the total profits came to Rs. 37,615 and out of this he had received only Rs. 14,975-1-6. It is clear, therefore, that the amounts represented by the above-mentioned cheques which aggregated to Rs. 57,700 could not possibly have been payments made by way of division of profits of the alleged partnership. It is not without significance that the appellant himself offered no explanation for these large payments. It was not also his case that these moneys were given to him for disbursal to labourers employed for executing the joint contract works. He did not file any accounts either to show as to what was the exact total amount he contributed towards the expenses of the particular ventures mentioned by him in his plaint, apart from saying that he paid in all a sum of Rs. 1,18,000 or thereabout, both towards the capital and on account of sums earned on bills. He did not also produce any vouchers or receipts to show that he had Purchased any articles or made any payments on behalf of the alleged joint partnership business. It cannot, therefore, ,be said that because the respondent failed to explain the discrepancies between the cheques and the entries in his accounts it must necessarily follow that the payments must have been made on account of the joint partnership business. This argument is clearly f4Ilacious.and cannot be accepted- These questions have, in any event, been fully considered by the High Court which has come to the conclusion that if there was any partnership as .alleged it would not have been difficult for the appellant to trace these payments to the accounts (Exhs. 1 and 1-A) prepared by Ramesh Chandra Waddadar and supplied to the appellant in July 1947. No effort was, however, made on behalf of the appellant to do so nor did he produce any document which would have unequivocally supported his case regarding the partnership, particularly, since the direct oral evidence was itself of an extremely vague and indefinite character. The witnesses examined to establish the alleged oral agreement were all chance witnesses who had no particular business to be present at the time when this oral agree ment was said to have been entered into, for, on the admission of the appellant himself no person was invited to be present at the time of the making of this oral agreement. Learned counsel has also relied upon another cheque by which it appears that the respondent withdrew from his account in the Comilla Banking Corporation a sum of Rs. 4,000 through the appellant and paid Rs. 2,000 to him. Similarly another sum of Rs. 4,300, it appears was drawn by a cheque through Ramesh Chandra Waddadar on 17-4-1945 but this amount was not entered in the account books of the respondent. It is argued that since the payment of Rs. 2,000 out of a sum of Rs. 4,000 showed that it was exactly 50% of the amount withdrawn it was necessarily in payment of the half share of the appellant. This argument, however, overlooks that such a payment is, in no way, inconsistent with the defendant's case that the appellant and the respondent from time to time advanced moneys to eacn other according to their respective needs. It may well have been that the respondent after drawing Rs. 4,000 from his bank advanced Rs. 2,000 to the appellant and retained Rs. 2,000 for his own purposes. The non-entry of the sum of Rs. 4,000 drawn through Ramesh Chandra Waddadar in the account books also does not, in any way, advance the case of the appellant, for, if it is true that Ramesh Chandra Waddadar was the person appointed to maintain the account books it was his duty to make a proper entry of the same in the books of account. If, as now alleged, this amount was withdrawn for the purposes of the joint partnership business, this should have been done. The fact that this was not done clearly shows that this was not money withdrawn for the purposes of the partnership. The learned counsel's reliance upon an entry in a pay-in-slip (Exh. 3/C) showing a deposit of Rs. 20 by way of interest for a bond which the appellant and respondent had jointly executed for. an advance of Rs. 7,000 from the Comilla Banking Corporation, does not also help the appellant's case. As explained by Probodh Kumar' Chakraboity (P. W. 10), a cashier of the United Bank of India, with which the Comilla Banking Corporation was now merged, this amount of Rs. 20 was deducted in advance for interest of the loan but only Rs. 10 therefrom was debited to the account of the respondent. This may well have been a solitary occasion in which they executed a joint bond for an advance. This witness categorically stated that the appellant and the respondent had never opened any joint over-draft account with the Comilla Banking Corporation but had separate current accounts, This advance of Rs. 7,000 was, however, taken by executing a joint bond and each became liable for half of the amount in his own separate account. In the face of this evidence it is clear that this could not have been an advance for the purposes of any joint business. It may well have been that the respondent was not maintaining proper accounts of his own or not entering all items therein but the appellant cannot succeed in establishing his case on the basis of inaccuracies contained in the account books cf the respondent nor can he succeed upon the infirmities in the evidence of the respondent. The onus of establishing the alleged partnership, as rightly held by the High' Court, was on the appellant and not on the respondent. He had, therefore, to succeed on the strength of his 3 own evidence and not on the weakness of the evidence of the respondent. It is not without significance that the learned counsel appearing on his behalf has studiously avoided taking us through the evidence adduced in support of the appellant's case. He has also avoided dealing with the criticisms made by the High Court of the character of that evidence. Perusing the evidence, however, we have come to the conclusion that the criticisms made by the High Court were, in every way, justified, for, the evidence was of an extremely unsatisfactory character. We cannot also help observing that even the learned counsel appearing in support of this appeal has forced to concede that the view taken by the High Court of that evidence could not be characterised as an unreasonable view. In the circumstances, we have come to the conclusion that no ground at all has been made out for holding that the High Court has not appraised the evidence in the case upon correct priciples. There were also, in our view, no probabilities in support of the appellant's case. This appeal must, therefore, in our view, fail and is, accordingly, dismissed with costs. For the same reasons Civil Petition No. 54-D of 1965 also fails and is dismissed. Appeal dismissed.