When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.'
Under this provisions a party is bound to give the opponent's documents as evidence in the case of three conditions are fulfilled. The first condition is that the document should be required by that party to be produced in evidence. The second condition is that it should be inspected by the party. The third condition is that the party producing the document should require the party calling for it to put it in evidence. In the instant case, only the first of these conditions has been satisfied but she other two have not been satisfied. That being the position, the account-books cannot be treated as the plaintiff's evidence in the case. It would therefore follow that it could not be inferred from the unproved account-books that the partnership stood dissolved on 28-10-1943.1
Reported in : AIR1959Bom528; (1958)60BOMLR203; ILR1959Bom29
Judge : J.R. Mudholkar, J.
Decided On : Sep-25-1957
Acts : Evidence Act, 1872 - Sections 5, 26-A, 101 to 104, 109 and 163
Case Number : Second Appeal No. 59 of 1953
Appellant : Liladhar Ratanlal Vyas
Respondent : Holkarmal Sohanlal and Anr.
Indian Evidence Act (I of 1872), Sections 109, 163 - Applicability of Section 109--Existence of partnership admitted and plaintiff contending that par ..... In that notice the plaintiff had demanded accounts of the partnership business but the defendants failed to render accounts. By reason of this failure, the plaintiff was compelled to institute the suit out of which this second appeal arises. In the instant case, only the first of these conditions has been satisfied but she other two have not been satisfied. If the defendants fail, within the time given by the Court, to file translations or transliterations of those account-books their defence will be liable to be struck out.
1. This is a plaintiff' second appeal from the dismissal of his suit for accounts of a dissolved partnership.
2. According to the plaintiff he entered into a partnership with defendants 1 and 2 in the year 1942 and contributed Rs. 5000/- as his share towards the capital of the partnership business. The partnership business continued till 28-7-1948. On which date it was dissolved by virtue of a notice served by the plaintiff. In that notice the plaintiff had demanded accounts of the partnership business but the defendants failed to render accounts. By reason of this failure, the plaintiff was compelled to institute the suit out of which this second appeal arises.
3. Both the defendants denied that the first defendant had any connection with the partnership business. Both of them denied that the partnership business continued upto 28-7-48. Further according to them a sum of Rs. 5000/- contributed by the plaintiff was not towards the capital of the business but was by way of a deposit as security to cover future losses. They contend that the partnership business continued only up to 28-10-43 on which the date accounts were taken and a sum of Rs. 9230/12/- was paid to the plaintiff in full settlement of his claim. Further according to them, the suit was barred by limitation.
4. The trial Court upheld the contentions raised on behalf of the defendants and dismissed the suit. The lower appellate Court affirmed the decree of the trial Court.
5. It is contended before me, in the first place, that both the Courts below have erred in placing the burden upon the plaintiff to prove that the partnership did cease to subsist on 28-10-43. According to the learned counsel by virtue of the provisions of Section 109 of the Evidence Act it is for the party alleging dissolution of a partnership to prove that fact and that therefore the burden was upon the defendants to establish that the partnership stood dissolved on 28-10-43. In my opinion, Section 109 of the Evidence Act does not apply to this case at all. That section would apply where the existence of the partnership is admitted and the plaintiff's contention is that the partnership was not dissolved till the date of the suit. Where such is the position, of course, the burden would be upon the defendants, who had initially admitted the fact of there being a partnership to establish that it was dissolved and also to establish the date on which the dissolution was effected. In the instant case, both the parties are agreed about the fact of dissolution. While according to the plaintiff the date is 28-7-48, according to the defendant sit is 28-10-1943. Now, since the plaintiff has come forward with a definite case that the partnership has come forward with a definite case that the partnership was dissolved on the date mentioned by him the burden is upon him to establish that fact. This is so not by virtue of Section 109 of the Evidence Act but of the rule that the plaintiff must establish every fact on which he relies and which is relevant in order to entitle him to the relief claimed, unless such fact is admitted by the defendants. Therefore, it is not necessary for the defendants to establish that the partnership was dissolved much earlier unless and until the plaintiff discharged the burden which lay down him by adducing prima facie evidenceand that evidence is accepted by the Court.
6. In the instant case the plaintiff's allegation is that the partnership was dissolved by virtue of the notice service by him on the defendants. This notice has been proved by the plaintiff and therefore unless it is shown that the partnership had been dissolved at an earlier date it cannot be said that the partnership was dissolved by reason of the notice served by the plaintiff. According to both the Courts below there is evidence to show that the partnership was dissolved on the date mentioned by the defendant. The trial Court has relied upon two pieces of evidence in support of the finding that the partnership was dissolved on 28-10-1943; one is the entry in the account-books filed by the defendants to the effect that on 28-10-43 a sum of Rs. 9230/12/- was paid to the plaintiff; and the other is the statement in Exhibit P-8, which is a copy of an order passed by the Income-tax Officer under Section 26-A of the Actand which recites the fact that the partnership was dissolved in the Diwali of 1943 and that the profits of the firm were distributed between the partners.
7. In so far as account-books are concerned, it seems to me that they have not been proved at all. No doubt defendant no.2 did state as a witness that the account-books filed by him were those of the partnership but he admits that they were not written by him but that they were written by the munim of the partnership. He also admits that they were not written under his directions. In the circumstances, therefore, his evidence cannot be regarded as sufficient to show that the account-books belonged to the partnership. As regards the payment of Rs. 9230/12/- his evidence is to the effect that this amount was paid to the plaintiff by the munim, who it may be mentioned has not been examined as a witness in this case. Further, according to him, he was not present when this amount was paid.
8. The lower appellate Court has however held that the account-books field by the defendants, though not proved, must be taken to be the evidence of the plaintiff himself in this case since those account-books were produced by the defendants in pursuance of an application made by the plaintiff for their production. It is no doubt true that the plaintiff has asserted in the plaint that the partnership did maintain account-books and made an application requiring the defendants to produce the account-books. But there is nothing on record form which it cold be inferred that the plaintiff at any stage admitted, after the production of the account-books which are now on the record, that they are the account-books of the partnership. On the other hand, the plaintiff has, on more than one occasion, stated that the account-books of the partnership are written in the Punjabi script that he does not known the script and that the defendants should be asked to life translations or transliterations of those account-books. The plaintiff also wanted to inspect the account-books and permission was granted to him by the Court to inspect them. He was however unable to inspect the account-books as he could not secure the help of a Pujabi knowing person and it is an admitted fact that he never inspected the account-books. In these circumstances it is difficult to see how the account-books can be treated as the plaintiff's own evidence in the case. In this connection reference may be made to Section 163 of the Evidence Act which says:
'When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.'
Under this provisions a party is bound to give the opponent's documents as evidence in the case of three conditions are fulfilled. The first condition is that the document should be required by that party to be produced in evidence. The second condition is that it should be inspected by the party. The third condition is that the party producing the document should require the party calling for it to put it in evidence. In the instant case, only the first of these conditions has been satisfied but she other two have not been satisfied. That being the position, the account-books cannot be treated as the plaintiff's evidence in the case. It would therefore follow that it could not be inferred from the unproved account-books that the partnership stood dissolved on 28-10-1943.
9. No doubt the order of the Income-tax Officer on which reliance is placed does mention the fact that the partnership was dissolved int he Diwali of 1943, but that order cannot be treated as evidence in proof of this fact. What was required to be produced was a copy of the application bearing the signature of the plaintiff stating the fact that the partnership was dissolve din the Diwali of 1943. While such application can be used as evidence against the plaintiff the order passed on that application cannot be so used. In these circumstances, I must hold t hat there is no material on the basis of which it could be held that the partnership was dissolved on 28-10-1943 and the plaintiff's suit could be treated as barred by time. The proper course, in may opinion, would be to set aside the decrees of both the Courts below and remit the case of the trial Court for affording the parties opportunity to adduce such furtherevidence as they wish to on the pleas t hey have advanced. Now that the account-books are there it will be open to the plaintiff, if he so chooses to inspect them. But before he inspects those account-books, it will be necessary for the Court to require the defendants to file translations or transliterations of the account-books so that it will be possible for the plaintiff to inspect the account-books. If the defendants fail, within the time given by the Court, to file translations or transliterations of those account-books their defence will be liable to be struck out.
10. Accordingly, I allow the appeal, set aside the decrees of the two Courts below and remit the suit to the trial Court for being dealt with further on merits with advertence to the above remarks.
11. Costs so far incurred will abide the event.
12. Appeal allowed.
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