Full Judgment
S.N. Modi, J.
1. This is a plaintiff's appeal in a suit for rendition of partnership accounts. On 31-10-68 a preliminary decree was passed in the following words:
It is declared that this partnership firm had been dissolved on 7-3-65. It is ordered that Shri Baijnath is appointed as Commissioner to take the accounts of the above business into consideration from 19-1-63 to 7-3-64 and submit his report, Further it is ordered that the Commissioner shall take the following accounts into consideration:
1. An account of the credits, property and effects now belonging to the said partnership.
2. An account of the debts and liabilities of the said partnership.
3. An account of all dealings and transactions between the plaintiff and defendant.
It is ordered that the above accounts be taken & all other acts required to be done by the Commissioner be completed within a period of one month and the Commissioner shall submit his report and the result of the accounts and the result of all otherlacts.
In pursuance of the above preliminary order, Shri Baijnath was asked to submit the report but he failed to do so. Subsequently he resigned and Shri Ratanlal Patwa was appointed Commissioner is his place. The Commissioner served notices on the learned Counsel for the parties to submit partnership account books but none of the parties cared to submit the partnership accounts books. Ultimately, Shri Ratanlal Patwa submitted his report on 25-7-70 mentioning therein that the parties have failed to submit partnership account books in spite of service of notice. The court on receipt of the said report directed the parties to file objections. After several adjournments, the learned Counsel for the plaintiff submitted two applications on 7-8-71. In the first application it was requested that the Commissioner be directed to submit his report on the basis of the copies of the account books produced by the defendant along with the written statement. In the second application, the plaintiff submitted that the defendant himself in his written statement gave full partnership accounts and also admitted that a sun Rs. 7000/- stands credited to the plaintiff in the account books. Separate replies were filed on behalf of the defendant to the aforesaid two application filed by the plaintiff.' The significant point to be noted is that the defendant did not deny that Rs. 7000/- did not stand credited to the plaintiff as mentioned in his own written statement. The learned Additional District Judge dismissed both these applications and ultimately dismissed the suit. Aggrieved by the said judgment and decree, the plaintiff has come up in appeal.
2. I have heard learned Counsel for the parties and carefully gone through the record of the case. From the pleadings, it is abundantly clear that the account books was to be maintained by the defendant who was in-charge of the partnersnip business. The defendant in his written statement admitted that he possessed with him kacha account books and further that pucca account books were with one Vijayraj who was said to be the agent of the plaintiff. The defendant also in his written statement admitted that in the partnership business there was a loss to the tune of Rs. 4600/- & that the plaintiff deposited as capital Rs. 10,000/-.The defendant further admitted that a sum of Rs. 7000/- stands credited in favour of the plaintiff in the partnership account books. Along with the written statement he also submitted copies of various khatas relating to the partnership business. In view of the above facts, it prima facie appears that the defendant was the accounting party and he also possessed with him at least kacha account books. Admittedly, the plaintiff had no account books with him had during the relevant period he was studying in Bomby and the partnership business was being carried on by the defendant. Having regard to all the circumstances, I consider it proper in the interest of justice that the parties should be given one more opportunity to produce whatever books of account they possess with them. I do realise that the plaintiff in this case has been sufficiently negligent in not taking proper steps in the case but I think the defendant can be compensated by awarding suitable amount as costs from the plaintiff.
3. I therefore allow this appeal, set aside the decree passed by the court below and remand the case back to the trial court for fresh decision in accordance with law after giving one more opportunity to the parties to produce partnership account books possessed by them. The parties are directed to appear before the trial court on 15-4-74 and to submit the partnership account books on or before the said date. The plaintiff is directed to pay Rs. 200/- as costs to the counsel for the defendant before 15th April, 1974 failing which this appeal shall be deemed to have been dismissed with costs. The costs of this appeal shall abide the final result.