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Krishan Dayal Versus Chandu Ram

1969 (7) TMI 115 - DELHI HIGH COURT

Regular Second Appeal No. 28 of 1962 - Dated:- 8-7-1969 - H.R. Khanna, J. JUDGMENT H.R. Khanna, J. (1) This regular second appeal filed by Krishan Dayal plaintiff is directed against the judgment and decree of learned District Judge, Mandi and Chamba, modifying on appeal the decision of the trial Court whereby the suit of the plaintiff against Chandu Ram defendant No. 1 (who died during the pendency of the proceedings and is now represented by his legal representatives and Munshi Ram defendant N .....

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the plaintiff was to invest the entire amount for the business of the partnership and was to get interest at the rate of Re. l per cent per annum on the amount invested. The assets of the partnership were first to be applied towards payment of the amount invested by the plaintiff and the interest thereon. Out of the balance, the profits were to be distributed amongst the partners. The share of the plaintiff was fixed at 6 annas in a rupee, while the shares of Chandu Ram and Munshi Ram defendants .....

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ey Advocate was appointed Local Commissioner in pursuance of the preliminary decree to go into accounts. The Local Commissioner submitted a report dated April 6, 1958 to the effect that the plaintiff was entitled to recover ₹ 374/1/3 from defendant No. 1 and ₹ 3115/15/6 from defendant No. 2. ₹ 27,526/0 were thus found to be due from the two defendants to the plaintiff. Objections were filed by the plaintiff as well as by the defendants to the report of the Local Commissioner. T .....

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ction of the account books which were in his possession, and dismissed the suit. (4) The plaintiff then went up in appeal to the Court of District Judge, Mandi and Chamba. The learned District Judge found that the Local Commissioner, who had gone into the accounts, had committed serious errors. The District Judge, accordingly, agreed with the trial Court that there were sufficient grounds for setting aside the report of the Local Commissioner. The District Judge then went into the question as to .....

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Judge that ₹ 16,000.00 had been deposited by Munshi Ram defendant in Court when resin belonging to the partnership was released in his favor. the said resin was thereafter sold by Munshi Ram defendant. In the view of the District Judge the parties were entitled to the amount of ₹ 16,000.00 in accordance with their shares in partnership. The plaintiff was, accordingly, held entitled to get ₹ 6,000.00 out of ₹ 16,000.00 while the legal representatives of Chandu Ram defendan .....

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ore the Commissioner. Baj Ram died before he could be subjected to cross-examination. In the circumstances, according to Mr. Malhotra, the statement of Baj Ram is inadmissible in evidence. In respect of the above contention I find that it is the admitted case of the parties that Baj Ram used to maintain the accounts of the partnership business. Baj Ram was examined before the Local Commissioner on September 15, 1957. In his statement recorded on that day, Baj Ram stated that books for the first .....

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s before his cross-examination, has been the subject matter of a number of decisions. In England it has been held that where the witness dies, or falls ill, before cross-examination, his evidence-in-chief is admissible, though its weight may be light. (See in this connection page 764 of Woodroffe and Ameer Ali's Law of Evidence, 11th Edition). In Mangal Sen v. Emperor (2), a witness who had been examined by the prosecution but had not been cross-examined, was found to be too ill to attend th .....

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nt of the witness was admissible. Tek Chand, J., held that the statement of the witness was admissible though the value to be attached to it was a matter primarily for the trial Court. Reliance in this connection was placed upon the following observations in Sarkar's Law of Evidence, 5th Edition which were based upon an American case : " No general rule can be laid down in respect of unfinished testimony. If substantially complete and the witness is prevented by sickness or death or oth .....

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ined-in-chief and was asked a few questions in cross-examination. The case was then adjourned but before the cross-examination of the witness could be resumed the witness died. It was held that the evidence could not be rejected as inadmissible though it could not have much value. Kumaraswami Sastri, J. observed : " I think the correct rule is that the evidence is admissible but that the weight to be attached to such evidence should depend upon the circumstances of each case and that, thoug .....

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o had been examined-in- chief but had not been cross-examined, :- " The weight to be attached to the evidence depends on the circumstances and the Court should look at the evidence carefully to see whether there are indications that by a completed cross-examination the testimony of the witness was likely to be seriously shaken or his good faith to be successfully impeached. In the present case no circumstances have been brought to my notice which would tend to the view that Jailal's evi .....

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ngh was admissible. Reliance in this connection was placed upon the following observations in the Taylor's Law of Evidence :- " In the event of the death or serious illness of a witness between his examination in chief and his cross-examination. . . . in England both a late Master of the Rolls and a late Vice-Chancellor have in a civil case held that the evidence previously given by him is admissible, though the degree of weight to be attached to it is of course a question of fact." .....

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v. Gokul Prasad and others wherein a Division Bench held that the evidence of a witness, who died before his cross-examination, should not be admitted because the evidence had not concluded. Another case to which reference has been made on behalf of the appellant by Mr. Malhotra is Sundara Rajali v. Gopala Thevan and another, wherein a learned Single Judge of Madras High Court held that a deposition on which there was no opportunity at all to cross-examine is not admissible. (11) Wigmore has la .....

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to leave it to the trial Judge, to admit the direct examination so far as the loss of cross-examination can be shown to him to be not in that instance a. material loss. Courts differ in their treatment of this difficult situation; except that, by general concession, a cross-examination begun, but unfinished, suffices if its purposes have been substantially accomplished." (see page 765 of Woodroffe and Ameer Ali's Law of Evidence, 11th Edition.) (12) I have given the matter my considera .....

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be attached to such statement made in examination-in-chief the Court has to keep in view the facts and circumstances of each individual case. Some of the factors which may be borne in mind are the nature of the testimony, its probative value, the status of the witness, his relationship or connection with the parties to the case, a likely animus which may colour his statement and any other factor touching the credibility of the witness which may emerge on the record. Regard must also be had to t .....

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the statement of a witness who was examined in chief, but who died before cross-examination, the decision of the Court in this respect would not suffer from any infirmity. (13) In the instant appeal I find that it is the common case of the parties that Baj Ram was maintaining the books of account of the partnership. According to Baj Ram the account books of the first three years were with the plaintiff and of the remaining two years with defendant No. 1. Baj Ram had apparently no animus against .....

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how that the plaintiff had been taking active interest in the business of partnership and had been charging expenses for his visits to various places in connection with the business of the partnership. Gurbax Rai, a brother-in- law of the plaintiff, had been taking part in running the business of the partnership. It appears from the statements of Narpat Ram (Public Witness 6) and Ram Das (Public Witness 7) and the documentary evidence on record, that Chandu Ram defendant had abandoned the work a .....

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Nothing has been shown to assail the above observations of the learned District Judge. After giving the matter my earnest consideration I find no sufficient ground to interfere with the finding of the lower appellate Court that the account books for the Bikrami years 2000, 2001 and 2002 were in possession of the plaintiff and that he willfully withheld material account books. (14) Question then arises as to what is the effect of the withholding of material account books. In this respect I find .....

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raw an inference against that party, (see in this connection Atyam Veerraju and others v. Pechetti Venkanna and others and Union of India v. Mahadeolal Prabhu Dayal. The principle underlying illustration (g) under section 114 of the Evidence Act has also been applied to a suit for rendition of accounts wherein a party to the suit withholds material account books. A Division Bench of the Calcutta High Court (Mookerjee and Panton, JJ.) in the case of Debendra Narayan Singh v. Narendra Narayan Sing .....

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