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1969 (7) TMI 115

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..... t 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 were 8 annas and 2 annas in a rupee respectively The partnership firm thereafter carried on the business for some years. On Magh 4, 2004 Bikrami, Krishan Dayal plaintiff filed suit for dissolution of partnership and rendition of accounts against Chandu Ram and Munshi Ram. A preliminary decree for dissolution of partnership and rendition of accounts was awarded in that suit on March 28, 1951. The decree was affirmed on appeal by the District Judge and the Judicial Commissioner. Shri R. C. Sawhaney 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 defenda .....

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..... he plaintiff- appellant has challenged the findings of the Courts below on the point that the material account books were with the plaintiff and he failed to produce the same. It is urged that finding of the Courts below in this respect is based inter alias upon the statement of Baj Ram (DW2) who was produced before 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 three years of the partnership business were in the possession of the plaintiff while the books for the Sambats 2003 and 2004 were in possession of defendant No. 1. Baj Ram was thereafter examined on September 18, 1957 as D.W. 2. Baj Ram could not be subjected to cross-examination as he died after he was examined-in-chief on September 18, 1957. The question as to whether the statemen .....

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..... swami 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, though in some cases the court may act upon it, if there is other evidence on record, its probative value may be very small and may even be disregarded. (7) On the facts of the case no weight was attached to the evidence of the witness. In Mt. Horil Kuer and another v. Rajab All and others, reliance was placed upon the observations in the cases of Maharaja of Kolhapur v. S. Sundaram Ayyar and others, and Mongol Sen v. Emperor, and it was held, while dealing with the deposition of the witness who 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 .....

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..... ciple requires in strictness nothing less. But the true solution would be to avoid any inflexible rule, and 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 consideration and am of the view that the statement of a witness in examination-in-chief, which was admissible at the time it was recorded, cannot become inadmissible by reason of the subsequent death of the witness before cross-examination. The absence of cross-examination would undoubtedly affect the value and weight to be attached to the statement of the witness, but it would not render the statement inadmissible or result in its effacement. So far as the question is concerned as to what weight should be attached to such statement made in examination-in-chief the Court has to keep in view the f .....

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..... e work and that an attempt was made to get his name deleted from the contract. The control of the partnership business appeared to have been taken over by the defendants in 2004 Bikrami. They had taken the resin extraction contract for that year in their own names and the name of the plaintiff was omitted. The circumstances, narrated above, go considerably to support the statement of Baj Ram (DW2) that the account books for the years 2000, 2001 and 2002 Bikrami were in possession of the plaintiff. 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 that according to illustration (g) under section 114 of the Evidence Act, the evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it. Th .....

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