Krishan Dayal vs Amar Nath and Others

H.S. Thakur, J.—The Appellant has filed this Letters Patent Appeal against the judgment and decree, dated 8th July, 1969, p by a learned single Judge of Delhi High Court (Himachal Bench).

The brief facts of the case are that during 1999 Bikrami, Krishan Dayal Appellant-Plaintiff, Chandu Ram Defendant No. 1 and Munshi Ram Defendant No. 2,entered into a partner ship for extraction and sale of resin in the then Princely Mandi State. A deed of partnership was executed in that connection which is marked as Ex. PA. According to the terms of the partnership deed, the Plaintiff was to invest the entire amount for the business of the partnership and was entitled to receive interest at the rate of Re. 1/- 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. During the year 2004 Bikrami the Plaintiff filed a suit for dissolution of partnership and rendition of accounts against Chandu Ram and Munshi Ram Defendants. A preliminary decree for dissolution of partnership and rendition of accounts was passed in that suit on March 28, 1951. The preliminary decree was affirmed on appeal by the District Judge and the learned Judicial Commissioner, Himachal Pradesh. Shri R. C. Sawhney, Advocate, was appointed Local Commissioner to go into accounts in pursuance of the preliminary decree. The Local Commissioner submitted a report dated April 6, 1958, to the effect that the Plaintiff was entitled to recover Rs. 24,374/1/3 from Defendant No. 1 and Rs. 3,115/15/6 from Defendant No. 2. A total sum of Rs. 27,526/- was thus found to be due from the two Defendants to the Plaintiff. Objections were preferred by the Plaintiff as well as by the Defendants to the report of the Local Commissioner. The trial court after considering the evidence and the report of the Local Commissioner, set aside the same. Instead of appointing another Commissioner for going into the accounts, the learned trial court made an attempt to go into the accounts. The conclusion, however, arrived at by the trial court was that it was not possible to go into the accounts of partner ship as both the parties were withholding important and material account books. Consequently the trial court raising a presumption against the Plaintiff under Clause (g) of Section 114 of the Evidence Act, on account of the non-production of account books which were in his possession, dismissed the suit. The Plaintiff thereafter went up in appeal to the Court of the District Judge, and the learned District Judge found that the Local Commissioner who had gone into the accounts had committed serious errors. The learned District Judge agreed with the trial court that there were sufficient grounds for setting aside the report of the Local Commissioner. The learned District Judge also agreed with the trial court that the Plaintiff had failed to produce material account books which were in his possession. As such the Plaintiff was held not entitled to claim rendition of accounts. It was brought to the notice of the learned District Judge that Rs. 16,000/ had been deposited by Munshi Ram Defendant in that court when resin belonging to the partnership was released in his favour. The said resin was thereafter sold by Munshi Ram Defendant. In the view of the learned District Judge, the parties were held entitled to the amount of Rs. 16,000/- in accordance with their shares in the partnership. The Plaintiff was, accordingly, held entitled to get Rs. 6,000/- out of Rs. 16,000/-, while the legal representatives of Chandu Ram Defendant were held entitled to receive Rs. 8,000/-, and Munshi Ram Defendant No. 2 was held entitled to receive the balance amount of Rs. 2,000/-. The Plaintiff preferred a second appeal in the High Court of Delhi (Himachal Bench) and challenged the findings of the courts below. The learned single Judge of the Delhi High Court (Himachal Bench), after considering the contentions raised on behalf of the Plaintiff and after examining the legal position, dismissed the appeal but left the parties to bear their own costs.

The learned Counsel for the Appellant-Plaintiff has challenged the judgment and decree passed by the learned single Judge mainly on three grounds. The first contention raised by the learned Counsel for the Appellant is that the suit could not be dismissed when a preliminary decree had been passed by the trial court. Secondly, it is contended by the learned Counsel that the statement of Baj Ram (D.W. 2) recorded by the Commissioner was not at all admissible in evidence as he could not be cross-examined by the Appellant-Plaintiff due to the death of this witness. The third contention raised by the learned Counsel for the Appellant is that no adverse ii could be drawn against the Appellant for non-production of documents as the same were not in his possession.

Dealing with the first contention on behalf of the Appellant that after a preliminary, decree was passed for rendition of accounts the courts had no power to dismiss the suit, the learned Counsel has referred to some decisions in this behalf. The learned Counsel has mainly relied upon the judgment of Privy Council in Lachmi Narayan Marwary and Ors. v. Balmukund Marwary and Anr. reported in AIR 1924 PC 198. We have considered this decision of the Privy Council. In this case, it was in a suit for partition that on the basis of the statements of the parties a consent preliminary decree was passed. When the proceeding for implementing such a preliminary decree were taken, the Plaintiff did not appear in the court and the suit was dismissed for want of the prosecution. No steps were taken on behalf of the Plaintiff to set aside dismissal of suit for default of appearance. The aggrieved party approached the High Court, and the High Court in exercise of its powers u/s 115 of the CPC set aside the order of the trial court and ordered the case to be restored. On appeal to it, their Lord- ships of the Privy Council in the face of facts and circumstances of the case, observed as follows:

"After a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have on the making of the decree acquired rights or incurred liabilities which are fixed unless or until the decree is varied or set aside. After a decree any party can (as already stated) apply to have it enforced.

The facts of this case were manifestly different and therefore this decision does not much help the Appellant, in the case before us, the accounts had to be gone into and no settlement of accounts could take place without going into the record. It has been observed by the trial court as also by the learned District Judge that both the parties are withholding production of the books of accounts. This finding of the courts below has been upheld by the learned single Judge.

The learned Counsel for the Appellant has also referred to a case Chimakurihi Seethaiah Vs. Burra Venkata Reddi, In this decision also the learned Judge has simply referred to the aforesaid decision of the Privy Council, and has held that after a preliminary decree for accounts is passed it is not competent for the court to dismiss suit subsequently. It may be pointed out that in this case also, the Plaintiff had absented and the suit was dismissed for default. A decision in case Kambala Sundararajamma v. P. S. Ramulu Chetty and Ors. ( AIR 1932 Mad. 519 ) has also been referred to in the aforesaid case reported in Kambala Sundararajamma Vs. P.S. Ramulu Chetty and Others, , which itself is based on the aforesaid Privy Council decision. In this case also, a preliminary decree in a partition suit had been passed and it was observed that the preliminary decree can only be reversed on appeal and whatever default there may be in the subsequent stages of the suit that preliminary decree itself cannot be affected. The preliminary decree was passed in this case on the footing of a family arrangement admitted by all the parties. In the face of those admitted facts it was observed by the court that in such cases resjudicata by reason of a prior decision extends not merely to the actual decision or finding in the case but to the common basis or facts accepted by both parties which are incorporated and made the foundation of the judgment and decree in the case. Moreover, the trial court after the preliminary decree was passed had dismissed the suit for default of taking further steps therein. As such tile facts of this case are different to the case in hand. If the Plaintiff; in the present case, withheld the production of relevant documents on tile basis of which the preleminary decree could be implemented it is not under stood how an effective and final decree could be passed in tile suit. Accordingly the learned single Judge has rightly observed that Illustration (g) u/s 114 of tile Evidence Act applied to the facts of the present case. Tile learned single Judge in this context has rightly referred to the decisions in Atyam Veerraju and Others Vs. Pechetti Venkanna and Others, and Union of India (UOI) Vs. Mahadeolal Prabhudayal, . Similarly the learned single Judge has rightly placed reliance on a Division Bench decision of calcutta High Court in case Debendra Narayan Singh v. Narendra Narayan Singh and Ors. ( AIR 1920 Cal 428). The learned Counsel for the Respondent has rightly relied upon the aforesaid decisions. Lastly, it was urged on behalf of the Appellant that the case of Dipchand Golomal v. Kishnibai and Ors. (AIR 1928 Sind 133) fully applied to the facts of the present case. We have perused the facts of this case. In that case it was held that if a partner has books of accounts in his possession and would not produce them, an account may nevertheless be arrived at by presuming every thing against him. It may, however, be pointed out that these observations were made in the context of Defendant withholding the material account-books. In the present case, it is the Appellant- Plaintiff who is withholding the material account-books. As the only party which expressed keenness for rendition of the accounts of the partnership was the Appellant-Plaintiff and as he withheld material account-books, the accounts could not be gone into because of his default. At the same time, the Defendants in the present case also do not want the accounts to be gone into. For the aforesaid observations, we are inclined to hold that the decision reported in AIR 1920 Cal 428 (supra) fully applies to the facts of the present case. Accordingly we find no force in the first contention raised by the learned Counsel for the Appellant.

Coming to the second contention raised by the learned Counsel for the Appellant that the statement of Baj Ram (D.W. 2) was not at all admissible in evidence, we are not inclined to agree with the learned Counsel. It has been observed by the learned single Judge that it is an admitted case of the parties that Baj Ram used to maintain the accounts of the partnership business. The question as to whether the statement of a Witness is admissible and if So, what weight should be attached to that statement in case the Witness dies before his cross-examination, has been the subject matter of a number of decisions. It has been further observed by the learned single Judge that 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 in Mangal Sen v. Emperor (AIR 1929 Lahore 840)a witness who had been examined by the prosecution buthad not been cross- examined was found to be too ill to attend the court, and it was held that such evidence was admissible but the weight to be attached to it depended upon the circumstances of each case. Similarly in Diwan Singh and Ors. v. Emperor (AIR 1933 Lahore 561) a witness after being subjected to cross-examination for sometime was not available. Question was mooted in the High Court as to whether the statement of the Witness was admissible. It was 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. Again, in the case of Maharaja of Kolhapur v. S. Sunderam Ayyar and Ors. (AIR 1925 Mad. 497 ) a question arose about the admissibility of the statement of a witness who had been examined-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. It was also observed that 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. In Mt. Horil Kuer and Another Vs. Rajab Ali and Others, reliance was placed upon the observations made in the aforesaid Madras case and it was held that, while dealing with the deposition of a witness who had been examined-in-chief but had not been cross-examined, the weight to be attached to the evidence depended 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. Similarly a Division Bench of the Allahabad High Court in Alimad Ali v. Joti Parsad ( AIR 1944 All 188)held that in tile event of the death or serious illness of a witness between his examination-in-chief and his cross-examination, tile evidence previously given by him is admissible, though the degree of wight to be attached to it is of course a question of fact.

The learned Counsel for the Appellant has drawn our attention to the case of Narsingh Das Vs. 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 is Sundara Rajali Vs. Gopala Thevan and Another, wherein a learned single Judge held that a deposition on which there was no opportunity at all to cross-examine is not admissible in evidence. The learned Counsel has further referred to tile case of AIR 1930 79 (Privy Council) wherein it was held that the true reading of Section 33 is that the party had both the right and the opportunity of cross-examining. Mere opportunity to cross-examine is not sufficient. There must also be tile right to do so. Section 33 of the Evidence Act deals with the relevancy of evidence for proving, in subsequent proceedings, the truth of facts stated therein provided that the adverse party in the first proceeding had the right and opportunity to cross-examine that witness.

Certain contingencies may arise in respect of the cross-examination of a witness. Occasion may arise when a witness has been examined-in-chief but cannot be cross-examined at all due to his death, illness etc. The contingency may also arise when a witness is examined-in-chief but has been partly cross- examined. Similarly occasion may arise w1 a witness after having been examined in-chief has been cross-examined on material facts relevant to a case but not in respect of other matters. The sole question, however, which arises for consideration is whether the testimony of a witness who has not been cross- examined at al], or has been partly cross-examined, or has been cross-examined on material facts, has to be considered entirely non-existent in the eyes of law or any weightage at all can be attached to the statement of such a witness. We have given our best consideration to the proposition and we fully subscribe to the view taken by the learned single Judge who has observed as follows:

"I have given the matter my consideration and am of the view that tile 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 facts and circum stances 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 the fact that the witness has not been subjected to cross-examination. The Court should see whether there are indications on the record that as a result of cross-examination his testimony was likely to be seriously shaken or his good faith or credit to be not to'' act upon such testimony unless it is materially corroborated or is supported by the surrounding circumstances. If after applying that rule of caution, the court decides to rely upon the statement of witness who was examined- in-chief, but who died before cross-examination, the decision of the court in this respect would not suffer for any infirmity.

It may further be pointed out that Baj Ram (D.W. 2) was also examined as a witness as D.W. 1 of 21st of December, 1948, as is indicated on the file of the trial court at page 60. It is further shown that this witness was also cross-examined on behalf of the Appellant-Plaintiff. In that statement it has been stated by this witness that he was in the service of the parties and was acting as agent. It is further stated by him that he was maintaining the accounts. The witness was subjected to a lengthy cross- examination. As such the statement of this witness so recorded is otherwise also admissible u/s 33 of the Evidence Act. For this reason also, the statement of this witness can be taken into consideration.

The last contention of the learned Counsel for the Appellant is that adverse inference against the Appellant-Plaintiff u/s 114 of the Evidence Act could not be drawn for non-production of material documents. Once we have come to the conclusion that material documents were also withheld by the Appellant-Plaintiff we have no escape from the conclusion that adverse inference has to be drawn against the Plaintiff- Appellant, and we fully endorse the view taken by the learned single Judge.

At the end, it was contended by the learned Counsel for the Appellant that at any rate a sum of Rs. 16,000/- which was deposited as the price of resin be ordered to be paid to him in lull. We are not inclined to accept this prayer of the Appellant. The parties to the suit have been rightly held to be entitled to partition this amount in accordance with their respective shares in the partnership. As such we uphold the decision of the learned single Judge who affirmed the view of the learned District Judge that the Plaintiff-Appellant was entitled to get Rs. 6,000/- out of Rs. 16,000/-, while the legal representatives of Chandu Ram Defendant No. 1 were entitled to receive Rs. 8,000/- and Munshi Farm Defendant No. 2 was entitled to receive the balance of Rs. 2,000/-.

For the aforesaid reasons, the appeal fails and is dismissed. In the circumstances, however, we 1ea the parties to bear their own costs.

H. R. Khanna, J.

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 No. 2 had been dismissed. As a result of the appeal, the Plaintiff has been held entitled to receive Rs. 6,000/- out of Rs. 16,000/- deposited in Court.

The brief facts of the case are that on Phalgun 25, 1999 Bikrami, Krishan Dayal Plaintiff, Chandu Ram Defendant No. 1 and Munshi Ram Defendant No. 2 entered into a partner ship for extraction and sale of resin in Mandi State. A deed of partnership Exhibit P.A. was executed in that connection. According to the terms of the partner ship deed the Plaintiff was to invest the entire amount for the business of the partnership and was to get interest at the rate of Re. 1/- 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 ma rupee, while the shares of Chandu Ram and Munshi Ram Defendants were 8 annas and 2 annas in a rupee respectively. The partner ship 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 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. Sawhney 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 Rs. 24,374/1/3 from Defendant No. 1 and Rs. 3,151/15/6 from Defendant No. 2. Rs. 27,526/-/9 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 retort of the Local Commissioner. The trial Court set aside the said report. Instead of appointing another Commissioner for going into the accounts, the learned trial Judge made an attempt to go into the accounts. The conclusion reached by him was that it was not possible to go into the accounts of partnership as both the parties were withholding important and material account books. The trial Judge thereupon raised a presumption against the Plaintiff under Clause (g) of Section 114 of the Evidence Act on account of non-production of tile account books which were in his possession, and dismissed the suit.

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 whether the Plaintiff had withheld material account books. The learned Judge agreed in this respect also with the trial Court and came to the conclusion that the Plaintiff had failed to produce material account books which were in his possession. As such, the Plaintiff was held not entitled to claim rendition of accounts. Reliance in this connection was placed upon the case of Debendra Narayan Singh v. Narendra Narayan Singh and Ors. AIR 1920 Cal 428. It was then brought to tile notice of the learned District Judge that Rs. 16,000/- had been deposited by Munshi Ram Defendant in Court when resin belonging to the partnership was released in his favour. The said resin was thereafter sold by Munshi Ram Defendant. In tile view of the District Judge the parties were entitled to the amount of Rs. 16,000/- in accordance with their shares in partnership. The Plaintiff was, accordingly, held entitled to get Rs. 6,000/- out of Rs. 16,000/-, while the legal representatives of Chandu Ram Defendant were held entitled to receive Rs. 8,000/-. Munshi Ram Defendant No. 2 was held entitled to receive the balance of Rs. 2,000/-.

In second appeal Mr. Malhotra on behalf of the 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 the finding of the Courts below in this respect is based inter alia upon the statement of Baj Ram (D.W. 2) 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, I3aj Ram stated that books for the first three years of the partner ship business were in the possession of tile p1aintiff the books for the Sambats 2002 and 2003 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 o September 18, 1957.

The question as to whether the statement of a witness is admissible, and, if so, what weight should be attached to that statement in case the witness dies 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 AIR 1929 Lahore 840, a witness, who had been examined by the prosecution but had not been cross-examined, was found to be too ill to attend the Court. The result was that he was never subjected to c Argument was advanced that the statement of the witness being incomplete his evidence could not be considered. It was held that such evidence was admissible but the weight to be attached to it depended upon the circumstances of each case. In Diwan Singh and Ors. v. Emperor AIR 1933 Lahore 561, a Witness, after being subjected to cross-examination for sometime, was not available. Question was mooted in the High Court as to whether the statement 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 other causes (mentioned in Section 33, Evidence Act) from finishing his testimony, whether viva voca or by deposition, it ought not to be rejected entirely, but submitted to the jury, with such observations as the particular circumstances may require. But if not so far advanced as to be substantially complete, it must be rejected.

In the case of Maharaja of Kolhapur v. S. Sundaram Ayyar and Ors. AIR 1925 Mad 497, question arose about the admissibility of the statement of a witness who had been examined-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, 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.

On the facts of the case no weight was attached to the evidence of the witness. In Mt. Horil Kuer and Another Vs. Rajab Ali and Others, reliance was placed upon the observations in the cases of Maharaja of Kolhapur v. S. Sundaram Ayyar and Ors. and Mangal Sen v. Emperor, and it was held, while dealing with the deposition of a witness who had been examined-in-chief but had not been cross-examined:

"The weight to be attac1 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 tile 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 evidence was not entitled to weight.

The matter came up before a Division Bench of Allahabad High Court (Allsop and Mathur, JJ.) in Ahmed Ali v. Joti Prasad AIR 1944 All 188. In that case the Plaintiff produced a witness named Wazir Singh who had been employed by them to give evidence about some material facts. The witness died before he could be cross-examined and it was urged on behalf of the Defendant-Appellant that his evidence was not admissible. The learned Judges held that the statement of Wazir Singh was admissible. Reliance in this connection was placed upon the following observations in the Taylor''s LAW OF EVINDEVCE:

"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.

Reliance was also placed upon the Phipson''s LAW OF EVIDENCE, and it was observed:

"The evidence of Wazir Singh was certainly admissible at the time he gave it and as I have said there is no provision in the Evidence Act that the evidence of a witness which is admissible at the time when he is examined should afterwards become inadmissible if it is not possible to cross-examine him.

As against the above authorities, Mr. Malhotra has referred to the case of Narsingh Das Vs. 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 Sundara Rajali Vs. 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.

Wigmore has laid down the following principle in dealing with the statement of a witness who dies before his cross-examination:

"But, where the death or illness prevents cross-examination under such circumstances that no responsibility of any sort can be attributed to either the witness or Lis party, it seems a harsh measure to strike out all that has been obtained on the direct examination. Principle 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, hut unfinished, suffices if its purposes have been substantially accomplished." (See page 765 of Woodroffe and Ameer Ali''s LAW OF EVIDENCE, 11th Edition).

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 tile 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 tile 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 facts and circumstances of each individual case. Some of the factors which may he borne in mind are the nature of tile 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 the fact that the witness has not been subjected to cross-examination. The Court should see whether there are indications on the record that as a result of cross-examination his testimony was likely to be seriously shaken or his good faith or credit to be successfully impeached. The Court may also adopt a rule not to act upon such testimony unless it is materially corroborated or is supported by the surrounding circumstances. If after applying that rule of caution, the Court decides to rely upon 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.

In tile 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 tile Plaintiff and of the remaining two years with Defendant No. 1. Baj Ram had apparently no animus against any of the parties and his statement shows that he did not want to favour any party. The learned District Judge has found that there are other material circumstances which go to show that the statement of Baj Ram in this respect is correct. It was observed:

"The Plaintiff had invested a big amount in the partnership business. In the natural course of things, he was expected to maintain a close watch over the business of partnership and its accounts. The account-books, flied on the record, show that the Plaintiff had been taking active interest in the business of partner ship 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 (P W. 6) and Ram Dass (P.W. 7) and the documentary evidence on record, that Chandu Ram Defendant had abandoned the work and that an attempt was made to get his name deleted from the contract. The control of the partner ship 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 (D.W. 2) 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 wilfully withheld material account-books.

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) u/s 114 of the Evidence Act, the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The principle underlying the above illustration has been applied by their Lordships of the Supreme Court in cases wherein a party in possession of material document docs not produce the same. it has accordingly been held that the non-production of a material document by a party to a case could make the Court draw an inference against that party. (See in this connection Atyam Veerraju and Others Vs. Pechetti Venkanna and Others, and Union of India (UOI) Vs. Mahadeolal Prabhudayal, The principle underlying illustration (g) u/s 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 Singh and Ors. AIR 1920 Cal 428, held:

"In a suit for accounts, the non-production of account books by the party who has custody of them justifies the presumption u/s 114(g), Evidence Act, that they have been withheld, because if produced, they would have been unfavourable to his case. If he is the Plaintiff and is claiming accounts though withholding papers, his suit is liable to be dismissed: Upendra Kishore v. Ram Tara (1909) 4 IC 542, Chand Ram v. Brojo Gobind Doss (1873) 19 WR 14. If lie is the Defendant who is liable to render accounts, the Court will proceed on the footing of evidence furnished by the Plaintiff and in doing so, may make all reason able presumptions against him; see the observations of Phear, J., in Syud Shah Aliahmad v. Bibee Nusibun (1875) 24 W.R. 70, quoted with approval by Field, J., in Annoda Persad v. Dwarkanath (1881) 6 Cal 754.

The above dictum fully applies to the facts of the present case and in the circumstances I am of the view that the Courts below were justified in holding that the Plaintiff was not entitled to claim rendition of accounts. Mr. Malhotra has referred to the observations in the case of Dipchand Golomal v. Kishnibai and Ors. AIR 1928 Sind 133. In chat case it was held that if a partner has books of accounts in his possession and would not produce them, an account may nevertheless be arrived at by presuming everything against him. Those observations were made in the context of a Defendant withholding the material account books. In the present case, however, it is the Plaintiff who is withholding the material account books. It is also significant that the Defendants in the present case do not want that the accounts be gone into inspite of the non-production of the material account books by Plaintiff. As the only party, who expressed keenness for rendition of the accounts of the partnership, was the Plaintiff and as he withheld material account books, the courts below, in my opinion, rightly held that the accounts could not be gone into because of the default of the Plaintiff-Appellant.

The appeal consequently fails and is dismissed, but, in the circumstances, I leave the parties to bear their own costs.