Surinder Pal vs Ved Parkash and Others

L.N. Mittal, J.—Surinder Pal-Plaintiff having failed in both the courts below has filed the instant second appeal.

Appellant filed suit against Defendant Charnu Ram (since deceased and represented by Respondents as his legal representatives). The Plaintiff alleged that parties entered into partnership vide partnership deed dated 16.04.1988 to run business in the name of partnership firm M/s Surindera Paint Store in shop No. 77, Rose Garden Market, Patiala. Share of Plaintiff was 90% and share of Defendant was 10%. The Plaintiff accordingly invested 90% of the amount in the business. However soon after the partnership was entered into, the Plaintiff joined government service and, therefore, the Plaintiff appointed his father Shiv Lal as general attorney to manage the business on behalf of the Plaintiff. The Defendant has been maintaining the account books of the business. However, he has refused to rendered accounts of the business. On the other hand, Defendant along with his sons and brother-in-law Balkrishan forcibly took possession of the partnership premises and the goods and forcibly removed the Plaintiff''s father from there and has himself misappropriated the goods of the business. The Plaintiff accordingly sought dissolution of partnership and rendition of the accounts thereof.

Defendant contested the suit and inter alia pleaded that both the parties entered into partnership, but immediately thereafter, the Plaintiff joined government job and he refused to run the business. Accordingly, the partnership was automatically dissolved. The Defendant alone has been running business since inception. The Defendant never came in possession of the business premises and the question of taking the same forcibly by the Defendant did not arise. Appointment of Plaintiff''s father as attorney of the Plaintiff to run the business on his behalf was denied. The other plaint allegations were also broadly denied. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Patiala vide judgment and decree dated 28.10.2005 dismissed the suit. First appeal preferred by the Plaintiff has been dismissed by learned Additional District Judge, Patiala vide judgment and decree dated 19.08.2009. Feeling aggrieved, Plaintiff has filed the instant second appeal.

I have heard learned Counsel for the Appellant and perused the case file.

Learned Counsel for the Appellant vehemently contended that partnership deed has been admitted and the parties were running business in partnership but the Defendant has forcibly taken over the same and refused to render the accounts. The contention cannot be accepted. There is no cogent evidence on record led by the Plaintiff to depict that the partnership business was ever started by the parties. On the contrary, power of attorney Exhibit P-2 allegedly executed by Plaintiff in favour of his father reveals that the Plaintiff joined government service on 17.05.1988. Partnership deed is dated It is thus manifest that the Plaintiff got government job soon after the partnership deed was entered into and, therefore, the partnership business was never commenced.

It is significant to notice that the general power of attorney is dated 10.05.1988 but it has been mentioned therein that the Plaintiff had joined government job on 17.05.1988. Thus the power of attorney has been ante dated. Moreover the power of attorney purports to have been attested on 15.11.1988. The power of attorney is thus highly suspicious. According to power of attorney Exhibit P-2, accounts of the business were to be maintained by Plaintiff''s father either himself or with the help of the Defendant. However nevertheless the fact remains that the accounts were to be maintained by the Plaintiff''s father and not by the Defendant. Consequently, the question of rendition of accounts by the Defendant does not arise. Partnership deed Exhibit P-1 also reveals that even Bank account of the partnership firm was to be operated by the Plaintiff and not by the Defendant. Consequently, for this reason also, Plaintiff cannot seek rendition of accounts from the Defendant.

The Plaintiff was in government service and was also out of Patiala as mentioned in the power of attorney itself. In these circumstances, Plaintiff''s father Shiv Lal, who was allegedly managing the business on behalf of the Plaintiff as his attorney, was the most important material witness. However Plaintiff''s father has not been examined as witness. Consequently, strong adverse presumption arises against the Plaintiff.

There is concurrent finding by both the lower courts against the Plaintiff-Appellant. The said finding does not warrant interference in second appeal as it is not shown to be perverse or illegal in any manner nor it is based on misreading or mis-appreciation of evidence. On the contrary, the said finding is fully justified by the evidence on record. It may also be added that according to partnership deed Exhibit P-1, the shop belonging to the Municipality had been allotted to the Defendant. Thus the Plaintiff was also not entitled to possession of the premises and was in fact never in possession of the premises.

As a necessary upshot of the aforesaid discussion, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is accordingly dismissed in limine.