R.S.A. No. 1162 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1162 of 2009 (O&M) Date of decision : 24.1.2011 Satish Kumar ......Appellant Versus Parkash and others .......Respondents ***** CORAM: HON'BLE MRS. JUSTICE SABINA Present : Mr. N.C.Kinra, Advocate, for the appellant. Mr. M.L. Sarin, Senior Advocate with Mr. Kabir Sarin, Advocate, for the respondents **** SABINA, J. Plaintiff had filed a suit for dissolution of partnership firms and rendition of accounts. The case of the plaintiff, in brief, was that the plaintiff and defendants were real brothers and were running partnership business of petrol pumps and kerosene in the name and style of following firms, namely : (i)M/S Parkash Dev and Brothers, Rohtak (petrol pumps and kerosene). (ii)M/S Jadgish and Satish Brothers, Meerut (kerosene). (iii)M/S. Parmanand Nirankar Dev (kerosene) R.S.A. No. 1162 of 2009 (O&M) 2 (iv)M/S Dhingra Auto Mobiles, Transport Corporation, Kalanaur (Petrol pump). The plaintiff and defendant No.3 had 45/192 share each in the said business, whereas defendants No.1, 2 and 4 had 34/192 shares each in the said firms. Parties were members of joint Hindu family till the year 1980. They had migrated from Pakistan in the year 1950. At that time a firm titled M/s Parkash Dev and Brothers, Rohtak was established. Plaintiff and Nirankar defendant No.3 were minors at that time. In the year 1952 another firm titled M/s Jagdish and Satish was constituted by the parties which was a branch of M/s Parkash Dev and Brothers. On 14.7.1955, M/s Parkash Dev and Brothers purchased land measuring 1 bigha 9 biswas in an open auction at Rohtak. Possession of the said land was taken for construction of petrol pump etc. on 11.9.1958. On 14.5.1959 firms, namely, M/s Parkash Dev and Brothers and M/s Jagdish and Satish Brothers were reconstituted for the sake of convenience and for the benefit of income tax. M/s Jagdish and Satish Brothers, Meerut was designated as the head office and M/s Prarkash Dev and Brothers was designated as branch of M/s Jagdish and Satish Brothers. Parents of the parties retired from the partnership business on 31.3.1957. Parties had one more partnership firm titled M/s Parma Nand Nirankar Dev in the year 1964 and the said business was being run at Rohtak. In the year 1969, parties established another firm titled M/s Dhingra Automobiles transport corporation Kalanaur. Differences arose between the parties as defendants No.1,2 and 3 had made unjust claim in the court of law. Hence, the suit was filed by the plaintiff. R.S.A. No. 1162 of 2009 (O&M) 3 Defendant No.1, in his written statement, averred that the joint business in the four firms was separated in the year 1970. On 31.3.1970, Jagdish Chander, Nirankar Dev and Satish Kumar had retired from the joint business and had taken over the business of firms M/s Parma Nand Nirankar and M/s Dhingra Automobiles Transport Corporation, Kalanaur. The assessment order by the Income Tax Department was also passed in the names of two Brothers, namely, Parkash Dev and Bhim Sain, who were running the branch office M/s Jagdish and Satish Brothers, Rohtak. Parkash Dev and Bhim Sain reconstituted their two firms by joining their respective sons in the year 1972. On 1.4.1975, defendants Parkash Dev and Bhim Sain decided to retain the business of firm situated at Meerut exclusively for themselves. Parties had not remained joint up to the year 1980. Rather the parties had separated their residence and mess in the year 1958 and their business was separated on 31.3.1970. The factum of purchase of agricultural land by M/s Parkash Dev and Brothers was denied. Plaintiff and defendants Jagdish and Nirankar had no concern with the firm titled M/s Parkash Dev and Brothers and M/s Jagdish and Satish Brothers. Defendants No.2 and 3, in their written statement, averred that the parties to the suit were not partners of all the four firms. It was averred that initially the parties were running business in the name of the firms referred in para 1 of the plaint, but on 31.3.1970 joint business of the parties came to an end. Firms M/s Parkash Dev and Brothers and M/s Jagdish and Satish Brothers had fallen to the share of defendant No.1 and M/s Parma Nand Nirankar and M/s Dhingra Automobiles Transport Corporation had R.S.A. No. 1162 of 2009 (O&M) 4 come to the share of plaintiff Satish and defendants No.2 and 3. Separate partnership deeds were executed between the parties. Later on the sons of defendants No.1 and 2 were also joined as partners in the two firms, namely, M/s Parkash Dev and Brothers and M/s Jagdish and Satish Brothers. Separate partnership deeds were executed on 1.4.1972. M/s Parkash Dev Brothers came to the share of defendant No.1 and his son Naveen and M/s Jadgish and Satish Brothers came to the share of defendant No.4 and his son. On 1.4.1973 M/s Dhingra Automobiles Transport Corporation was reconstituted with partners Nirankar Dev and Kamla Rani. M/s. Parma Nand Nirankar Dev came to the share of the plaintiff and defendant Jagdish. Defendant No.4, in his written statement, denied that his Brothers were running joint business of all four firms. It was averred that in the year 1975 the business had been separated. On the pleadings of the parties, following issues were framed by the trial Court :- “1. Whether the plaintiff is entitled to a decree for dissolution of the firms M/s Parkash Dev and brothers, Rohtak M/s Parkash Dev & brothers M/s Jagdsih & Satish brother Meerut, Rohtak M/s Parma Nand, Nirankar Dev, Rohtak and M/s Dhingra Automobiles Transport Corporation, Kalanaur ? OPP. 2. Whether the plaintiff is entitled to firms doing after taking amount ? OPP 3. Whether the suit is not maintainable ? OPD. 4. Whether the plaintiff is estopped to file the suit by his own act and conduct ? OPD. R.S.A. No. 1162 of 2009 (O&M) 5 5. Whether the suit is time barred ? OPD. 6. Relief.” Vide judgment and decree dated 19.4.2007 Civil Judge (Junior Division) Rohtak partly decreed the suit of the plaintiff and held that plaintiff was proved to be partner of firm, namely, M/s Parma Nand Nirankar Dev with defendant No.2 and was entitled to seek dissolution of the same and rendition of accounts qua the same from defendant No.2. Aggrieved by the same plaintiff preferred an appeal and the same was dismissed by Additional District Judge, Rohtak vide judgment and decree dated 14.11.2008. Hence, the present appeal by the plaintiff. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. In the present case, the relationship between the parties is not in dispute. The parties in support of their case had led oral as well documentary evidence. Preference is to be given to the documentary evidence available on record. The case of the plaintiff is that he was partner of four firms as mentioned in the plaint whereas the case of the defendants was that the plaintiff was no longer partner of all the four firms, mentioned in the plaint. The Courts below relying upon the documentary evidence, available on record, have given a finding of fact that the plaintiff was only partner of firm M/s Parma Nand Nirankar Dev alongwith defendant No.2. Plaintiff was unable to prove by leading documentary evidence that he was partner of other firms also. The argument raised by the learned counsel for R.S.A. No. 1162 of 2009 (O&M) 6 the appellant that the reconstitution of the firms was merely done to avoid income tax fails to advance the case of the appellant-plaintiff. The argument raised by the learned counsel for the appellant cannot legally enforced. Thus, admittedly, the other firms except M/s Parma Nand Nirankar Dev had been reconstituted. As per the documents, available on record, noticed by the Courts below plaintiff had left the firm M/s Jadgish and Satish Brothers and M/s Parkash Dev and Brothers. M/s Dhingra Automobiles Transport Corporation was also reconstituted and the partners of the said firm were Nirankar Dev and Kanta Rani. In these circumstances, the Courts below have rightly decreed the suit of the plaintiff only qua M/s Parma Nand Nirankar Dev and have rightly dismissed the claim of the plaintiff qua other firms as the plaintiff was not a partner of the said firms. No substantial question of law arises in this case which would warrant interference by this Court. Dismissed. (SABINA) JUDGE January 24, 2011 Anand