GULZAR HUSSAIN AWAN Versus AKBAR

The plaintiff has filed this Suit for accounts and allied reliefs, stating that they had entered into a partnership on 15‑2‑1979 for a fixed period of one year commencing from 15‑2‑1979 and stood dissolved on 14‑2‑1980. On 17‑11‑1982, by consent, this Court appointed a Sole Arbitrator to decide the dispute between the parties. The Arbitrator gave his award on 21‑6‑1983 holding as under:‑‑

(1) That the plaintiff was financing partner and the defendant was working partner.

(2) The plaintiff contributed the finances and materials to carry on partnership business and the defendant utilized the same.

(3) The partnership was for a period of one year from 15‑2‑1979 to 14‑2 1980.

(4) The parties were to share the profits/losses equally.

(5) The defendant was the accounting party.

The following accounts were to be taken:‑‑

(a) An account of the credits, property and effects as on 14‑2‑1980 belonging to the partnership.

(b) An account of the debts and liabilities of the partnership as on 14‑2‑1980.

(c) An account of all dealings and transactions between the plaintiff and defendant during subsistence of the partnership.

(6) The above accounts were to be taken and all other acts required to be done were to be completed by the Commissioner for taking accounts who was to be appointed by the Hon'ble Court."

2. The defendant filed objections to the award but the said objections were dismissed on 29‑3‑1984 and the award was made rule of Court. An appeal was preferred against this order but the D.B. dismissed the same and maintained the order. In pursuance of the preliminary decree thus passed Mr. Amanullah Advocate was appointed Commissioner to take accounts. Mr. Amanullah has taken accounts and has submitted his report showing that a sum of Rs. 17,572.17 is due to the plaintiff from defendant.

3. Mr. Nasrullah Awan who appeared for the plaintiff has tiled objections to the Commissioner's report. These objections need not to be reproduced as the same are nothing but the repetition of the contentions which he had raised before the Commissioner. All these contentions were repelled by the Commissioner who has given cogent reasons for the same.

4. Mr. Nasrullah Awan contended that the Commissioner had disbelieved the oral evidence of the Plaintiff regarding payments which he ought to have believed. Similarly he has contended that the Commissioner had held that the burden of proof about creation of the funds of the partnership was on the plaintiff although the burden ought to have been placed on the defendant because according to the partnership agreement the plaintiff was the sole financing partner. It was therefore the duty of the Commissioner to call upon the defendant to prove as to from where he brought the amount with which he carried on the business of the partnership. I do not agree with this contention of Mr. Nasrullah Awan. The plaintiff has produced two cheques showing that he had paid Rs. 17,000 to the defendant. These cheques were encashed by the defendant. Besides this he had produced vouchers to evidence that he had supplied goods worth Rs. 13,939.25. He also claimed to have paid cartage. The Commissioner had accepted all these pieces of evidence and believed that the said payments were made by the plaintiff. Regarding the other payments there is only oral word of the plaintiff which is denied by the defendant. Hence it cannot be said that the Commissioner was not justified in disbelieving the same. The statement of accounts filed by defendant clearly shows that the plaintiff had invested only Rs. 17,000 in this business which also he had received back in March, 1979. It has been held by the Commissioner that there were no credits, assets, properties or debts and liabilities of the firm on 14‑2‑1980. The Advocate for the defendant therefore contended that the Commissioner ought not to have held that the plaintiff was entitled to any amount specially because the order dated 12‑9‑1983, passed by this Court (by Mr. Justice Ibadat Yar Khan) in Suit No. 1239/80, entitles the defendant to the good will and future bills.

5. The Defendant has not filed any objection to the Commissioner's report and has only filed counter‑affidavit to the objections filed by the plaintiff.

6. I am satisfied that the Commissioner has properly appreciated the evidence led before him and has come to reasonable conclusions. I therefore hold that the report submitted by him does not call for any interference.

7. I therefore approve the report of the Commissioner and direct that a final decree for a sum of Rs. 17,572.17 be passed in favour of the plaintiff. Looking to the peculiar circumstances of this case I direct that the parties should bear their own costs.

M.Y.H./G‑67/K

Suit decreed.