ISLAM-UD-DIN Versus ALLAH RAKHA SAJID

ORDER

1. JAVID IQBAL, J.‑‑ This petition for leave to appeal is directed against the judgment of the Lahore High Court, Lahore, dated 31st. May of 1988 whereby the regular second appeal of the respondent was accepted, the judgment and decree of the lower appellate Court were set aside and instead the preliminary decree passed by the trial. Court was restored. Furthermore, the case was remanded to the trial Court for further proceedings‑ in accordance with law.

2. Briefly the background is that a suit was filed by the respondent (Allah Rakha Sajid) claiming rendition of accounts from the petitioner (Islam‑6d‑Din). It was contended on his behalf that he had entered into a partnership with the petitioner vide an agreement, dated 1st February, 1969 to the effect that they would run a joint business in a shop allotted to the respondent, that they both would maintain accounts, that profit and loss would be determined at the end of each year, that the shop premises would not be involved for undertaking loan by any party, that the petitioner would have no title to the shop premises and that the petitioner would vacate it when the partnership was dissolved. It was further contended that the petitioner paid to the respondent a sum of money as profit per month for about four years after the agreement, and thereafter he refused to pay anything. In his suit the respondent prayed for a' decree for dissolution of partnership and relief of rendition of accounts. The trial Court relying on the written agreement decreed the suit. But on appeal the judgment and decree of the trial Court were set aside on the ground that the existence of partnership depended on the facts and circumstances of each case irrespective of the contents of a written deed showing them to be partners inter se. Thereupon, the impugned judgment of the first appellate Court was challenged by way of regular second appeal by the respondent on the ground that the learned Additional District Judge while hearing, the appeal had completely disregarded the provisions of sections 91 and 92 of the Evidence Act. It was contended that the oral evidence which in any way contradicted the terms of agreement reduced into writing establishing a relationship between the parties with each other should have not been accepted. It was further contended in R.S.A. that at A no stage the parties had denied the existence of the written agreement and that, therefore, they were bound by its contents. The learned Single Judge of the Lahore High Court, Lahore eventually arrived at the conclusion that the Additional District Judge in his judgment had not considered the application of sections 91 and 92 of the Evidence Act to the facts and circumstances of this case and had proceeded to attach significance to the oral testimony of some witnesses which under the aforesaid sections was to be excluded from consideration. According to the learned Single Judge the facts on record had proved the existence of partnership between the parties and there was nothing on the record to support the contention that the relationship between them was that of landlord and tenant.

3. We have heard learned counsel for the petitioner at some length. He has not been able to satisfactorily explain as to why the learned Additional District Judge had ignored the application of sections 91 and 92 of the Evidence Act while accepting the oral evidence which contradicted the documentary evidence in this case. In that view of the matter we find no substance in this petition which is accordingly dismissed.

4. M.B.A./I‑47/S Petition dismissed.