JUDGMENT H. S. Thakur, J.—The appellant has filed this Letters Patent Appeal against the judgment and decree dated 8th July, 1969 passed by a learned single Judge of Delhi High Court (Himachal Bench), 2. 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 partnership 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 Rs. 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, 1^51. 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. 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 partnership 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, 16,0C0/- 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. 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. 3. The learned counsel for the appellant-plaintiff has challenged the judgment and decree parsed 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 (DW. 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 inference could be drawn against the appellant for non-production of documents as the same were not in his possession. 4. 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 Mar wary and others v. Balmakund Marwary and another, AIR 1924 Privy Council 1S8. 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 proceedings 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. When the proceedings 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 under section 115 of the Code of Civil Procedure set aside the order of the trial court and ordered the case to be restored. On appeal to it, their Lordships 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." This 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. 5. The learned counsel for the appellant has also referred to a case Chimakurihi Seethalah v. Burra Venkata Reddi, AIR 1968 Andhra Pradesh 289. 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 of default. A decision in case Kambala Sundararajamma v. P. S. Ramulu Chetty and others, (AIR 1932 Mad. 519), has also been referred to in the aforesaid case reported in AIR 1968 Andhra Pradesh 289, which itself is based on the aforesaid Privy Council decision. A decision in case Kambala Sundararajamma v. P. S. Ramulu Chetty and others, (AIR 1932 Mad. 519), has also been referred to in the aforesaid case reported in AIR 1968 Andhra Pradesh 289, 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 the 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 the basis of which the preliminary decree could be implemented it is not understood how an effective and final decree could be passed in the suit. Accordingly the learned single judge has rightly observed that Illustration (g) under section 114 of the Evidence Act applied to the facts of the present case. The learned single judge in this context has rightly referred to the decisions in Atyam Veerraju and others v. Pechetti Venkanna and others, (AIR 1966 SC 629) and Union of India v. Mohadeolal Prabhu Dayal. (AIR 1965 SC 1755). Similarly tie learned single judge lias rightly placed reliance on a Division Bench decision of Calcutta High Court in case Debendra Narayan Singh v. Narender Narayan Singh and others, (AIR 1920 Calcutta 478). The learned counsel for the respondent has rightly relied upon the aforesaid decisions. Lastly, it was urged en behalf of the appellant that the case of Dipohand Golomal v. Kishnibai and others, (AIR 1928 Sind 133), fully applied to the facts of the present case. We have perused the facts of this case. The learned counsel for the respondent has rightly relied upon the aforesaid decisions. Lastly, it was urged en behalf of the appellant that the case of Dipohand Golomal v. Kishnibai and others, (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 everything against him. It may, however, be printed cut that these observations were made in tie 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 Calcutta 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. 6. 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. 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 Mangel 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, 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 others 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. Sunder am Ayyar and others, AIR 1915 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 Smt. Horil Kuer and another v. Rajab AH and others, AIR 1936 Patna 34 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 Allahabad High Court in Ahmad Ali v. Joti Par sad, AIR 1944 Allahabad 3 88 held that in the event of the death or serious illness of a witness between his examination-in-chief and his cross-examination, 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. 7. The learned counsel for the appellant has drawn our attention to the case of Narsingh Das v. Gokul Prasad and others, AIR 1928 All. 140 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 Sundra Rajali v. Gopala Thevan and another, AIR 1934 Madras 100 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 the case of Dal Bahadur Singh and others v. Bijai Bahadur Singh and others, AIR 3 930 PC 79 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 the 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. 8. Certain contingencies may arise in respect of the cross-examination of a witness. 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. 8. Certain contingencies may arise in respect of the cross-examination of a witness. Occasion may arise when a witness has been examined- in-chin-but cannot be cross-examined at all due to his death, illness etc. The contief gency may also arise when a witness is examined-in-chief but has been partly cross-examined. Similarly occasion may arise when 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 all, 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 the 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 circumstances 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. 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 from any infirmity," It may further be pointed out that Baj Ram (D, W. 2) was also examined as a witness as D. W. 1 on 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 under section 33 of the Evidence Act. For this reason also, the statement of this witness can be taken into consideration. 9. The last contention of the learned counsel for the appellant is that adverse inference against the appellant-plaintiff under section 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. 10. 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 full. 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. 16,000/- which was deposited as the price of resin be ordered to be paid to him in full. 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 Ram defendant No. 2 was entitled to receive the balance of Rs. 2,000/-. 11. For the aforesaid reasons, the appeal fails and is dismissed. In the circumstances, however, we leave the parties to bear their own costs. Appeal dismissed.-