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2006 DIGILAW 830 (GAU)

Hage Tara v. Hage Appo

2006-09-04

R.B.MISRA

body2006
JUDGMENT R.B. Misra, J. 1. Heard Mr. D. Majumdar and Mr. B. Habung, learned Counsel for the Appellant-Defendant and also heard Mr. T. Pertin, learned Counsel for the Respondent-Plaintiff. The present appeal has been preferred under Section 48 of the Assam Frontier (Administration of Justice) Regulation, 1945 (in short, called the 'Regulation, 1945') read with Section 96 of the Code of Civil Procedure against the judgment and order dated 18.5.2006 passed in Title Suit No. 01/1995 by the Deputy Commissioner, Lower Subansiri District, Ziro, whereby the Respondent 's/Plaintiff's suit for dissolution of the partnership firm under the name of M/s. Laali Gyochi Gas Service, was decreed and Deputy Registrar of the Cooperative Societies, Ziro was appointed as a Commissioner to take accounts of the Firm. 2. The questions for consideration in the present appeal are: (i) Whether the deposition/evidence of Plaintiff in earlier case/Money suit for recovery of Rent could be allowed to be accepted or treated to the deposition/evidence of same Plaintiff (in reference to Section 33 of Evidence Act) in an Anr. Case/Title Suit, between the same parties, without fulfilling the preconditions and requirements of Section 33, more so, without rendering and bringing on record for consideration in evidence for proving the same consistent to the procedural law governing the trial of civil cases/suits, for the purpose of dissolution of firm by Court under Section 44 of The (Indian) Partnership Act? (ii) Whether irrelevant, inadequate and in-admissible evidences/depositions of Plaintiff in earlier case/Money Suit, could be made relevant, adequate and admissible for the same Plaintiff with the consent of the parties (i.e. with the consent of Plaintiff and Defendant) in Anr. case/Title Suit? 3. The necessary facts for adjudication of the present appeal are that an agreement dated 20.03.1090 between Shri Hage Tara, Appellant-Defendant and Shri Hage Appo, Respondent-Plaintiff in connection with the management of M/s. Laali Gyochi Gas Service, Ziro, was entered into and the text of such agreement is extracted as below: Agreement Licence No. OC (LPG) S-56/MTAN Dated 20.03.90 1. Shri Hage Tara (First Party Between 2. Shri Hage Appo (Second Party) In connection with management of Laali Gyochi Gas Service. We the first party and the second party have agreed for joint management of the above Gas Service in following terms and conditions: 1. Shri Hage Tara (First Party Between 2. Shri Hage Appo (Second Party) In connection with management of Laali Gyochi Gas Service. We the first party and the second party have agreed for joint management of the above Gas Service in following terms and conditions: 1. Whereas the first party got a licence of LPG distributorship from the IOC authorities for opening a outlet for public sale at Hapoli (Ziro). The second party has invested the initial expenditure at the tune which may be worked out later. 2. The expenditure might have incurred by both partes till the date of commission (10th April 1990) will be shared in the ratio of 50:50, 3. Since the godown has been constructed in the plot at Laru owned by the second party, rents will be charged at the rate which might be prevailing in that locality after five years. The land where the godown is constructed will never be claimed by the first party whatsoever. 4. The first party will act as the manager and will be sole responsible for smooth management of the gas service for the next five years to start with. He will be paid total emoluments of Rs. 1600/- per month. He will not engage himself in any other personal business during the above period. 5. The first party and the second party will share the net profit at 40% and 60% respectively. 6. The balance amount of bank loan if any shall be utilized for improvement and development of the gas service only. If necessary, they may open a joint account in a bank as may be convenient to them. Sd/- Sd/- Shri Hage Tara Shri Hage Appo (First Party) (Second Party) Witness : 1. Shri Hage Ajo (Sd/-) 2. Hage Hanya (Sd/-) 3. Hage Taki (Sd/-) 4. Shri Hage Tatung (Sd/-) 5. Shri Hage Tado (Sd/-) 6. Hage Batt Agreement executed in my presence Sd/- JMFC, Ziro 4. Shri Hage Tara, the first party of the agreement, undisputedly is the brother of Plaintiffs/Respondent's wife (the brother of wife of Shri Hage Appo). The Respondent/Plaintiff instituted a Money Suit No. 01/95 in the court of the Deputy Commissioner, Lower Subansiri District against the Appellant-Defendant praying that being a partner of M/s Laali Gyochi Gas Service, he is entitled to accounts of the firm, interalia seeking dissolution of the partnership firm and recovery of the share of his profit. The Respondent/Plaintiff instituted a Money Suit No. 01/95 in the court of the Deputy Commissioner, Lower Subansiri District against the Appellant-Defendant praying that being a partner of M/s Laali Gyochi Gas Service, he is entitled to accounts of the firm, interalia seeking dissolution of the partnership firm and recovery of the share of his profit. According to the Respondent-Plaintiff, the Appellant approached him in the first week of April 1989 for financial assistance for establishment of distributorship of LPG of the Indian Oil Corporation in reference to licence allotted to him. The Appellant, was an employee of the Food and Civil Supplies Department, from where he resigned from service and Respondent/Plaintiff agreed to invest money for starting the business of LPG distributorship and had constructed a storage shed on the plot belonging to him by spending Rs. 1,03,431/-, besides depositing a sum of Rs. 40,000/- in the State Bank of India, Ziro Branch, as margin money for the purpose of getting loan from the Bank. Thereafter, the Indian Oil Corporation granted LPG distributorship licence on 20.3.1990 in the name of the Appellant-Defendant, thereupon, on 12.04.1990 both entered into a partnership agreement indicating that the Respondent/Plaintiff was to make the initial investment and the expenditure till the date of permission was to be borne by the parties at the ratio of 50:50. Since the Godown was constructed on the land of Respondent-Plaintiff, as such he was entitled to charge rent at the prevailing rate after five years, whereas, the Appellant-Defendant was to act as a manager of the firm at a monthly remuneration of Rs. 1600/- and the profit sharing was to be made in ratio of 40:60. Accordingly, a firm in the name and style of M/s Laali Gyochi Gas Service was set up and business was commenced from 12.4.1990. The Appellant prepared the accounts for amount after commencement of the business and paid the Respondent/Plaintiff his share of profit of Rs. 1,23,716/-, thereafter, Appellant-Defendant neglected to maintain the accounts and despite repeated efforts on the part of the Respondent-Plaintiff, the former had failed to furnish the accounts. In that reference, Respondent-Plaintiff served a legal notice on 24.3.1994 to the Appellant-Defendant who replied the same on 25.5.1994, thereafter in reference to criminal breach of trust, Respondent-Plaintiff instituted a Title Suit No. 01/95 for dissolution of the firm, accounts and recovery of his share of the property. 5. In that reference, Respondent-Plaintiff served a legal notice on 24.3.1994 to the Appellant-Defendant who replied the same on 25.5.1994, thereafter in reference to criminal breach of trust, Respondent-Plaintiff instituted a Title Suit No. 01/95 for dissolution of the firm, accounts and recovery of his share of the property. 5. The Appellant-Defendant contested the suit by filing a written statement, denying the averments of plaint inter alia stating that the suit was barred by Section 69 of the Indian Partnership Act. It is also revealed that the Respondent Plaintiff had filed a money suit No. 3/95 before learned Deputy Commissioner, Lower Subansiri District, Ziro for realization of Rs. 24,000/- as an arrear of rent of four months (at the rate of 6000/- per months) from Appellant for the godown meant for storing LPG cylinders, wherein both the parties adduced oral as well as documentary evidences in support of their respective stand. On the basis of the evidences and pleadings, learned court below decreed the said money suit for a sum of Rs. 9,60,000/- on 17.12.2003 in favour of Respondent-Plaintiff herein, against which an appeal of Appellant before this Court was dismissed, thereafter, a review petition No. FRA 01 (AP) 2005 was filed that too was dismissed, being aggrieved, a SLP (Civil) No (s). 23205-23206/2005 was preferred by the Appellant before Hon'ble Supreme Court wherein a notice was issued directing the Appellant to pay Rs. 3,000/- per month as a rent to the Respondent-Plaintiff, accordingly, he has deposited an amount of Rs. 1,00,000/- before the Deputy Commissioner, Lower Subansiri District, however, Respondent Plaintiff refused to accept the same, thereupon Hon'ble Supreme Court has directed on 13,4,2006 that the parties should explore the possibility of settling the matter amicably. 6. During the Trial of Title Suit No. 01/95, the Respondent-Plaintiff preferred an application dated 22.11.2001 before learned trial Court with prayer for dispensing with the adduction of evidences afresh in the present case and instead to treat the oral evidences recorded in Money Suit No. 03/95 as the evidences for Title Suit No. 01/95 as these evidences are to cover the facts in issue of Suit No. 01/95, however, all these witnesses were otherwise available and capable of appearing in the court as witnesses, moreover, the questions in issue in two suits were not substantially the same. 7. 7. The Appellant wanted to examine some witnesses, which were not examined in the money suit (M.S. No. 3/95) for that an application was filed on his behalf on 28.10.2003 for permission to adduce defence witnesses by praying that the Appellant has no objection to treat the evidence in the money suit as prayed for by the Respondent, and on such application the order dated 27.11.2003 was passed indicating that the deposition of witnesses in Money Suit No. 3/1995 of the Respondent/Plaintiff be taken as deposition of witness for the Plaintiff in the Title Suit No. 1/95. In the light of such order dated 27.11.2003, the Appellant examined two witnesses, whereas, the Respondent/Plaintiff adduced no further oral or documentary evidence. On consideration of the pleadings and deposition of PWs and DWs adduced in Money Suit No. 03/95, learned trial; Court decreed T.S. No. 01/95 of Respondent-Plaintiff vide judgment and order dated 18.05.2006 directing the unregistered partnership firm of M/s Laali Gyochi Gas Service, dissolved and thereby appointing deputy Registrar of the Co-operative Societies, Ziro as the Commissioner to take accounts of the said firm w.e.f. 11.05.1990 with further direction to the Appellant to furnish the books of accounts and other records. 8. The following submissions have been made for and on behalf of the Appellant: (i) Decreeing a T.S. No. 1/95 of Respondent/Plaintiff the trial Court allowing and relying solely on the basis of evidence adduced by him in an Anr. judicial proceeding (i.e. M.S. No. 3/95) without fulfilling certain specified conditions and legal requirements of Section 33 of the Indian Evidence Act, 1872 is contrary to law. (ii) The observance of provisions of the Indian Evidence Act' is on higher pedestal, as adjudication of, civil suits under 'regulation 59' of "Regulation 1945" shall be guided by the general principles of Evidence Act though Deputy Commissioner, Assistant Commissioner shall be guided by spirit but shall not be bound by the letter of Code of Civil Procedure as such compliance of provisions of Section 33 of Evidence Act are mandatory while allowing the evidences of Money Suit No. 3/95 for adjudication of T.S. No. 1/95. (iii) The depositions of witnesses of Money Suit No. 3/95 (allowed by Trial court to be treated as depositions and witnesses to be the basis for adjudicating of T.S. No. 1/95) could not meet the legal requirements and conditions of Section 44(C) and Section 44(d), of the Indian Partnership Act, 1932' for dissolution of firm by the Court. (iv) The Respondent/Plaintiff was to produce his evidences in support of the issues which he was bound to prove in the light of provisions of Order 18 Rule 2 of Code of Civil Procedure, more so, no evidence was produced to meet the requirement of Section 44(c) & 44(d) of the (Indian) Partnership Act for dissolution of firm by the Court. (v) In view of the order dated 27.11.2003 only the deposition of the witnesses in Money Suit No. 3/95 were to be treated as the depositions of T.S. No. 1/95 but the documentary evidence including the Partnership deed are not the part of T.S. No. 1/95 as a result, the Trial Court committed error in presuming the exhibits of Money Suit No. 3/95 as the exhibits for present case. 9. On the other hand, the learned Counsel for the Respondent-Plaintiff, Mr. T. Pertin has argued that the Appellant had cross-examined all the witnesses whom he has declined earlier and since the issues in question of both the suits e.g. M.S. No. 3/95 and T.S. No. 1/95 were more or less similar and coming out from the same set of documents between the same parties. However, Mr. T. Pertin has further submitted that Shri Hage Appo, Respondent/Plaintiff has indicated in his deposition that he studied in class-Ill and has always been avoiding the disputes. The relevant portion of his deposition is extracted herein below which according to the learned Counsel for Respondent/Plaintiff may meet the requirement of Sections 44(c) & 44(d) of the (Indian) Evidence Act: I have studied till Class-3, I don't know till which standard Hage Tara has studied. After accounting I kept 60% of profit and 40% of profit was given to him. After one month Hage Tara was asked to run the business by me and I will do the accounting after 6 months. After that once profit and loss was tried to be finalized after 9 months but it couldn't be done as there was dispute. 10. After one month Hage Tara was asked to run the business by me and I will do the accounting after 6 months. After that once profit and loss was tried to be finalized after 9 months but it couldn't be done as there was dispute. 10. For convenience, Section 33 of the Indian Evidence Act, 1872 is quoted herein below: 33. Relevancy of certain evidence for providing in subsequent proceeding, the truth of facts therein stated: Evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is relevant for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable Provided: that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right of opportunity to cross-examine, that the questions in issue were substantially the same in the first as in the second proceeding. Explanation - A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this Section. The question of allowing deposition of earlier Money Suit No. 3/95 to be taken in T.S. No. 1/95 would arise after fulfillment of certain conditions such as when the witness is dead, or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case, the court, considers unreasonable and also if the questions in issues were substantially the same in the two proceedings, but in the instant case, none of these conditions has been fulfilled yet the court below allowed the prayer of the Respondent/Plaintiff to treat the evidence of the earlier money suit i.e. M.S. No. 3/95 to be the evidence for this case (T.S. 1/95) in utter violation of the provisions of Section 33. If the conditions mentioned in Section 33 are not fulfilled the deposition of Plaintiff/Respondent/Shri Hage Appo cannot be allowed to be taken in T.S. No. 1/95 unless the same has been proved. 11. According to the learned Counsel for the Appellant, the relevant provisions under Regulation 52 and 59 of the 'Regulation 1945' are quoted herein below: 52. [The High Court] the court of [Deputy Commissioner], [Assistant Commissioner] shall be guided by the spirit, but shall not be bound by the letter of the Code of Civil Procedure. 1908, and shall follow subject to any express provisions of these rules, the principles of the Indian Limitation Act, 1908, in disputes between persons who are not indigenous to the [Union Territory of Arunachal Pradesh] 59. The [Deputy Commissioner] (Assistant Commissioner] shall in all criminal cases and civil suits be guided by the general principles of the Indian Evidence Act, 1872 The provision of Regulation 59 of 'Regulation 1945' reveals that the applicability of the provision of the Indian Evidence Act is on a higher footing as adjudication of the civil suit be guided by the general principles of the Indian Evidence Act, whereas, the provision of Regulation 52 indicates that the Deputy Commissioner, Assistant Commissioner, shall be guided by the spirit but shall not be bound by the letter of Code of Civil Procedure therefore it becomes evident that while adjudicating Civil Suits the provisions of adherence of requirements of Section 33 of the 'Indian Evidence Act' are necessary subject to the fulfillment of requirements indicated in Section 33; 12. According to the learned Counsel for the Appellant/Defendant, the earlier Money Suit No. 03/95 was preferred for recovery of rent and the second suit was for altogether different purpose i.e. for dissolution of firm etc. or which protection of Section 44 of the Indian Partnership Act, 1932 could be availed of by the Respondent Plaintiff/opposite party subject to the fulfillment of requirements under Sections 44(c) and 44(d) of the (Indian) Evidence Act'. For convenience, Sections 44(c) and 44(d)are quoted herein below: 44.(c) that a partner, other than the partner suing, is guilty of conduct which is like to affect prejudicially the carrying on of the business, regard being had to the nature of the business. For convenience, Sections 44(c) and 44(d)are quoted herein below: 44.(c) that a partner, other than the partner suing, is guilty of conduct which is like to affect prejudicially the carrying on of the business, regard being had to the nature of the business. (d) that a partner, other than the partner suing willfully or persistently commits breach of agreements relating to the management of the affairs of the firm or the conduct of its business or otherwise so conducts himself in matters relating to the business that it is not reasonably practicable for the other partners to carry on the business in partnership with him. 13. Learned Counsel for the Appellant has, however, vehemently argued that the deposition of Shri Hage Appo, Respondent/Plaintiff extracted in paragraph 9 above was not sufficient to meet the requirements of Section 44(c) and 44(d) of 'The (Indian) Partnership Act and even if for sake of arguments such statements of Shri Hage Appo was taken to be accepted for the purpose of adjudicating the Title Suit No. 01/95, such materials are insufficient and cannot decide the fate of T.S. No. 01/95. In my respectful consideration above extracted part of deposition of Respondent/Plaintiff are not indicating that the Appellant was guilty of such conduct which was likely to affect prejudicially the carrying on the business as required under Section 44(c) and Defendant was will fully or persistency committing breach of agreement relating to management or conduct of business or otherwise his conduct was so, that it was reasonably not practicable for other partner i.e. Respondent/Plaintiff to carry on the business in partnership with him. 14. According to the Appellant, deposition of Shri Hage Appo/Respondent/Plaintiff, in (MS No. 3/95) restricted to the facts and circumstances of the Money Suit was irrelevant, insufficient and inadmissible for the Title Suit No. 1/95 for the purpose dissolution of firm as that was altogether on different premises could not be made admissible on agreement of parties or on the consent of Appellant at the instance of the Respondent/ Plaintiff. In this reference, the Appellant has referred the decision in AIR 1942 Mad 528 (Ayyavar Thevar v. Secretary of the State represented by Col. Lector of Tanjore)' where it was observed as follows. The scheme of the Evidence Act is that the evidence must, to be relevant or admissible fall within one or Anr. section of the Act. In this reference, the Appellant has referred the decision in AIR 1942 Mad 528 (Ayyavar Thevar v. Secretary of the State represented by Col. Lector of Tanjore)' where it was observed as follows. The scheme of the Evidence Act is that the evidence must, to be relevant or admissible fall within one or Anr. section of the Act. If a particular statement or document cannot be brought within the four corners of any section of the Evidence Act, it will have to be rejected. Irrelevant and inadmissible evidence cannot be made relevant or admissible with the consent of a party. Consent or want of objection to the reception of evidence, which is irrelevant, cannot make the evidence relevant, but consent or want of objection to the wrong manner in which relevant evidence was brought on record of the suit disentitles parties from objecting to such evidence subsequently. Unless a party can be found to have been estopped from objecting to the admissibility of the evidence it can not be said that evidence not otherwise admissible or which would have been liable to rejection if objection were taken it, may be perfectly good evidence is admitted by the consent of parties. 15. According to the learned Counsel for the Appellant, it was the Respondent-Plaintiff to adduce evidence in support of his claims and issues which he was bound to prove in the light of provisions of Order 18 Rules 2 of Code of Civil Procedure. For convenience, Order 18 Rule 2 is extracted as below: 2. Statement and production of evidence (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. (2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. (3) The party beginning may then reply generally on the whole case. (3-4) Any party may address and arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the Court so permits concisely and under district headings written arguments in support of his case to the Court and such written arguments shall form part of the record. (3-4) Any party may address and arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the Court so permits concisely and under district headings written arguments in support of his case to the Court and such written arguments shall form part of the record. (3-B) A copy of such written arguments shall be simulaneously furnished to the opposite party. (3-C) No adjournment shall be granted for the purpose of filing the written arguments unless the Court for reasons to be recorded in writing, considers it necessary to grant such adjournment. (3-D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it thinks fit.] In the facts and circumstances it is pertinent to note that, no evidence could be produced by the Respondent/Plaintiff in support of his contentions made in the plaint to meet the requirements of Section 44(c) and 44(d) of the (Indian) Partnership Act for dissolution of firm by the Court. 16. The learned Counsel for the Appellant-Defendant invited attention to the paragraph 18 of the judgment in AIR 2002 SC 1061 (J.J. Lal Pvt. Ltd and Ors. v. M.R. Murali and Anr.), where Hon'ble Supreme Court has observed as below: 18. What amounts to denial of title, and whether such denial is bonafide or not are the question to be determined in the facts and circumstances of each case. As a general rule the vulnerability of denial of title by the tenant shall be tested by reference to rule of estopped contained in Section 116 of the Evidence Act which estoppes the tenant from denying the title of the landlord at the commencement of the tenancy and the estopped continues to operate so long as the tenant does not surrender possession over the tenancy premises to the landlord who inducted him in possession. The tenant is not estopped from denying the title of the landlord if it comes to an end subsequent to the creation of the tenancy nor is the estopped from questioning the derivative title of a transferee of his landlord. However, the rule of estoppel contained in Section 116 of the Evidence Act is not exhaustive. The tenant is not estopped from denying the title of the landlord if it comes to an end subsequent to the creation of the tenancy nor is the estopped from questioning the derivative title of a transferee of his landlord. However, the rule of estoppel contained in Section 116 of the Evidence Act is not exhaustive. To operate against the tenant as providing a ground for eviction under Section 10 of the Act a mere denial of the title of the landlord is not enough, such denital has to be not bona fide. Not bona fide would mean absence of good faith or non genuineness of the tenant's plea. If denial of title by the tenant is an outcome of good faith or honesty or sincerity, and is intended only to project the facts without any intention of causing any harm to the landlord it may not be not bonafide. Therefore, to answer the question whether an assertion of denial of landlords title by the tenant was bona fide or not, all the surrounding circumstances under which the assertion was made shall have to be seen. The counter highlights the factum and contents of notice by the Municipal Corporation served on the tenant, reproduced in the earlier part of this judgment and the reaction of tenants to the threat coupled with temptation held out by Corporation. This notice by Municipal Corporation states that tenants having informed the Municipal Corporation that they were in possession of the premises that they had agreed to pay to the Corporation the lease amount which was presumably in arrears on account of non payment by their landlords (i.e. the Respondents), that the Municipal Corporation threatened the tenancy premises being subjected to public auction if the arrears were. not cleared. This notice is by reference to letter dated 26.3.1993 sent by the tenants to the Municipal Corporation which is not available on record. The landlords on whom lay the burden of providing availability of the ground of eviction took no steps for the production of this letter. The contents of the letter would have provided vital evidence relating to the nature of manner of denial of the title by the tenants and the bona fides of denial could have been inferred. The High Court in its judgment has made a reference to a series of attempts to deprive the landlords of their lawful rights by tenants. The contents of the letter would have provided vital evidence relating to the nature of manner of denial of the title by the tenants and the bona fides of denial could have been inferred. The High Court in its judgment has made a reference to a series of attempts to deprive the landlords of their lawful rights by tenants. The High Court appears to have taken into consideration some other documents referable to some other litigations between the parties which documents, in our opinion, could not have been taken into considration unless tendered in evidence and brought on record consistently with procedural law governing trial of civil cases. There is yet Anr. error committed by the High Court. So far as the additional counter and contents of the notice by Municipal Corporation to the tenants are concerned we do not think that case of denial of title is made our. In any cases it cannot be considered to be not bona fide. The tenants have stated that the ultimate owners of the property where the Municipal Corporation and they have agreed their willingness to pay rent to the Municipal Corporation under thread of eviction solely for the purpose of protecting their own possession over the premises. They have neither disowned the title of their own landlords at the inception of the tenancy nor have set up any title in themselves nor attorned in favour of the Municipal Corporation by voluntarily entering into direct tenancy with the Municipal Corporation by passing their own landlords. We are therefore, clearly of the opinion that no case of eviction on the ground "tenants" denial of landlords the title "not bona" fide is made out". In the light of the observation made in above case of JJ Lal Pvt. Ltd. (Supra) the deposition of Shri Hage Appo i.e. Respondent/Plaintiff made in Money Suit No. 03/95 cannot be considered or accepted in T.S. No. 01/95 unless such evidence and document was tendered in evidence and brought on record for consideration in consonance to the procedural law governing trial of civil case/T.S. No. 1/95 i.e. Title Suit for dissolution of firm. 17. In Smt. Hamangaihzuali v. Smt. C. Laldingi in AIR 2004 Gau 13 , the production of evidence is minimum requirement to decide controversial facts even if Code of Civil Procedure and other laws are not followed in letters and spirit. 17. In Smt. Hamangaihzuali v. Smt. C. Laldingi in AIR 2004 Gau 13 , the production of evidence is minimum requirement to decide controversial facts even if Code of Civil Procedure and other laws are not followed in letters and spirit. Paragraphs 16 and 17 read as follows: 16. In any case no dispute can be resolved without asking for prima facie evidence and what is evidence has been defined in the Indian Evidence Act, 1872 (Act of 1872), to be referred in short as 'Evidence Act' as follows: Evidence : Evidence means and includes: (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents including electronic records produced for the inspection of the Court; Such documents are called documentary evidence. 17. In the instant case neither the trial Court nor the appellate Court took notice of the law that at least the contents of the plaint should have been proved by evidence of the Plaintiff whether she is administered oath or otherwise asked to make statement which will be true and correct to the best of her knowledge and information. But the learned trial Court below has opined that the Plaintiff has deposed that the Defendant has borrowed the money with agreement to pay interest. I find no such deposition in the case records of the trial Court. The learned trial Court abruptly came to the conclusion that as the Defendant failed to appear and submitted nothing in writing the submission of the Plaintiff is to be treated as true and correct. This view of the trial Court, in my opinion, is contrary to the principle of justice, equity and good conscience. Moreover, the interest due should be assessed only on basis of a reasonable ground particularly in view of the long delay of nine years in coming to seek relief from the Court. Therefore, it has been rightly submitted that the under the facts and circumstances the suit is required to be sent down to the trial Court for trial afresh after giving appropriate opportunity to the Defendant Appellant. Therefore, it has been rightly submitted that the under the facts and circumstances the suit is required to be sent down to the trial Court for trial afresh after giving appropriate opportunity to the Defendant Appellant. It may not be out of context to mention here that at least the facts alleged are required to be proved by the party bringing the suit to discharge the initial burden of proof even in an exparte hearing. Production of evidence is the minimum requirement to decide controversial fats even if the Code of Civil Procedure and other laws are not followed in letters and spirit by the Courts established in the State of Mizoram. The word proved has the definition in the Evidence Act as follows: Proved:: A fact is said to be provided when, after considering the matter before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. 18. I have perused the record. I find that the Appellant-Defendant had controverted the averments of Shri Hage Appo, Respondent-Plaintiff in Title Suit No. 01 /95, regarding the mismanagement and non-maintenance of accounts system by the Appellant. The deposition of Shri Hage Appo in Money Suit No. 03/95 even if taken to be admissible for limited purpose in T.S. No. 01/95, however that would be insufficient/inadequate and inadmissible, to meet the requirement of Section 44(c) and 44(d) of The (Indian) Partnership Act, more so, the preconditions of admissibility of deposition (of Respondent/Plaintiff in Money Suit No. 03/95) as required in Section 33 of Indian Evidence Act was not fulfilled. Out of the issues, issue No. VI was framed by the trial Court, which reads as follows: VI whether Plaintiff has right to claim for dissolution of the partnership and for account of the firm M/s Laali Gyochi Gas Service, Hapoli?" To meet the requirement of Section 33 of the Indian Evidence Act as well as Section 44(c)and 44(d) of. Out of the issues, issue No. VI was framed by the trial Court, which reads as follows: VI whether Plaintiff has right to claim for dissolution of the partnership and for account of the firm M/s Laali Gyochi Gas Service, Hapoli?" To meet the requirement of Section 33 of the Indian Evidence Act as well as Section 44(c)and 44(d) of. The (Indian) Partnership Act", the deposition of Shri Hage Appo/Respondent/Plaintiff made in Money Suit No. 3/95 was not relevant and admissible unless such documents in evidence was again subsequently tendered and brought on record of T.S. No. 1/95 for proving the same consistent to the procedure of law governing the trial of the Title Suit for dissolution of firm in question. Therefore, making reliance on the testimony and deposition of Shri Hage Appo/Respondent/Plaintiff for the purpose of adjudicating the Title Suit No. 01/85 under Section 44(c) and 44(d) of "The (Indian) Partnership Act" is not justifiable. In view of the foregoing analysis and observations the questions for consideration in the present appeal in paragraph-2 above are dealt with and answered accordingly. In the facts and circumstances, therefore, the impugned judgment and order dated 18.5.2006 is liable to be set aside therefore it is set aside and the T.S. No. 01/95 is remanded back to the learned Deputy Commissioner, Ziro for adjudication (by allowing Shri Hage Appo and other witnesses/ parties to adduce afresh the evidences) and to dispose afresh the said T.S. No. 01/95 expeditiously within a period of six months. For that purpose, the parties shall appear before the learned trial court on 25 the September, 2006 for proceeding in accordance with law.