' On 27-7-1994 the respondent filed a suit against the petitioner for rendition of accounts. The petitioner was served, he put in appearance and filed a written statement. The learned trial Court after examining the pleadings proceeded to pass a preliminary decree and directed the audit of the accounts of the firm and the rendition thereof. An Auditor was also appointed to undertake the said exercise. This was done vide preliminary decree dated 16-5-1996. A first appeal filed against the said preliminary decree was dismissed by a learned A.D.J., Islamabad, on 5-7-1999.
2. With reference to the cases of Ram Singh v. (Firm) Ram Chand-Tirath Ram and others AIR1936 Lahore 78; Mt. Merha v. Kundan Lal and others AIR 1914 Oudh 399; Razia Begum v. Sahebzadi Anwar Begum and others AIR 1958 SC 886 and Messrs Friend Engineering Corporation, The Mall, Lahore v.
Government of Punjab and 4 others 1991 SCM R 2324, the learned counsel for the petitioner argues that the learned trial Court had acted without lawful authority by proceeding, to pass a preliminary decree without framing issues and conducting a trial. According to the learned counsel notwithstanding the state of pleadings on record, it was at least necessary for the parties themselves to enter the witness box and to have been cross-examined by the other side. Learned counsel for the respondent, on the other hand, draws my attention to the pleadings of the parties to state that all the facts necessitating the passing of a preliminary decree stand admitted.
According to the learned counsel, admitted facts need not be proved and as such there was no issue arising between the parties to be decided for the purposes of preliminary decree. However, the learned counsel for the respondent does concede that the matter of the rendition of accounts has to be dealt with in the present pending phase of the suit and the parties will be at liberty to bring such facts and documents on the record of . The trial Court or the Auditor as he deemed necessary.
3. I have examined the copies of the records and particularly I have examined the pleadings of the parties. Now paras-1 and 2 of the plaint have been admitted by the petitioner. These paras narrate that a partnership in the name and style of Hajvairy and Hussain Construction Group was constituted wherein the petitioner and Mrs. Tasnim Tanveer, the sister-in-law of the respondent, were partners. Partnership was registered under the Partnership Act, 1932 and a Certificate of registration his been issued on 11-12-1989. A copy of the partnership deed and the Certificate of registration were appended as Annexures to the plaint. In para-2 it was stated that the partnership was re-constituted with the respondent substituting Mrs. Tasnim Tanveer who has resigned. There is reference to a supplementary deed dated 5-1-1992. The copy of the said supplementary deed and the copy of the Form of return under the Partnership Act duly signed by the parties and said Mrs. Tasnim Tanveer was filed as Annexures to the plaint. Similarly, ignorance has been expressed in the matter of Memorandum acknowledging receipt in Form 'D' issued by the Registrar of Firms.
Now with reference to the contract executed and performed for the construction of the Spanish Embassy in Islamabad. It had not been denied that it was the Firm which executed the contract and the works under it but it has been stated that the respondent had not been taking much interest in the business. After admitting the partnership deed it was stated that the rights of the respondent ought to have been determined with reference to ground realities. It was then stated that proper accounts are being maintained. Thereafter on the one hand it was stated that the respondent was looking, after the financial side of the Project and' on the other in the same breath it was stated that he was associated and kept informed of the accounting position and the progress of the work as also future plans were discussed with him. Then there is also reference to payment being made to him from time to time out of the profits. Ultimately, it was conceded that he is ready to sit down and provide the necessary explanation on the basis of the records. Then he refers to the balance-sheet which were showing losses. At the same time, it was stated that the said Project has been successfully completed and handed over. Then he reaffirmed the admission of the partnership agreement without any demur.
4. Now in the said state of pleadings, hardly any issue arises for purpose of preliminary decree. Now as stated by me above, all the material contents of the plaint stand admitted in particular the factum of the partnership as alleged in the plaint and further admission of the terms of the partnership deed duly referred to and appended with the plaint. This being so, there was no need to record any evidence to pass the preliminary decree and this, in fact, is the ratio of all the judgments cited by the learned counsel for the petitioner himself.
5. Now I have also examined the decree passed by the learned trial Court and as such affirmed by the learned Court of appeal. The learned trial Court has referred to the mentioned terms of the admitted partnership agreement between the parties which is duly registered under the Partnership Act, 1932. He has also referred to the admitted fact that the petitioner was managing and controlling day to day activities of the Project and he was responsible, inter alia, for maintenance of accounts after submitting the bills and receipts receiving the payment. The learned trial Court accordingly pronounced that the said Hajvari and Hussain Construction Group is a registered partnership with the parties as its partners; that the respondent is also a partner; that the share of the partners in profits and losses is equal; that the initial contribution of capital by each partner was equal but subsequent contribution would be variable; that the sole Project accomplished by the Firm was construction of Spanish Embassy and that the petitioner was responsible for maintenance of accounts.
6. None of the above facts have been denied by the learned counsel even At the bar today. This being so, all the requisites of a valid preliminary decree in a case of instant nature stand fulfilled.
7. Now the learned counsel insists that notwithstanding the said admitted position of the case, at least, the parties ought to have been allowed to enter the witness box to state their case and then to be cross-examined by the opposite party. When asked as to for what purpose the said exercises were to be undertaken, the reply is that in order to provide a guideline to the said Auditor who was to conduct the audit and the rendition of accounts.
8. To my mind where the facts stand admitted, there was no need for the parties to restate the same in the witness box. Apart from this I find that in the light of the said admitted factual position, the learned trial Court has issued adequate instructions taking care of interest of both the parties, to the appointed Auditors (there is no objection to the appointment of the said Auditors). The Auditor has been duly authorized to call for the records of the Spanish Embassy, finances of the suit Project as also to obtain the records of the partnership/joint bank accounts. Then instructions have been issued as to the contents of the said report to be prepared.
9. Having thus examined the records, I do not find any force in this civil revision which is dismissed.
However, parties are left to bear their own costs.
10. A copy of this judgment be immediately remitted to the learned trial Court who shall proceed further in the matter accordingly.