MIAN SAQIB NISAR, J.- The appeal in hand and Regular Second Appeal No. 775 of 1978 arise out of the same suit and are against the common judgment passed by Syed Muhammad Zafar Babar, Additional District Judge, Jhang, whereby the disposed of two appeals filed by the parties, consequently these appeals are! Being disposed of by this judgment.
2. The present litigation has its genesis in a suit for dissolution of the partnership and rendition of accounts filed by Allah Ditta (appellant in R.S.A. No. 775 of 1978). Preliminary decree was initially passed which was ultimately modified by this Court vide judgment dated 5.6.1968 passed in R.S.A.
No. 433 of 1958. The relevant paragraph of this Court's judgment is reproduced hereunder:- "For the foregoing reasons I accept the appeal and set aside the judgment of the lower Appellate Court. The preliminary decree passed by the Trial Court cannot be maintained in its entirety either.
It is modified to the extent that the decree of the rendition of accounts shall be against respondents Nos. 1 and 2 only, who alone will be liable to fender accounts to the plaintiff in respect of bis 2 annas share in the property of the partnership as originally constituted and the share of the profits which might have accrued and are attributed to the use of his share in the property of the firm. If for any reason it is possible to work out the precise figure of the share of profits occurring to the plaintiff as aforesaid then the learned Trial Court will be at liberty to consider whether or not, in the circumstances of the case, it would not be just and equitable to allow the plaintiff the option of claiming interest at the specified rate on the amount of share of the property. The firm as constituted under the instrument of 10.8.1949 shall stand dissolved as from 2.6.1955 when the plaintiff-appellant instituted the suit."
3. After the disposal of the aforesaid appeal Sheikh Maqsood Ahmad, Advocate Jhang was appointed as a Local Commissioner on 25.5.1972 by the Civil Judge, who gave his report Exh. C/1, dated 2.1.1973. On the basis of the aforesaid report final judgment and decree dated 10.5.1973 was passed by the Civil Judge. Against this judgment and decree two appeals were filed by the present appellants, which were dismissed by the learned Additional District Judge, Jhang vide judgment and decree dated 18.10.1977. The present appeals have been filed against the aforesaid judgments and decrees of the Courts below.
4. The learned counsel for the appellants in the instant appeal (R.S.A. No. 881 of 1977) has only raised one contention that the report of the Local Commissioner was given ex-parte and they had been condemned unheard. He has tried to establish that the entire evidence produced before the Local Commissioner was in their absence and no opportunity of cross-examination of the witnesses or refuting the documents was given to the appellants.
5. On the other hand, the learned counsel for the respondent has contended that both the parties, in fact, had been duly participating in the proceedings before the Local Commissioner. However, the appellants thereafter, absented and did not participate, therefore, the plea of having been condemned unheard is devoid of force.
6. I have heard the learned counsel for the parties and perused the judgments of both the Courts below and find that the contention of the learned counsel for the respondent is correct. This objection was raised before both the Courts below and after examination and proper appreciation of the record was repelled by the Courts. The learned counsel for the appellants has failed to point out any misreading of the record by the Courts below, therefore, this appeal-(R.S.A. No. 881 of 1977) is dismissed.
7. In the other appeal Mr. S.M. Almas Ali, Advocate, has argued that the report of the Local Commissioner has not decided the matter of profits accrued or attributable to the use of the share in the property belonging to the appellant, therefore, he states that the judgments and decrees of both the Courts below without determining this aspect of the matter are bad in law.
8. It is referred in paragraph 4 of the judgment of the learned Additional District Judge that Allah Ditta (who is appellant in R.S.A. No. 775 of 1978) did not file any objections to the report of the Local Commissioner and, in fact, in his reply dated 13.3.1979 (reply filed to the objections raised by Mistri Allah Bakhsh and Khizar Hayat defendants to the report of the Local Commissioner) prayed that the report of the Local Commissioner dated 2.1.1973 be accepted and decree be passed in accordance with the same. The learned counsel for the appellant has not been able to contradict these observations of the Appellate Courts. I am afraid that in the light of his accepting the report of the Local Commissioner and also requesting that the matter be disposed of on the basis of the said report how can appeal be filed or sustained by the appellant (Allah Ditta). The judgments and decrees passed by the Courts below are absolutely in accordance with law and no factual or legal infirmity including misreading of record or mis-application of law has been pointed out.
9. In view of the above, this appeal (R.S.A. No. 775 of 1978) is also devoid of any force and the same is hereby dismissed. The judgments and decrees of the Courts below are upheld. There shall be no order as to costs.