People''s Shoe Co. and Others vs Anumala Kameswaramma and Others

B. Subhashan Reddy, J.—This Civil Revision Petition arises out of an order dated 23-8-1991 passed by the learned II Additional Subordinate Judge, Vijayawada in I.A. No. 3449 of 1991 in O.S. No. 18 of 1982 refusing to recast the issue placing onus of proof on the plaintiff ''relating to retirement'' from the partnership with effect from 1-12-1978 pursuant to her letter dated 27-11-1978.

The plaintiff has instituted the suit claiming the relief of dissolution of the firm and for rendition of accounts on the premise that the partnership was subsisting, while the defendants raised a contention that the suit was not tenable as the plaintiff was no more a partner with effect from 1-12-1978 due to her retirement.

The grant of relief is based on the main issue i.e. the continuance of the plaintiff as a partner in the firm concerned. If she was continuing as a partner as on the date of presentation of the plaint, she would be eligible for the relief ''as sought for''. If she had retired as mentioned in her letter dated 27-11-1978, she would not be eligible for any relief, as the very retirement would non-suit her. In her pleadings in the plaint, she took a stand that her signatures were obtained on blank papers; thus indicating that the letter of retirement dated 27- 11-1978 pleaded by the defendants was a manipulated one and that she is not the author of the contents of the said letter dated 27-11-1978. On the other hand, the defendants in the written statement have pleaded that the plaintiff had executed the letter of retirement dated 27-11-1978 and denied the allegation that they had obtained the signature of the plaintiff on the blank papers, be it stamped or ordinary. As such, the triable issue was whether the plaintiff had retired from the partnership with effect from 1-12-1978 and the crucial document in this regard is the letter dated 27-11-1978 pleaded by the defendants. It is not the case of the plaintiff that the said letter did not contain her signature. It is her case that though her signature appears on the said letter, the same was obtained on the blank paper and the authorship of the contents of the document cannot be attributed to her.

The court below on the basis of the pleadings has framed Issue No. 2 which is a material triable issue as mentioned infra:

"Whether the plaintiff had retired from the partnership of the first defendant-firm with effect from 1-124978?"

As the burden of proof is cast upon the defendants with regard to the retirement of the plaintiff from the partnership, the defendants had sought for recasting of issue placing onus of proof on the plaintiff instead of on them in view of the fact that the plaintiff had admitted her signature on the letter dated 27-11-1978, though disputed the authorship of the contents of the said letter.

It is contented by Mr. N. V. Suryanarayana Murthy, the learned counsel for the petitioner that as the signature on the letter of retirement dated 27-11-1978 is not denied by the plaintiff and that even though she denies the authorship of the contents of the said document on the ground that signatures were obtained on blank papers, the burden of proof lies on the plaintiff to prove the same and the onus shifts to the defendants only after such proof is adduced firstly by the plaintiff. In support of his proposition, he relies upon a judgment of a Division Bench of this court in Alapati Sivaramakrishnayya Vs. Alapatti Kashivishwanandham and Others, Dealing on this aspect, this Court has ruled thus:

"In the case of a letter where there can be no possible question of execution in the sense that no formalities are insisted upon by law, proof of a man''s signature under it is prima facie proof that the contents of the letter are attributable to his authorship. If a person denies that he has written a letter which contains his signature, then surely he must prove that he alleges i.e., the letter was got up on a blank piece of paper containing his signature, as also the circumstances in which he happened to put his signature on such a piece of paper."

Mr. M. Nageswara Rao, the learned counsel for the respondents submits that in view of the fact that the partnership is admitted, the burden lies upon the defendants to prove that the plaintiff had retired from partnership and as such, the issue as framed by the lower court is correct and it need not be recast.

While it is true that in a suit for dissolution of partnership and rendition of accounts, when the partnership is not disputed, the burden lies upon the other partners to prove that, though partnership existed earlier but later either it is dissolved by mutual consent among the partners or that one of the partners had retired from the said partnership. That is in the normal course of events. But, there is an exception in the instant case to the said normal rule of burden of proof in view of the admission of the plaintiff that her signatures were obtained on blank papers and in view of the fact that she does not dispute the signature on the letter of retirement dated 27-ll-1978, but disputes the authorship of the contents of the same. Once the signature of the plaintiff on the letter of retirement is not disputed, but an allegation is made that the authorship of the, contents of the said letter cannot be attributed to her, the onus of proof automatically shifts from that of the defendants to the plaintiff and the plaintiff has to prove that her signatures were obtained on the blank papers and that the letter of retirement dated 27-11-1978 is drawn-up and fabricated. Thereafter, the defendants have to adduce rebuttal evidence on that aspect. I am in respectful agreement with the Bench Judgment referred to above and I consequently hold that the issue as framed by the lower court placing onus of proof in the defendants needs to be recast in view of what is stated supra.

The next question is as to whether I can recast the issue setting aside the order passed by the court-below in exercise of my powers u/s 115 of Civil Procedure Code.

Order 14, Rule 5 of C.P.C. empowers the court to amend the issues or frame additional issues, as may be necessary for determining the matters in controversy between the parties, as also to strike ''off any issues that appeared to be wrongly framed and this power of amending the issues, framing additional issues or striking off the issues can be exercised by the court at any time before passing a decree. If the trial court has refused to amend the issues based on the pleadings of the parties, it would amount to exercise of its jurisdiction illegally, even though the order has been passed at the interlocutory stage in an interlocutory application as the same adversely affects the concerned party and would fall within the term "case decided". In the instant case, on the basis of the pleadings, the issue referred to above was bound to be recast and in not doing so, the court-below has exercised its jurisdiction illegally. In such circumstances, this court can certainly exercise its revisional power u/s 115 C.P.C. to set right the same and the interests of justice also warrant the same course. The judgment tendered by this court in Shivaram Reddy v. Sangareddy 1963 (1) An.W.R. 246 amply supports my view stated supra.

In view of what is stated supra, the relief sought for by the defendants to recast the issue placing onus of proof on the plaintiff ought to have been allowed by the lower court and in not doing so, the lower court has committed an error of jurisdiction. The proper issue to be framed is as mentioned infra. In so far as Issue No. 2 is concerned, the same is recast by me in exercise of my powers under Sec 115 C.P.C. to the following effect:

"Whether the plaintiff had not retired from the partnership of the first defendant-firm with effect from 1-12-1978 and whether the plaintiff is not the author of the contents of the letter of retirement dt. 27-11-1978?"

The lower court is directed to substitute the above issue recast by me in place of original Issue No. 2 and proceed with the trial of the suit in O.S. No. 18 of 1982 on its file and dispose of the same in accordance with law.

It is needless to mention that the issue is ordered to be recast only on the basis of the pleadings and the same has got to be answered in one way or the other basing on the evidence and the rebuttal evidence to be adduced by the parties uninfluenced by any observations made in this C.R.P.

The Civil Revision Petition is disposed of accordingly. No costs.