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2001 DIGILAW 510 (PAT)

Sunita Singh v. Ramjee Singh

2001-07-02

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. The aforesaid miscellaneous appeal and civil revision were taken up for analogous hearing because they have been preferred against the same order dated 10.4.1995 passed by the Subordinate Judge, Patna, in Title Suit No. 378 of 1994. The defendant of the suit is the appellant and revisionist in the aforesaid appeal and revision. The contention of the appellant before this court is that the aforesaid title suit was not maintainable under Order 7 Rule 11 C.P.C. and, hence, it was prayed that the plaint of the suit be rejected under the aforesaid provision. The defendant-appellant (revisionist) had filed a petition under Section 34 of the Arbitration Act for staying the proceedings of the suit because the concerned firm was not a registered one and hence the suit filed under the Arbitration Act was not maintainable. Both the prayers of the appellant were rejected by the impugned order and hence this appeal and the aforesaid revision. 2. It was submitted by the appellants lawyer that admittedly the concerned firm (Annexure-1) of the revision and the appeal was not a registered one. So, no suit under the Arbitration Act could be filed before the Subordinate Judge. Hence, the plaint was to be rejected. The other prayer was for stay of the proceedings in view of the fact that under the terms of the Arbitration agreement (Annexure-1) the dispute was referable to the Arbitrator. 3. It was further submitted that the learned Subordinate Judge rejected and dismissed the prayers of the appellant on the ground that the appellant appeared in the suit and prayed for time to file W.S. and thus she had submitted to the jurisdiction of the court. The learned Subordinate Judge did not consider the prayers of the appellant on merit. 4. Lawyer for the respondent submitted that, of course, the concerned firm was not a registered one and so the suit may not lie under the Arbitration Act, but since the plaintiff-respondent had filed the suit for partition of his share in the concerned business firm, a general suit for partition was fit to be continued. So, the impugned order is justified. 5. However, I am of the opinion that, of course, since the suit was filed for partition of Pssets on the basis of an unegistered firm, the suit was not maintainable under the Arbitration Act. So, the impugned order is justified. 5. However, I am of the opinion that, of course, since the suit was filed for partition of Pssets on the basis of an unegistered firm, the suit was not maintainable under the Arbitration Act. The frame of the suit indicated that it was preferred under the provisions of the Arbitration Act and the pleadings also indicated that the plaintiff-respondent was claiming his rights and liabilities on the basis of an unregistered partnership agreement. 6. In the result, this appeal is allowed and the impugned order is set aside. The suit shall stand dismissed. The plaintiff- respondent shall, however, be free to file a fresh suit, if permissible under the law, in the form of a general partition suit of his assets and liabilities, if any, in the business concerned carried on by the plaintiff and the defendant as claimed by the respondents lawyer. The revision is also allowed and is disposed of accordingly.