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2004 DIGILAW 169 (AP)

M. Prabhakar Reddy v. Jagdish Prakash Vijayawargi

2004-02-12

N.V.RAMANA

body2004
N. V. RAMANA, J. ( 1 ) IN this Civil Revision Petition, the petitioner is assailing the order dated 4-4-2003, passed by the 1 Additional District judge, Ranga Reddy, allowing the application I. A. No. 141 of 2003 in o. S. No. 135 of 2002, filed by the plaintiff- respondent No. 1 herein, seeking his impleadment as defendant No. 6 to the suit. ( 2 ) RESPONDENT No. 1 filed suit O. S. No. 135 of 2002 for dissolution of partnership firm, namely respondent No. 6-Green Acres poultry Farm and obtained an order of injunction in respect of the suit schedule properties agains the defendant Nos. 1 to 3 therein. It is the case of respondent No. 1 that the suit properties belong to the partnership firm, and that defendant Nos. 1 and 2 sold the suit schedule properties in favour of one m. Prabhakar under registered agreement of sale-cum-G. P. A. , and therefore, he filed the present I. A. seeking his impleadment as a necessary and proper party to the said suit. Aggrieved by the order passed by the court allowing the said I. A. , the petitioner who was impleaded as defendant No. 6 to the suit, filed the present C. R. P. ( 3 ) THE learned counsel for the petitioner vehemently submitted that the petitioner is neither a partner in the partnership firm nor has anything to do with partnership firm for he has purchased the suit schedule A, B and c lands from defendant Nos. 1 and 2. The impugned order is a non-speaking order, and is therefore, liable to be set aside. The alleged unregistered partnership deed is improperly stamped, and therefore, cannot be looked into. He submitted that inasmuch as the alleged partnership firm, is an unregistered one, having regard to the provisions of Section 69 of the Indian partnership Act, 1932, respondent No. 1 is not entitled to maintain the very suit itself. Inasmuch as the petitioner is neither connected with the affairs of the partnership firm nor has anything to do with the partnership firm, he is not a necessary and proper party to the suit, and therefore, he submits that the court below ought not to have impleaded the petitioner as defendant no. 6 to the suit, and accordingly prayed for setting it aside. ( 4 ) THE learned counsel for respondent no. 6 to the suit, and accordingly prayed for setting it aside. ( 4 ) THE learned counsel for respondent no. 1 submitted that the petitioner is contesting the matter before the court below, and this is evident from the fact that he contested I. A. No. 3039 of 2002 filed against him, and also filed a caveat petition before the High Court against its dismissal. Inasmuch as the petitioner failed to file his counter to the application seeking his impleadment, the court below allowed the said application by a non-speaking order. The petitioner also filed a written statement. The petitioner is a proper and necessary party to the suit as he purchased the property belonging to the partnership firm without the knowledge of respondent No. 1 by clearing the bank loan standing in the name of the partnership firm. Respondent nos. 2 and 3 had contributed the properties said to have been purchased by the petitioner under agreement of sale-cum- g. P. A. as capital in the partnership firm. Respondent Nos. 2 and 3 with a view to defraud respondent No. 1, taking advantage of the fact that the sale deeds are in their names, executed the agreement of sale- cum-G. P. A. Inasmuch as the petitioner had agreed to purchase the properties of the partnership firm, he is a proper and necessary party, and the court below had rightly impleaded him as defendant No. 6 to the suit. He, thus prayed that the C. R. P. be dismissed. ( 5 ) HEARD the learned counsel for the petitioner and the learned counsel for respondent No. 1. ( 6 ) IT is no doubt true that the impugned order is a non-speaking order. But what are the reasons that prompted the court below to pass such a non-speaking order may be noticed. The court below upon taking up the application filed by respondent No. 6 for impleadment of the petitioner as defendant no. 6, issued notice to the petitioner, and the petitioner in spite of receiving the notice and in spite of being granted sufficient time and opportunity to file counter, has failed to file the counter, and in those circumstances, the court below upon hearing respondent No. 1, passed the impugned order allowing the application filed by respondent No. 1 seeking impleadment of the petitioner as defendant no. 6 to the suit. 6 to the suit. Had the petitioner filed his counter to the application opposing his impleadment as defendant No. 6 to the suit, there would have been occasion for the court below to deal with contentions raised therein and pass a speaking order, but in the absence of any counter filed by the petitioner opposing his impledment as defendant No. 6, he cannot be justified to contend that the court below has passed a non-speaking order. Inasmuch as there was no resistance to the impleadment of the petitioner as defendant No. 6 to the suit, the court below upon hearing the learned counsel for respondent No. 1, allowed the application. The petitioner having not filed counter cannot blame the court below for not passing a speaking order. In that view of the matter, no exception can be taken to the impugned order, though it is a non-speaking one. ( 7 ) BE that as it may, though the petitioner contends that he is not a necessary and proper party to the suit, the acts and conduct of the petitioner reflect otherwise. The petitioner admittedly entered his appearance in the suit, filed his written statement and also contested the application I. A. No. 3039 of 2002 filed by respondent No. 1 against him, and against the dismissal of the said application, he had also filed a caveat petition before this court. Though the petitioner contends that he has not purchased the properties belonging to the partnership firm, and he has nothing to do with the alleged partnership firm, the same is disputed, and it is stated by respondent No. 1 that the petitioner with a view to bail out respondent Nos. 2 and 3 from financial difficulties, had deposited the loan to the account of the partnership firm, in the dispute that is pending before the Debts recovery Tribunal. The manner in which the petitioner proceeded to contest the suit and other applications go to show that he is a proper and necessary party to the suit, and more so when it is the specific contention of respondent No. 1 that the properties purchased by the petitioner constitute the properties of the partnership firm, and the court below had rightly allowed the application filed seeking his impleadment as defendant No. 6 to the suit. ( 8 ) NOW coming to the contention of the petitioner that inasmuch as the alleged partnership deed is not properly stamped, the same cannot be looked into, and likewise the connection of the petitioner inasmuch as the partnership firm is an unregistered one, having regard to the provisions of Section 69 of the Indian Partnership Act, 1932, no proceeding can be initiated by or on its behalf against a third party, are concerned, i am of the opinion that they being matters of evidence have to be adjudicated at the final hearing of the suit, and they can certainly not be gone into in an ap plication filed for impleadment of a proper and necessary party to the suit. ( 9 ) THE Court below by allowing the application filed by respondent No. 1 seeking impleadment of the petitioner as defendant no. 6 to the suit cannot be said to have assumed a jurisdiction not vested in it or has exercised the jurisdiction in a manner not permitted by law, resulting in grave injustice and failure of justice to the petitioner, warranting interference by this court in exercise of its supervisory jurisdiction under article 227 of the Constitution of India. ( 10 ) THE C. R. P. is devoid of any merit, and the same is accordingly dismissed. No costs.