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2008 DIGILAW 465 (ORI)

SAMIR KUMAR DASGUPTA v. BANSIDHARA BEHERA

2008-06-23

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - In this revision, the Defendants-Petitioners have challenged the order dated 17.07.2006 passed by the learned Civil Judge (Senior Division), Angul in Civil Suit No. 73 of 2002 rejecting the application filed by them under Order 7 Rule 11 of the CPC for rejection of the plaint. 2. The brief facts of the case, as narrated in the petition, are as follows: The present opposite parties as Plaintiffs filed the suit for declaration of title, confirmation of possession and permanent injunction in the Court of the learned Civil Judge (Senior Division), Angul. Their specific case was that they had joint timber business since 01.01.1979 and a partnership deed was registered on 16.03.1979 in the name and style of "Raghupati Timbers". In the village Panchayat, the parties mutually agreed to dissolve the partnership firm. With consent of all, on 09.11.1985 after settling the assets and liabilities, the partnership deed was dissolved and on the dissolution of the partnership it was agreed that the Plaintiffs would carry on timber business in the name and style of "Raghupati Timbers". As such, Plaintiffs are carrying on business over the disputed land as per the schedule given in the plaint as the owner thereof and they are in exclusive possession of the said property since 09.11.1985. Earlier, the present Petitioners as Plaintiffs filed a suit which was registered as M.S. No. 50 of 1989 against the opposite parties who were Defendants, in the Court of the learned Civil Judge (Senior Division), Angul for recovery of certain dues towards the business of joint partnership firm and the said suit was dismissed. 3. In the present suit, the Defendants-Petitioners filed an application under Order 7, Rule 11 of the CPC (hereinafter referred to as "the Code") for rejection of the plaint on the grounds that the suit is hit by Section 69(2) of the Indian Partnership Act (hereinafter referred to as ("the Act"), the Plaintiffs did not show any papers, they were not able to prove that the partnership firm has been duly registered under the Partnership Act and they have not paid proper Court fees. The opposite parties Plaintiffs filed their objection to the said petition on 4.7.2006 stating therein that the partnership firm was duly registered before the Sub-Registrar, Angul on 16.3.1979 and the firm was dissolved on 9.11.1985 followed by a Deed of Firm and Settlement of Accounts and they have filed the said registered deed in Money Suit No. 50 of 1989 which was marked as Ext.6. It was further stated therein that Defendant No. 1 in his examination-in-chief in Civil Suit No. 73 of 2002 had stated on affidavit that Defendants and Plaintiffs had a registered partnership firm in the name and style of "Raghupati Timbers" and in Money Suit No. 50 of 1989 present Defendant No. 1 as Plaintiff had deposed that Raghupati Timbers was a registered partnership firm and in view of such admission of Defendant No. 1, there was no doubt that the firm was a registered one and as the present suit was not filed for enforcement of any contract/agreement in respect of the partnership firm, the bar under the Section 69 of the Indian Partnership Act would not apply and the Defendants have no locus standi to challenge the sufficiency of Court fees, as "being the Plaintiffs they are at liberty to value the suit according to their own assessment. 4. As the suit is for declaration of title, confirmation of possession and permanent injunction, the trial Court by its order dated 17.7.2006 rejected the application filed under Order 7, Rule 11 of the Code on the ground that since the parties are not enforcing any right out of any contract, the bar u/s 69 of the Act is not applicable to the present suit. Besides that, on the basis of a decision in the case of Haribandhu Mohanty v. Harekrishna Behera and Ors. reported in Vol. XXIII (1957) 319, the trial Court accepted the valuation made by the Plaintiffs on the ground that this is a question between the Plaintiffs and the State. Since the State has not objected to it, the Defendants have nothing to say regarding payment of Court fees and the Defendants have filed the application at a belated stage i.e. at the time of hearing. Therefore, their application was rejected. 5. It appears from the assertions made by the parties that the Plaintiffs filed the suit for declaration of title, confirmation of possession and permanent injunction. Therefore, their application was rejected. 5. It appears from the assertions made by the parties that the Plaintiffs filed the suit for declaration of title, confirmation of possession and permanent injunction. Admittedly, the partnership firm was dissolved since 1985 on consent of the parties. In the present case, the Court has not decided anything in respect of the partnership firm or under the Indian Partnership Act. 6. So far as Court fee is concerned, it is vehemently argued by the learned Counsel for the Defendants-Petitioners that the Plaintiffs-opposite parties have grossly under-valued the suit. The Plaintiffs are the dominus litus. They have to value their suit. As per the said principle, the Plaintiffs have valued the suit and if the Defendants are disputing the said valuation, they can adduce evidence to that effect and that has to be decided later on at the time of hearing of the suit and while disposing of the suit if the Plaintiffs are found to be liable to pay more Court fees, the Courtcan pass order for realization of proper Court fees from them. The question regarding payment of Court fee is therefore left open to be decided at the time of hearing of the suit. 7. The impugned order dated 17.7.2002 passed by the learned Civil Judge (Senior Division), Angul in Civil Suit No. 73 of 2002 is accordingly modified. 8. With the aforesaid observation, the civil revision is disposed of. No costs.