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2013 DIGILAW 1170 (RAJ)

Prahladrai v. Ashok Kumar

2013-07-04

ARUN BHANSALI

body2013
JUDGMENT 1. - This revision petition has been filed by the petitioner aggrieved by order dated 20.05.2011 passed by the trial court rejecting his application under Order 7, Rule 11 CPC. 2. The facts in brief are that the respondent Nos.1 and 2 Ashok Kumar and Dungarmal filed a suit on 13.08.2007 seeking dissolution of a partnership firm M/s. Ruglal Thanduram, Sri Ganganagar and rendition of accounts. 3. An application was filed by the present petitioner defendant No.1 under Order 7, Rule 11 CPC, inter alia, on the ground that the suit for dissolution of a partnership firm can only be filed by a partner of the firm; neither of the plaintiffs was ever partner of the firm in the past or present which is clear from a bare reading of the plaint; Manohar Lal had retired in the year 1978 and Girdhari Lal had retired in the year 1963 well before their death and when said Manohar Lal and Girdhari Lal were not partners of the firm, the plaintiffs as their legal representatives cannot claim to be partners of the firm; under provisions of Section 9 CPC only suit of civil nature can be taken cognizance of by the Court and the plaintiffs have no right to file the suit. Ultimately, it was prayed that the suit was liable to be dismissed as barred under provisions of Order 7, Rule 11 (a) and (d) CPC. 4. It appears that after filing of the said application, the plaintiffs filed application under Order 23, Rule 1 CPC, inter alia, withdrawing the relief for dissolution of partnership firm. 5. When the application filed by the petitioner was being argued before the trial court, an oral submission appears to have been made on behalf of the plaintiffs that the suit clearly falls within the parameters of Section 37 of the Indian Partnership Act, 1932 ('Act') and, therefore, it cannot be said that the suit was not maintainable. 6. The trial court after hearing the parties, essentially on its coming to the conclusion that the suit was under Section 37 of the Act held that it cannot be said that the plaint does not disclose any cause of action. 6. The trial court after hearing the parties, essentially on its coming to the conclusion that the suit was under Section 37 of the Act held that it cannot be said that the plaint does not disclose any cause of action. While dealing with the issue relating to alleged non-disclosure of cause of action the Court also referred to the cause of action pleaded by the plaintiffs in para 8 of the plaint i.e. refusal by the defendants to render the account or show the account books. Ultimately, the application filed by the petitioner was dismissed. 7. It is submitted by learned counsel for the petitioner that the suit was ex-facie barred by limitation as according to the plaintiffs' submissions before the trial court, the suit was under Section 37 of the Act, which suit is governed by provisions of Article 106 of the Limitation Act, 1963. However, the trial court has failed to take into consideration the said aspect and has wrongly dismissed the application filed under Order 7, Rule 11 CPC. It was further submitted that the entire suit is based on the partnership deed dated 06.11.1953 and the claim that as successors of Manohar Lal and Girdhari Lal they are partners of the Firm, the deed nowhere provides for the successors automatically becoming partners on the death of the existing partners. It was also submitted that the document, which is referred in the plaint can very well be looked into while dealing with the application under Order 7, Rule 11 CPC for the purpose of elaboration of the plaint averments. 8. The learned counsel for the petitioner further vehemently questioned the power of the trial court to treat the plaint under Section 37 of the Act and submitted that a bare reading of the plaint clearly indicates that no such plea or averment was available in the plaint and, therefore, treating of the plaint under Section 37 of the Act itself is contrary to law. 9. The learned counsel further submitted that in fact the plaint was liable to be rejected as wholly vexatious and mala fide under Section 151 CPC as well. 10. 9. The learned counsel further submitted that in fact the plaint was liable to be rejected as wholly vexatious and mala fide under Section 151 CPC as well. 10. The learned counsel for the respondent-plaintiffs submitted that the arguments on limitation sought to be raised by the petitioner before this Court were never raised before the trial court and the application as filed under Order 7, Rule 11 CPC, does not even refer to the suit being time barred or any provision relating to the Limitation Act and, therefore, now it is not open for the petitioner to agitate this point for the first time without raising of such plea before the trial court. 11. I have considered the rival submissions made at the Bar and has gone through the application filed by the petitioner, plaint and partnership deed. 12. There is substance in the submission made by learned counsel for the respondent-plaintiffs that the petitioner did not point out any provision of law, by which, the plaint was claimed by him to be barred by law and the opposite party cannot be left to guess and speculate as to the provision the defendant wants to rely on for the purpose of claiming the plaint as 'barred by law'. 13. The provisions of Order 7, Rule 11 CPC can be invoked at any stage of the suit as held by Hon'ble Supreme Court in the case of Azhar Hussain v. Rajiv Gandhi, 1987 (Supp) SCC 93 . Further the aspect relating to limitation, if it is apparent on the face of the plaint and by bare reading of the averments contained in it, if it can be pointed out that the suit is ex facie barred by limitation then in that case the power under Order 7, Rule 11 CPC can be exercised by the trial court and the plaint can be rejected. 14. In view of the fact that the petitioner had not set out any specific provision/Article to Limitation Act claiming the plaint to be barred by limitation, the order passed by the trial court cannot be faulted and the same, therefore, does not call for any interference. 15. 14. In view of the fact that the petitioner had not set out any specific provision/Article to Limitation Act claiming the plaint to be barred by limitation, the order passed by the trial court cannot be faulted and the same, therefore, does not call for any interference. 15. However, it will be open for the petitioner to file fresh application setting out all the facts and indicating specific provision under which the plaint is claimed by it to be barred by law again before the trial court, if so advised. The petitioner would also be at liberty to question the claim of the plaintiffs to treat the plaint under Section 37 of the Act and question the maintainability of the suit as mala fide and vexatious. 16. If such an application is filed by the petitioner, the same shall be first dealt with by the trial court. The application, if any, be filed within a period of three weeks. A reply thereto would be filed by the plaintiffs within a period of three weeks thereafter and it is expected of the trial court to decide the said application within a period of four weeks thereafter. 17. In view of the above discussion and observations, the revision petition filed by the petitioner is dismissed with the liberty to file a fresh application as indicated hereinbefore. The interim orders dated 10.08.2011 and 25.07.2012 passed by this Court stand vacated.Petition Dismissed. *******