Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 1294 (RAJ)

Hadmana Ram v. Taza Ram

2013-07-17

ARUN BHANSALI

body2013
JUDGMENT 1. - This appeal has been preferred by the appellant aggrieved against order dated 22.05.2013 passed by the learned trial court, whereby, his application under Order 39, Rule 1 and 2 CPC has been rejected. However, a direction was given to respondent No.1 to maintain the accounts of the firm till the disposal of the suit. 2. The facts in brief are that the appellant filed a suit for declaration, dissolution of partnership firm, rendition of accounts and injunction against the respondents, inter alia, with the averments that a mining licence was granted in his favour and he entered into a partnership with respondent No.1. The partnership firm did not do any effective work till 2002 and from 2002 onwards the excavation started on the licenced mine; on 18.09.2011, the appellant and his son went to the mining site and inquired about the excavated material; when respondent No.2 Thana Ram informed him that he has been inducted in the partnership firm and that the plaintiff has since retired from the partnership, licence stands transferred in the name of the partnership firm. The said information was claimed as a cause of action for filing the suit. Alongwith the suit an application seeking temporary injunction was also filed, inter alia, seeking injunction against the respondent Nos.1 and 2 from excavating from the mine and not to transfer the licence further. 3. The respondent Nos.1, 2 and 3 filed reply to the application seeking temporary injunction as well as written statement and allegations made in the plaint and the temporary injunction application were denied. 4. The learned trial court after hearing the parties came to the prima facie conclusion that whether the new partnership deed dated 04.05.2002 was a forged and concocted document is a disputed question, which could be decided after the trial. 4. The learned trial court after hearing the parties came to the prima facie conclusion that whether the new partnership deed dated 04.05.2002 was a forged and concocted document is a disputed question, which could be decided after the trial. The learned trial court relying on the First Information Report dated 20.10.2011 lodged by the plaintiff wherein it was indicated by the plaintiff that 'the mining licence was got transferred in the name of M/s Balaji Stone Suppliers (Partnership Firm) by respondent No.1 Taja Ram by taking him into confidence and by putting undue pressure on account of his relationship with him', came to the conclusion that the said aspect prima faice indicates the execution of the document and whether the same was on account of undue pressure or not would be decided during the course of the trial. 5. In view of the fact that the mining licence stood transferred in the name of the firm and the mine was admittedly being worked for more than nine years and the suit was filed after passage of nine years, the learned trial court did not find any prima facie case in favour of the plaintiff and the issue relating to balance of convenience and irreparable injuries were also held against him. Ultimately, the learned trial court while dismissing the application under Order 39, Rule 1 and 2 CPC passed the directions as indicated hereinbefore. 6. It is submitted by learned counsel for the appellant that the order impugned passed by the learned trial court is ex facie against the settled position of law regarding rendition of accounts of a partnership firm and the learned trial court was bound to issue injunction as sought; the mining licence was issued in favour of the plaintiff and the respondents have failed to place on record any consideration for transfer of the said licence and, therefore, the issue relating to prima facie case is in fact strongly in favour of the plaintiff and consequently the order impugned deserves to be quashed and set aside. 7. 7. Leaned counsel appearing for the respondents vehemently opposed the submissions made in this regard and submitted that the leaned trial court has thoroughly considered the issue and has given a categorical finding based on material available on record that the plaintiff has no prima facie case in his favour and the said finding does not require any interference by this Court. 8. I have considered the rival submissions made at the Bar. 9. The facts which emerges are that initially the mining licence was issued in the name of the plaintiff and the partnership was entered into between plaintiff and defendant No.1 for the purpose of exploiting the said mining licence. Further, nothing material happened on the said mine till the year 2002 and thereafter as far as plaintiff is concerned, he along with his son visited the mine in the month of September, 2011 only when it is claimed that the plaintiff came to know about the transfer of the licence in favour of the partnership firm and his alleged retirement from the partnership firm. The inaction of the plaintiff for a long period of nine years, which apparently has not been explained except to allege that he was trusting respondent No.1, and this is not even the case of the plaintiff that for all the nine years he was staying somewhere else than Jodhpur or that he came to visit the place after a passage of nine years. Further, this is not disputed that the parties are in relationship, therefore, not to talk or discuss about the partnership firm for a long period of nine years when admittedly the mine was duly exploited puts a question mark on the conduct of the plaintiff, therefore, in the facts and circumstances of the case, it cannot be said that the plaintiff was able to make out a prima facie case in his favour for grant of injunction as sought by him. 10. The learned trial court in the facts and circumstances of the case was, therefore, justified in dismissing the application filed by the plaintiff. 11. 10. The learned trial court in the facts and circumstances of the case was, therefore, justified in dismissing the application filed by the plaintiff. 11. However, it is not in dispute that the mining licence was initially granted in favour of plaintiff and even if the said licence stands transferred in the name of the firm, now when the present litigation is pending, in the facts and circumstances of the case, it would be just and proper and hence ordered that the firm and the partners respondent Nos.1 and 2 are restrained from further transferring the said mining licence during the pendency of the suit. 12. Further, the direction for maintaining the accounts issued by the trial court appears to be vague and, therefore, the same is modified to the extent that the respondent Nos.1, 2 and 3 shall maintain the accounts of the firm and would ensure that none of the records relating to accounts of the firm are destroyed/misplaced/lost by the said respondents during the pendency of the suit and the same shall be preserved by them during the pendency of the suit. 13. With the above further direction and modification of the order issued by the learned trial court, the appeal is disposed of. 14. However, any observations made by this Court during the course of the present order is only confined to examining the prima facie case of the plaintiff and shall not affect the final outcome of the suit.The stay application stands dismissed.Appeal Disposed Of. *******