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2015 DIGILAW 580 (CAL)

Tapas Hazra v. Subir Mullick

2015-07-16

SHIVAKANT PRASAD

body2015
JUDGMENT SHIVAKANT PRASAD, J. 1. The instant petition is directed against the order being No. 21 dated 10th March, 2014 passed by the Learned Civil Judge (Junior Division), 6th Court, Howrah in connection with Title Suit No. 37 of 2013. 2. The petitioners case is that during the pendency of the suit the petitioners as defendants filed an application under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure and under Section 69 of The Indian Partnership Act for rejection of the plaint. 3. The opposite party being the plaintiff contested the application by filing a written objection. 4. It is contended on behalf of the petitioners that the opposite party and the petitioner No. 1 being the defendant No. 1 were the partners of partnership firm under the name and style of M/s. Wing Guard Nursing Home which carries on the business of a nursing home situated at the suit premises and as such, plaintiff has no legal right to file the suit to enforce his right arising from a contract against any third party unless the firm is registered and the person suing has been shown in the Register of firms as partner in the firm as mentioned under Section 69 of the Partnership Act. 5. It is argued on behalf of the petitioner that the learned Trial Judge failed to understand the scope and ambit of Section 69 of the Indian Partnership Act, 1932 which clearly says that no suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on a behalf of any persons suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the register of firms as a partner in the firm and no suit to enforce a right arising from a contract shall be instituted in any court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the register of firms as partners in the firm. 6. 6. Accordingly, the petitioner has prayed for setting aside the order impugned on the grounds that the learned Judge has erred-in-law and in fact in not appreciating that the schedule of the plaint consist of the partnership firm and any relief sought on the schedule property is actually a relief sought on the partnership firm which is admittedly an unregistered one and under Section 69 of the Indian Partnership Act, 1932, no relief can be claimed against any other partner or any third party without it being registered. 7. It would be profitable to reproduce the provisions of Section 69 of the Indian Partnership Act, 1932, which enjoins as under:- “69. Effect of non-registration — (1) No suit to enforce a right arising from a contract or conferred by this Act, shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. (2) No suit to enforce a right, arising from a contract, shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. (3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect— (a) The enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realize the property of a dissolved firm. (b) The powers of an official assignee, receiver or Court under the Presidency Towns Insolvency Act, 1909, or the Provincial Insolvency Act, 1920, to realize the property of an insolvent partner.” 8. It is a principle of law that — Section 69 prohibits enforcement of rights in respect of unregistered firm. (b) The powers of an official assignee, receiver or Court under the Presidency Towns Insolvency Act, 1909, or the Provincial Insolvency Act, 1920, to realize the property of an insolvent partner.” 8. It is a principle of law that — Section 69 prohibits enforcement of rights in respect of unregistered firm. Sub-section (3) (a) carves out three exceptions to sub-sections (1) and (2) and also to the main part of sub-section (3) of section 69, namely (1) the enforcement of any right to sue for the dissolution of firm; (2) for accounts of the dissolved firm; and (3) any right or power to realize the property of the dissolved firm. Having excluded from the embargo created by the main part of sub-section (3) or sub-sections (1) and (2) of section 69, the right to sue would not again be construed to engulf the exceptions carved out by sub-section (3) or sub-section (4) of Section 69. The object appears to be that the partnership having been dissolved or has come to a terminus, the right of the parties are to be worked out in terms of the contract of the partnership entered by and between the partners and the rights engrafted therein. This is what has been observed in case of Premlata vs. Ishar Dass Chaman Lal, AIR 1995 SC 714 . It is also a clenched position of law that the bar of section 69 does not extend to suits not one that is based on a subsequent or different cause of action. It is unequivocally understood from the meaningful reading of the plaint that the suit is based on a different cause of action, notwithstanding the plaint schedule mention about the situation of Wing Guard Nursing Home at the suit property. 9. A reference to a decision of Sopan Sukhdeo Sable vs. Assistant Charity Commr. 2004 (3) SCC 141 is made wherein it has been held that for the purpose to decide application under Order 7 Rule 11(a) and (d) the averment in the plaint are germane, the pleas taken in the written statement would be wholly irrelevant at that stage. Instead, the duty cast on the court is to reject the plaint when the same is hit by any of the infirmities under Clause (a) to (d) even without intervention of the defendants. 10. Instead, the duty cast on the court is to reject the plaint when the same is hit by any of the infirmities under Clause (a) to (d) even without intervention of the defendants. 10. It is observed by the Hon’ble Apex Court as under: “The real object of Order 7 Rule 11 is to keep out of courts irresponsible law suits. Therefore, Order 10 CPC is a tool in the hands of the courts; and by resorting to it and by a searching examination of the party, in case the court is prima facie persuaded of the view that the suit is an abuse of the process of the court, in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 can be exercised. The basic question to be decided while dealing with an application filed under Order 7 Rule 11 (a) CPC is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get around Order 7 Rule 11. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and merit-less in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11(a) taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. It is true that by ingenious drafting a cause of action in the nature of red herrings cannot be brought into the judicial arena.” 11. The opposite party as plaintiff contesting application under Order 7 Rule 11 CPC made averment in paragraph 11 that he filed the suit in his individual capacity as a lessee who could not afford silently to watch the right as a lessee getting infringed and that the defendant no.1 was also a co-lessee along with the plaintiff and just because the plaintiff and the defendant are having a relation of business partners, the present suit does not partake the character of a suit completed under Section 69 of the Partnership Act, 1932. It would appear from the averments made in paragraph 20 of the written statement filed by the petitioner that the defendant no. 1 and 2 Smt. Mira Rani Hazra the mother of the defendant no.1 was previously owner of the suit property by purchase who by registered deed of lease dated 1.10.1986 leased out the suit property to the plaintiff and the defendant no. 1 for 50 years at the monthly rental of Rs. 500/-. As the said defendant no. 2 by a registered deed of gift dated 27.7.2001 gifted the suit property with the existing continuation of the said lease of suit property to the defendant no.1 and as such by said registered deed of gift the defendant no.1 has become sole owner of the suit property. It is pointed out that the plaintiff and the defendant no. 1 by a registered deed of surrender of lease dated 27.3.2002 surrendered their lease hold right in respect of suit property to the defendant no. 1. So, the plaintiff has no right, title and interest in the suit property who has intentionally suppressed the aforesaid facts. 12. The plaint reveals that the plaintiff/opposite party has prayed for a decree for permanent injunction against the defendant no. 1 and his men, agent, servant from transferring, encumbering letting out, inducting third party in the lease hold premises in respect of which the plaintiff is a lessee. The plaintiff/opposite party also prayed for a decree of permanent injunction from creating any sort of disturbance, interference in respect of entrance and exit of the plaintiff in the schedule property and free movement and access thereupon. Therefore, the suit cannot be held to be barred by the provision of Section 69(1) & (2) of the Partnership Act. 13. Issue as to whether the lease deed was surrendered in favour of the mother of the defendant no. 1 and whether plaintiff/opposite party occupies his position as a licensee in respect of the suit premises are the issues to be decided at the trial according to the evidence to be adduced by the parties of the suit. 13. Issue as to whether the lease deed was surrendered in favour of the mother of the defendant no. 1 and whether plaintiff/opposite party occupies his position as a licensee in respect of the suit premises are the issues to be decided at the trial according to the evidence to be adduced by the parties of the suit. In this view of the matter, the learned Judge has rightly rejected the application under Order 7 Rule 11 of the CPC read with Section 151 CPC with the observation that the plaintiff instituted the suit in his individual capacity to protect his lawful rights as a lessee and not to enforce a right arising out of a contract falling within the ambit of Section 69 of the Indian Partnership Act. 14. In the context above, the application under Article 227 of the Constitution of India is dismissed, however, without any order as to costs. 15. The Office to supply Photostat certified copy of this order to applicant, if applied for, on urgent basis.