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2017 DIGILAW 1517 (BOM)

Girijashankar v. State of Maharashtra

2017-07-27

B.P.DHARMADHIKARI, R.B.DEO

body2017
JUDGMENT : R.B. DEO, J. 1. Heard Shri M.G. Bhangde, learned Senior Counsel with Shri S. Tapadia, learned Counsel for the petitioner, Shri A.V. Palshikar, learned Assistant Government Pleader for respondent 1 to 3 and Shri S. Alaspurkar, learned Counsel for respondent 4. 2. An inter se dispute between two partners, Shri Girjashankar Balaji Jaiswal and Shri Shriram Bhaiyalal Jaiswal, who are now no more and are being represented by their respective legal heirs, has reached this Court in the present letters patent appeal. At stake is a Country Liquor License in Form CL-III. 3. The license was granted in favour of respondent 4 Shri Shriram Bhaiyalal Jaiswal in the year 1973. Shri Shriram Jaiswal and appellant - Girijashankar Jaiswal entered into a Partnership-Deed dated 30.03.1979, which was recognized by the State Excise Department pursuant to which in the year 1981, the license came to be issued in the joint names of Shri Shriram Bhaiyalal Jaiswal and Shri Girijashankar Balaji Jaiswal. 4. By an order dated 06.05.1998, the Collector, Amravati, was pleased to order the deletion of the name of Shri Shriram from the said license. This order was challenged before the Commissioner, State Excise, in Appeal 150 of 1998. The Commissioner, State Excise by an order dated 11.12.1998, was pleased to confirm the deletion order passed by the Collector. Shri Shriram Jaiswal approached the Hon'ble Minister under Section 138 of the Maharashtra Prohibition Act, 1949 (hereinafter referred to as the Act) and the proceedings culminated into an order dated 16.12.1999, by and under which the Hon'ble Minister set aside the orders of the Collector and the Commissioner, by which the name of Shri Shriram Jaiswal was directed to be deleted. This order of the Hon'ble Minister was assailed before the learned Single Judge in Writ Petition 2810 of 2000, which is dismissed by the impugned order dated 24.10.2008. It is this order of the learned Single Judge, which is under challenge in the present appeal. 5. The facts which are relevant for determination of the issue involved, are few and mostly undisputed and we shall be adverting thereto whenever necessary at a later stage in the judgment. 6. Shri Bhangde, learned Senior Counsel for the appellant raised two contentions before us. The first contention is that the order impugned is unsustainable and falls foul of the doctrine of merger. 6. Shri Bhangde, learned Senior Counsel for the appellant raised two contentions before us. The first contention is that the order impugned is unsustainable and falls foul of the doctrine of merger. He has taken us through the memo of revision dated 16.12.1999 preferred by respondent 4 before the Hon'ble Minister and has invited our attention to the absence of a specific challenge to the order of the Commissioner in the memo of revision. The learned Senior Counsel points out that the only reference to the order of the Commissioner in the memo of revision is in paragraph 3 and in the entire memo of revision, there is no ground of challenge to the order of the Commissioner. He urges that even the prayer clause of the memo of revision, does not make a reference much less seeks a relief qua the order of the Commissioner. 7. The learned Senior Counsel further urges that the view taken by the learned Single Judge that the order of the Hon'ble Commissioner is in exercise of suo motu revisional power, is erroneous and is a view which militates against the settled legal position. He contends that suo motu exercise of revisional or review powers, has to be brought to the notice of the parties to the proceedings and that in any event it must be asserted by the authority exercising such powers that recourse has been taken to suo motu powers. The next contention of learned Senior Counsel is that even on facts, the view taken by the Hon'ble Minister, which is confirmed by the learned Single Judge, is unsupported by the material on record and cannot, therefore, sustain the scrutiny of law. He urges that a finding of fact is recorded by the Collector, the Commissioner and also by the Hon'ble Minister that respondent 4 herein neither participated in the business carried on under the license nor did he receive any share of profit therein. He further urges that separate applications seeking deletion of name of respondent 4 - Shri Shriram Jaiswal were made by Shri Shriram Jaiswal and Girijashankar Jaiswal. Pursuant to the said applications, their statements were recorded in the year 1983 by the Inspector in the office of the Superintendent of State Excise which reveal that Girjashankar had expressed his unwillingness to continue as a partner. Pursuant to the said applications, their statements were recorded in the year 1983 by the Inspector in the office of the Superintendent of State Excise which reveal that Girjashankar had expressed his unwillingness to continue as a partner. The learned Senior Counsel urges that the finding of fact recorded by the Collector and the Commissioner could not have been interfered with by the Hon'ble Minister in view of the well recognized limitations of exercise of revisional jurisdiction. 8. Shri Palshikar, learned Assistant Government Pleader supported the order of the Hon'ble Minister. 9. Shri Alaspurkar, learned counsel appearing on behalf of respondent 4 (now through his legal heirs) urges that the doctrine of merger has no relevance much less applicability to the facts of the present appeal. He urges that a holistic reading of the entire memo of revision will bring to fore the intent to also challenge the order of the Commissioner. He submits that the memo of revision may have been unhappily drafted, however, that the fact that there is a reference to the order of the Commissioner in the memo of revision and the fact that relief is sought against the order of Prohibition Officer and the Collector would inherently imply and include a challenge to the order of the Commissioner. He urges, in the alternative, that even if it is assumed arguendo that there was no challenge to the order of the Commissioner in the revision before the Hon'ble Minister, the order made by the Hon'ble Minister would be an order in exercise of suo motu revisional powers under Section 138 of the Act. He urges that undisputedly the Hon'ble Minister did possess suo motu revisional powers under Section 138 of the Act and that 'State' not being a natural person, has to exercise suo motu revisional powers on the basis of information received from any source and that the application moved by respondent 4 before the Hon'ble Minister would be one such source. He urges that no fault can be found with the reasoning of the learned Single Judge that even if the order of the Commissioner was not challenged, the order of the Hon'ble Minister can be considered to be an order made in exercise of suo motu revisional powers. 10. We may now deal with the first contention of Shri Bhangde, learned Senior Counsel. 10. We may now deal with the first contention of Shri Bhangde, learned Senior Counsel. The doctrine of merger is neither a doctrine of the Constitutional law nor is recognized by the statutory law. The doctrine of merger is a product of the common law and the juristic justification is the principle that there cannot be in existence more than one operative order or decision on the same subject at the same time. 11. The Hon'ble Supreme Court in Kunhayammed & Ors. v. State of Kerala and Anr., AIR 2000 SC 2587 - explains the doctrine of merger to be a common law doctrine founded on the principle of propriety in the hierarchy of justice delivery system. The doctrine of merger would apply not only to judicial fora but also to quasi-judicial authorities and tribunals. It would be apposite to refer to the observations of the Hon'ble Supreme Court in the said judgment in paragraphs 12 and 43 of the report which read thus: "12. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject - matter at a given point of time. When decree or order passed by inferior Court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, through the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior Court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior Court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the Court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject matter of challenge laid or which could have been laid shall have to be kept in view. "43. We may look at the issue from another angle. The Supreme court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. "43. We may look at the issue from another angle. The Supreme court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reverse or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage. Obviously that order cannot also be affirm at the SLP stage. To sum up our conclusions are: (i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverse or affirms the decision put in issue before it, the decision by the sub-ordinate forum merges in the decision by the superior forum and it is the later which subsists, remains operative and is capable of enforcement in the eye of law. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stage. First stage is upto the disposal of prayer for Special Leave to file an appeal. The Second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal. (iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the contend of subject matter of challenge laid or capable of being laid shall be determinative of the incapability or merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment - decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore, be applied to the former and not to the latter. (iv) An order refusing special leave to appeal may be a non speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. (iv) An order refusing special leave to appeal may be a non speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to how the appeal being filed. (v) If the order refusing leave to appeal is a speaking order, that is gives reason for refusing the grant of leave, then the order has two implication. Firstly, the statement of law contend in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the supreme court which would bind the parties thereto and also the Court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex court of the Country. But, this does not amount to saying that the order of the Court, tribunal or authority below has stood merge in the order of the Supreme Court rejecting Special Leave Petition or that the order of the Supreme Court is the only order binding as res-judicata. In subsequent proceedings between the parties. (vi) Once leave to appeal has been granted an appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vii) on an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court, the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub rule (I) of Rule (1) of Order 47 of the C.P.C." In Gojer Brothers (P) Ltd. v. Shri. Ratan Lal Singh, AIR 1974 SC 1380 the juristic justification of doctrine of merger is enunciated thus: "The juristic justification of the doctrine of merger may be sought in the principle that there cannot be, at one and the same time, more than one operative order governing the same subject-matter. Therefore, the judgment of an inferior Court, If subjected to an examination by the superior Court, ceases to have existence in the eye of law and is treated as being superseded by the judgment of the superior Court. In other words, the judgment of the inferior Court loses its identity by its merger with the judgment of the superior Court." We may also fruitfully refer to a Seven Judges judgment of the Hon'ble Supreme Court in S.S. Rathore Vs. State of Madhya Pradesh reported, AIR 1990 SC 10 , which inter alia holds that there is no legal justification to make any distinction between Court and Tribunals as regards applicability of doctrine of merger. The cause of action must be taken to arise not from the date of original adverse order but on the date when the order of the higher authority where statutory remedy is provided. The Seven Judges judgment of the Hon'ble Apex Court has applied the doctrine of merger to decision of the departmental tribunals. It is, therefore, well settled, that the doctrine of merger would apply with full vigor to orders of proceedings not only of the Courts but also to quasi-judicial authorities and Tribunals. It is equally well settled, that for the applicability of the doctrine of merger, no distinction can be made between an order of confirmation and an order of modification or reversal. 12. We may not proceed to examine the contention of the learned Senior Counsel that the order of the Hon'ble Minister is liable to be set aside on the short ground that in the absence of the challenge to the order of a Commissioner, the order of the Hon'ble Minister is inconsistent with and militates against the doctrine of merger. We have given our consideration to the submission of the learned counsel Shri. Alaspurkar who made an valiant attempt to persuade us to hold that although the memo of revision is not happily worded, the intent to also challenge the order of the Commissioner is manifest and writ large on the face of the pleadings. We are afraid, we are not in a position to accept the said submission. The only reference to the order of the Commissioner in the memo of revision is in paragraph 3 of the memo. The said reference is to a factual position that the order of Collector was challenged before the Commissioner. We are afraid, we are not in a position to accept the said submission. The only reference to the order of the Commissioner in the memo of revision is in paragraph 3 of the memo. The said reference is to a factual position that the order of Collector was challenged before the Commissioner. However, a perusal of the prayer clause would reveal that the order of Commissioner was not challenged and no relief was sought qua the said order. We have further given due consideration to the entire memo of revision and having done so, we are not in a position to hold that there was any challenge whether explicit or implicit to the order of Commissioner. Shri Bhangde, learned Senior Counsel invited our attention to the written submissions placed on record before the Hon'ble Minister in response to the notice issued to the appellant. He would further contend that a specific submission was made in the written submissions challenging the maintainability of the revision on the ground that the order of the Commissioner has not been challenged. It is unfortunate, that despite the said objection, the respondent 4 took no steps to amend the memo of revision and to incorporate an appropriate challenge to the order of the Commissioner. We are therefore, inclined to agree with the contention of the learned Senior Counsel Shri. Bhangde that the Hon'ble Minister's adjudicatory order falls foul of the doctrine of merger. We are also not in a position to accept the contention of learned Advocate Shri. Alaspurkar that in the absence of any prejudice it would not be permissible and at any rate would not be appropriate to invoke the doctrine of merger. The raison d'etre of the doctrine of merger is that there ought not to be more than one operative and enforceable order governing the same subject matter at the same time. Such being the juristic justification of the doctrine, we are not in a position to accept the submission of the learned Counsel Shri. Alaspurkar that the doctrine of merger would have applicability only if a prejudice is demonstrated. 13. Faced with the obstacle posed by the doctrine of merger, the learned Counsel Shri Alaspurkar would contend that the view taken by the learned Single Judge that the order of the Hon'ble Minister could be considered to be an exercise of suo motu revisional powers, is unexceptionable. 13. Faced with the obstacle posed by the doctrine of merger, the learned Counsel Shri Alaspurkar would contend that the view taken by the learned Single Judge that the order of the Hon'ble Minister could be considered to be an exercise of suo motu revisional powers, is unexceptionable. He submits that the suo motu revisional or review powers vested in any authority would have to be exercised on the basis of some material or information brought to the notice of the authority. State is not a natural person and therefore, the material or information warranting exercise of revisional powers must be necessarily brought to the notice of the State/its officers and one such mode is an application which may be moved even by the aggrieved party. We have no quarrel with the proposition that on an application by an aggrieved party, here respondent 4, the Minister could have exercised suo motu revisional powers. However, the difficulty in accepting the submission of learned Counsel Shri. Alaspurkar is that it is not the stand of either the authority or of the State before the learned Single Judge, that the Hon'ble Minister has exercised suo motu revisional powers. It is further not in dispute that the Hon'ble Minister did not put the parties on notice that he was inclined to exercise suo motu revisional powers. We may fruitfully make a reference to a judgment of the Hon'ble Apex Court in M/s. D.N. Roy and Ors v. State of Bihar & Ors., AIR 1971 SC 1045 and in particular to paragraphs 6 & 7 which read thus: "6. The impugned order of the Central Government does not show that it was made in the exercise of its suo-motu power. It is purported to have been made on the basis of the application made by the 5th respondent under Rule 54 of the Mineral Concession Rules, 1960. In paragraph 3 of this order it says "in view of the position explained above the Central Government in exercise of their revisionary power conferred by Rule 55 of Mineral Concession Rules, 1960 and all other powers enabling in this behalf hereby set aside the order of the State government contained in their letter No. A/MM/4032/62-1789 M dated 31.3.1962. "7. It is true that the order in question also refers to "all other powers enabling in this behalf". "7. It is true that the order in question also refers to "all other powers enabling in this behalf". But in its return to the writ petition the Central Government did not plead that the impugned order was passed in exercise of its suo-motu powers. We agree that if the exercise of a power can be traced to an existing power even though that power was not purported to have been exercised, under certain circumstances, the exercise of the power can be upheld on the strength of an undisclosed but undoubted power. But in this case the difficulty is that at no stage the Central Government intimated to the appellant that it was exercising its suo-motu power. At all stages it purported to act under Rules 54 and 55 of the Mineral Concession Rules, 1960. If the Central Government was intend to exercise its suo-motu power it should have intimated that fact as well as the grounds on which it proposed to exercise that power to the appellant and given him an opportunity to show cause against the exercise of suo-motu power as well as against the grounds on which it wanted to exercise its power. Quite clearly the Central Government had not only intimated to the appellant the grounds mentioned in the application made by the 5th respondent but also the comments of the State Government, the appellant had adequate opportunity to put forward his case. This conclusion in our judgment is untenable. At no stage the appellant was informed that the Central Government proposed to exercise it suo motu power and asked him to show cause against the exercise of such a power. Failure of the Central Government to do so, in our opinion, vitiates the impugned order." The law enunciated by the Hon'ble Supreme Court mandates that the authority inclined to exercise suo motu revisional powers must intimate to the parties its intent and the person must be asked to show cause against exercise of such suo-motu power. M/s. D.N. Roy and Ors v. State of Bihar & Ors. in AIR 1971 SC 1045 is followed by the Supreme Court Shahabad Cooperative Sugar Mills Ltd. Vs. Spl. Secretary to Government of Haryana Corporation & Ors., (2006)12 SCC 404 and in paragraph 26, the Hon'ble Supreme Court observes that if suo motu power is to be exercised, it has to be stated so. in AIR 1971 SC 1045 is followed by the Supreme Court Shahabad Cooperative Sugar Mills Ltd. Vs. Spl. Secretary to Government of Haryana Corporation & Ors., (2006)12 SCC 404 and in paragraph 26, the Hon'ble Supreme Court observes that if suo motu power is to be exercised, it has to be stated so. With the assistance of the learned Counsel, we have given due consideration to the pleadings and the order of the Hon'ble Minister. Learned Senior Counsel Shri. Bhangde is right in contending that the appellant was neither put on notice that the Hon'ble Minister was inclined to exercise suo motu power nor did the authority or the State Government assert even before the learned Single Judge that the Hon'ble Minister has exercised suo motu revisional power. With deepest respect to the view taken by the learned Single Judge, we are not in a position to agree with the finding that the Hon'ble Minister had exercised suo motu power. At this stage, the learned Counsel Shri. Alaspurkar prays for liberty to amend the memo of revision. We are afraid that the submission deserves to be noted only to be rejected. 14. Shri S.S. Alaspurkar, learned Counsel relies on the judgment of Kuldeep Kumar Dubey and Ors. v. Ramesh Chandra Goyal (D) Th. Lrs., AIR 2015 SC 1135 , to contend that mere error, defect or irregularity in pleadings not affecting merits or jurisdiction of the Court ought not to be a ground for reversal of an order or decree. Perusal of the judgment reveals that the suit was held not maintainable in view of defect of formal nature in description of the parties. It is in these facts, that the Hon'ble Supreme Court held that an error not affecting the merits or jurisdiction could have been corrected by the Court under Order I Rule 10 of the Civil Procedure Code and that the appellate Court was not justified in reversing the decree of the trial Court on a technicality, which did not affect the merits of the case. Shri S.S. Alaspurkar, learned Counsel also relies on the judgment of Syed Dastagir v. T.R. Gopalkrishna Setty, AIR 1999 SC 3029 , to contend that pleadings should be read as a whole to gather the true spirit behind the plea. Shri S.S. Alaspurkar, learned Counsel also relies on the judgment of Syed Dastagir v. T.R. Gopalkrishna Setty, AIR 1999 SC 3029 , to contend that pleadings should be read as a whole to gather the true spirit behind the plea. He further relies on the judgment of Everest Apartments Co-operative Housing Society Ltd., Bombay v. State of Maharashtra and others, AIR 1966 SC 1449 , to contend that a revisional power ought to be construed liberally and a party is not prohibited from inviting the attention of the Government to facts, which manifest that a glaring injustice has been done or a patently illegal order is made. We do not, and indeed cannot, have any difficulty in accepting the proposition of law enunciated by the Hon'ble Supreme Court. However, we have already held that failure to challenge the appellate order of the Commissioner, which is an order passed in statutory appeal under Section 137 of the Act, attracts the doctrine of merger and such failure cannot be compared with a technical or formal error or deficient pleadings, which was under consideration in the two judgments of the Hon'ble Supreme Court namely, (1) Kuldeep Kumar Dubey and Ors. v. Ramesh Chandra Goyal (D) Th. Lrs., and (2) Syed Dastagir v. T.R. Gopalkrishna Setty. The third judgment of Everest Apartments Co-operative Housing Society Ltd., Bombay v. State of Maharashtra and others has no application to the factual matrix inasmuch as the existence of power with the Hon'ble Minister to suo motu revise any order of the subordinate authorities and the entitlement of the respondent 4 to bring the necessary information to the notice of the Hon'ble Minister even by moving an application under Section 138 of the Act, is not in dispute. We may reiterate, that in view of the law settled by the Hon'ble Supreme Court, the Hon'ble Minister was not only duty bound to put the parties on notice that a suo motu exercise of power was intended, further the authority and at any rate the State before the learned Single Judge ought to have asserted that suo motu revisional power was indeed invoked and exercised. In any view of the matter, we are inclined to hold that order of the Hon'ble Minister is hit by the doctrine of merger. 15. In any view of the matter, we are inclined to hold that order of the Hon'ble Minister is hit by the doctrine of merger. 15. The next contention of the learned Senior Counsel Shri M.G. Bhangde is that the orders impugned are vulnerable even on facts. He would further urge that the Partnership-deed dated 30-3-1979 was taken note of by the Collector, the Commissioner and the Hon'ble Minister and was placed on record before the learned Single Judge. He invites our attention to Clause 8 of the Partnership-deed, to contend that in view of the said clause, the legal heirs of Shriram Bhaiyalal Jaiswal (respondent 4) do not have any right to be inducted as partners and that such right is expressly reserved only in favour of the legal heirs of the appellant Girjashankar Jaiswal. He would urge that the findings of fact recorded by the Collector and the Commissioner were based on material on record and in view of the well recognised limits of revisional jurisdiction, the Hon'ble Minister was precluded from interfering with a view which was an imminently plausible view. Shri M.G. Bhangde, learned Senior Counsel contends that apart from the fact that the statements recorded in the year 1983 manifest the unwillingness of respondent 4 to continue as partner, other circumstances like the admitted non-participation in the business and non-sharing of the profits thereof would indicate that respondent 4-Shriram Bhaiyalal Jaiswal did a volte-face in the year 1994. He would further urge that even on facts the direction to delete the name of respondent 4 from the licence issued by the Collector and confirmed by the Commissioner, is unexceptionable and the Hon'ble Minister committed a serious error in upsetting the finding of fact in revisional jurisdiction. Per contra, Shri S.S. Alaspurkar, learned Counsel would urge, while not disputing that respondent 4 was not participating in the business from 1983 onwards and was not receiving any share in the profit, that these circumstances, are not conclusive. He contends that respondent 4 was illegally deprived of the right of participation and share in profits and certain blank papers have been misused by appellant to make out a case for deletion of name of respondent 4 from the licence. Learned Counsel contends that respondent 4 categorically disputed his authorship of the application for deletion pursuant to which the Collector ultimately ordered deletion. Learned Counsel contends that respondent 4 categorically disputed his authorship of the application for deletion pursuant to which the Collector ultimately ordered deletion. Both the learned Counsel have taken us through the material on record and have advanced contentious submissions on factual aspects of the controversy. In view of the course, which we propose to adopt, we refrain from making any observation on the merits of the rival contentions on facts. 16. In the light of the view which we have taken on the applicability of the doctrine of merger and the nature of the order of the Hon'ble Minister, we are inclined to quash and set aside the order of the Hon'ble Minister dated 05-07-2000 and the judgment and order of the learned Single Judge dated 24-10-2008 in Writ Petition 2810/2000. The deletion of the name of respondent 4 from the licence is not decisive of the rights and obligations under the Partnership-deed. The order of deletion shall be subservient and must yield to any determination by the competent civil Court, in the event, either of the parties intend to approach the civil Court for appropriate relief. Every contention relating to the factual dispute between the parties relating to the licence in question including disputes relating to the partnership, is left expressly open. We direct that the parties shall maintain status quo for a period of three months from the date of this judgment. The parties are at liberty to approach the civil Court within the said period, if so advised, and shall abide by further orders of the civil Court. The civil Court shall not be influenced, directly or indirectly, by any observation made in this judgment. With these observations and directions, we allow the appeal. No order as to costs.