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2018 DIGILAW 234 (CAL)

Namita Jetty v. Andul Engineering Works

2018-02-08

HARISH TANDON

body2018
JUDGMENT : Harish Tandon, J. CAN 6378 of 2018 1. This is an application for restoration of the revisional application being CO 884 of 2017, which was dismissed for default on April 26, 2017. After perusing the averments made in the instant application, this Court finds that the petitioners were prevented by sufficient cause in not appearing on the fateful day when the revisional application was called on and dismissed for default. 2. The application for restoration being CAN 6378 of 2017 is allowed. 3. The revisional application being CO 884 of 2017 is restored to its original file and number. 4. By the consent of the parties, the revisional application is taken up for hearing. CO 884 of 2017 5. This revisional application is directed against an order date November 4, 2016 passed by the learned Civil Judge (Senior Division), Third Court, Howrah in Title Suit No. 56 of 2003 by which an application under Order 11 Rule 14 of the Code of Civil Procedure filed by the plaintiffs/petitioners is rejected and the identical application filed by the defendants/opposite parties is allowed. 6. The plaintiffs/petitioners filed a suit for dissolution of partnership business which is carrying on in the name and style of M/s. Andul Engineering Works with further declaration that the plaintiffs have 1/3rd share in the said partnership and, therefore, entitled to profits, assets and the goodwill therein. 7. The contesting defendants took a specific plea that the said partnership business commenced on the basis of a deed of partnership executed on April 1, 1964 between Nilmoni Jetty, Dulal Jetty and Gobindalal Jetty. It is not in dispute that the said deed of partnership reveals that the aforesaid three partners shall have equal shares in profit and loss of the said partnership firm. It is a specific case of the contesting defendants that the said Nilmoni took away all his shares and profits in the partnership business and have shown his intention not to continue the said business in partnership with the other partners. It is further averred that subsequent to the retirement/relinquishment of the rights by the Nilmoni in the said partnership business, the said partnership firm was reconstituted thrice and in fact, the present partners are running the said business in partnership. It is further averred that subsequent to the retirement/relinquishment of the rights by the Nilmoni in the said partnership business, the said partnership firm was reconstituted thrice and in fact, the present partners are running the said business in partnership. In other words, the contesting defendants deny the right and interest of the plaintiffs who claimed through said Nilmoni, who admittedly died in the year 1987. 8. Because of the specific defence taken in the written-statement, an application under Order 11 Rule 14 of the Code is filed by the plaintiffs seeking direction upon the defendants to produce the documents pertaining to the full and final settlement of the share of the said Nilmoni, three reconstituted partnership deeds and the documents relating to the accounts maintained by the existing partners of the partnership firm. Simultaneously, the contesting defendants also took out the identical application for direction upon the plaintiffs to produce the registered partnership deed executed between Nilmoni, Dulal and Gobindalal and also the birth certificate of Prolay Jetty. By the impugned order, the Trial Court rejected the application filed by the plaintiffs/petitioners and allowed the application filed by the contesting defendants. 9. It is submitted by Mr. Probal Kumar Mukherjee, the learned Senior Advocate, appearing for the plaintiffs/petitioners, that the Trial Court did not applied its judicial mind while passing the impugned order. According to him, the first partnership deed dated April 1, 1964 is within the possession of the contesting defendants, which would be evident from the fact that they annexed the same in a revisional application filed before this Court. The only difference which can be seen from the schedule appended to the application filed by the contesting defendants that they wanted the registered deed of partnership. It is further submitted that the said partnership deed was never registered and, therefore, the Court without recording its satisfaction over the existence of such registered partnership deed, committed error in allowing the said application. 10. It is now submitted that the second documents asked for by the contesting defendants relates to the birth certificate of Prolay Jetty, who is born on December 2, 1962 and at that point of time it was not mandatory to obtain the birth certificate. Mr. Mukherjee thus submits that his client would be able to produce the other statutory documents containing the date of birth of said Prolay Jetty. 11. Mr. Mukherjee thus submits that his client would be able to produce the other statutory documents containing the date of birth of said Prolay Jetty. 11. On the other hand, the learned Advocate appearing for the defendants/opposite parties submits that there is no infirmity in the impugned order and it is not obligatory upon them to produce the documents as asked for by the plaintiffs/petitioners at the nascent state of the suit. It is thus submitted that it is obligatory on the part of the contesting defendants to prove the facts pleaded in the written-statement in the trial and, therefore, those documents shall be tendered in evidence and the plaintiff will have ample opportunity to peruse the said documents. 12. At the very outset, this Court must record that the Trial Court has proceeded in a slipshod manner in dealing with the aforesaid application. Though the provisions contained under Order 11 Rule 14 of the Code is quoted in the impugned order yet its applicability appears to be improper. The aforesaid provision empowers the Court at any time during the pendency of the suit to order for production of any document on oath provided such document is in possession of the party to the suit and shall thereafter may deal with such documents. If the Court was of the view that it is not necessary to produce such documents before commencement of trial, such consideration must weigh to the application filed by the contesting defendants as well. There is no justification in rejecting the application filed by the plaintiffs/petitioners and allowing the application filed by the contesting defendants. The plaintiffs have volunteered to produce the documents as sought for by the contesting defendants with the caveat that there is no existence of a registered partnership deed entered into in the year 1964 and they are also not in possession of the birth certificate of Prolay Jetty as it was never issued by the competent authority. The plaintiffs/petitioners have further volunteered to produce the relevant documents containing the date of birth of Prolay Jetty issued by the appropriate authority, which in my opinion would cater the requirement of the contesting defendants. The birth certificate was sought with a avowed object to ascertain the date of birth of Prolay Jetty as the contesting defendants thinks that it may have some impact on the issues involved in the suit. The birth certificate was sought with a avowed object to ascertain the date of birth of Prolay Jetty as the contesting defendants thinks that it may have some impact on the issues involved in the suit. The date of birth can be ascertained from the other statutory documents issued by the statutory authorities and if documents are produced, it would sufficiently meet the query raised by the contesting defendants. Furthermore, It is a specific case of the plaintiffs/petitioners that the deed of partnership executed in the year 1964 was never registered with the registering authority nor incorporated in the register maintained by the Registrar of Firms. Apart from the same, there is no quarrel that the contesting defendants have annexed the copy of the said partnership deed in one of the revisional applications filed before this court and they are in possession of such deed. There is thus no necessity to produce the said documents by the plaintiffs/petitioners the moment they admitted such deed disclosed by the contesting defendants. So far as the documents sought for by the plaintiffs/petitioners with regard to Schedule-I are concerned, in view of my findings recorded above and the contesting defendants have the copy thereof and produced the same in an revisional application filed before this Court, there is no occasion to produce the same again. Since a specific defence has been taken by the contesting defendants that the said Nilmoni retired and/or relinquished his share in the partnership upon a full and file settlement of the accounts, it is obligatory on the part of the contesting defendants to produce the relevant documents in this regard. It is also a specific case of the contesting defendants that after the dissolution of the said partnership firm it was reconstituted and by the passage of time reconstituted thrice and, therefore, there is no difficulty in producing those reconstituted partnership deeds for the purpose of discovery and inspection by the plaintiffs/petitioners. Last but not the least, Schedule-4 appended to the said application cannot be allowed as the right of the said Nilmoni is to be established in trial and, therefore, there is no fetter on the part of the Court in granting a final relief in the form of an account in the event the plaintiffs/petitioners success. 13. Last but not the least, Schedule-4 appended to the said application cannot be allowed as the right of the said Nilmoni is to be established in trial and, therefore, there is no fetter on the part of the Court in granting a final relief in the form of an account in the event the plaintiffs/petitioners success. 13. The impugned order is modified to the extent that the plaintiffs/petitioners shall disclose and give an inspection of the statutory documents containing the date of birth or Prolay Jetty to the contesting defendants or their counsel in the Trial Court. The contesting defendants are also directed to produce the documents pertaining to full and final settlement of the shares originally held by Nilmoni and also the three reconstituted partnership deeds. 14. The entire exercise shall be completed within four weeks from date of the communication of this order. 15. This Court, however, requests the learned Judge in the Court below to make endeavour to dispose of the suit as expeditiously as possible without granting unnecessary adjournments to either of the parties. With these observations, the revisional application is disposed of. No order as to costs.