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2022 DIGILAW 87 (RAJ)

Jagmal Singh S/o Shri Mukharam v. Karnel Singh S/o Shri Chaju Singh

2022-01-11

ANOOP KUMAR DHAND

body2022
JUDGMENT : ANOOP KUMAR DHAND, J. 1. By filing this appeal a challenge has been made to the judgment dated 10.01.2019 passed by the Court of learned Additional District Judge, Khetri, District Jhunjhunu [for short ‘the First Appellate Court’] in Civil Misc. Appeal No. 01/2013 by which the judgment and decree dated 23.11.2012 passed by the Court of Civil Judge (Senior Division), Khetri [for short ‘the learned trial Court’] in suit No. 26/2012, has been quashed and set aside and the matter was remanded to the learned court below to decide the suit in accordance with law. 2. Skeleton facts of the case are that the plaintiff-respondent Karnel Singh filed a civil suit for permanent injunction against the defendant-appellant and other defendants-respondents before the learned trial Court with the averments that a partnership deed was executed on 27.05.2005 between the plaintiff and the defendant for getting works from defendant-Hindustan Copper Limited in the name and style of M/s. Jagmal Singh, on certain terms and conditions. It was also stated in the plaint that some dispute occurred between the parties, hence, the plaintiff filed a civil suit against the defendants for permanent injunction for restraining them not to operate the bank accounts of the firm for personal use. The other reliefs were also sought. 3. The plaintiff-appellant submitted an application under Order 7 Rule 11 CPC before the learned trial Court and took an objection about the maintainability of the suit in terms of Section 69(2) of the Indian Partnership Act, 1932 (for short ‘the Act of 1932’) by saying that the partnership deed executed between the parties, but the same was not registered. Hence, in terms of Section 69(2) of the Act of 1932, the suit is not maintainable. 4. The defendants-respondents submitted reply to the said application and denied the averments made in the application and stated that registration of the partnership was not required and the suit is quite competent and the same is maintainable before the learned trial Court as per the terms and conditions of the partnership deed executed between the parties. 5. 4. The defendants-respondents submitted reply to the said application and denied the averments made in the application and stated that registration of the partnership was not required and the suit is quite competent and the same is maintainable before the learned trial Court as per the terms and conditions of the partnership deed executed between the parties. 5. After hearing the arguments raised by both the sides, the learned trial Court allowed the application filed by the plaintiff-appellant under Order 7 Rule 11 CPC and rejected the plaint in view of Section 69(2) of the Act of 1932 by saying that the partnership deed was unregistered, hence, the suit was not maintainable. 6. Feeling aggrieved by the said judgment dated 23.11.2012 passed by the learned trial Court below, the plaintiff-respondent preferred an appeal before the First Appellate Court whereby the appeal was allowed on the basis of judgment delivered by the Hon'ble Supreme Court in Haldiram Bhujiawala vs. Anand K. Deepak, 2000 (3) SCC 250 , wherein the Hon'ble Apex Court has held that “when the suit is filed for the enforcement of certain rights arising out of a contract entered into by the unregistered firm with the third parties in the course of business transaction, the same is not barred under Section 69(2) of the Act of 1932.” On the basis of the aforesaid judgment delivered by Hon'ble the Apex Court, the judgment dated 23.11.2012 passed by the learned trial Court was quashed and set aside and the matter was remanded to the learned court below to decide the suit in accordance with law. 7. Feeling aggrieved by the impugned judgment dated 10.01.2019 passed by the First Appellate Court, the appellant-defendant has preferred the instant appeal. 8. Learned counsel appearing for the appellant-defendant submits that the judgment passed by the First Appellate Court is not a reasoned judgment and without considering the judgments cited by appellant-defendant, the judgment passed by the learned trial Court has been quashed and set aside and the matter was remanded to the learned court below for deciding the suit on its merits. Learned counsel appearing for the appellant-defendant submits that the judgment passed by the First Appellate Court is not a reasoned judgment and without considering the judgments cited by appellant-defendant, the judgment passed by the learned trial Court has been quashed and set aside and the matter was remanded to the learned court below for deciding the suit on its merits. Counsel further submits that the principles laid down by Hon'ble the Apex Court in the case of Haldiram Bhujiawala (supra) are not applicable in the instant case because the issue involved in the said matter was confined to the relief of permanent injunction and damages being claimed on the basis of a registered trademark and its infringement and the suit was treated as one based on a statutory right under the Trade Mark Act. So on the basis of that analogy, the Hon'ble Supreme Court has held that the suit is not barred under Section 69(2) of the Act of 1932. Counsel further submits that the First Appellate Court has not taken into consideration the landmark decision of Hon'ble the Apex Court delivered in the case of Loon Karan Sethia vs. Ivan E. John and Others, AIR 1977 (1) SC 379, wherein Hon'ble the Apex Court has held that the suit is not maintainable if filed by an unregistered firm. 9. Per contra, the counsel appearing for the respondents opposed the arguments raised by the counsel for the appellant-defendant and submitted that the judgment passed by the First Appellate Court is just and proper and the same requires no interference of this Court. 10. Heard learned counsel appearing for the respective parties and perused the documents and material available on the record. 11. Bare perusal of the judgment dated 23.11.2012 passed by the learned trial Court indicates that the case of the appellant-defendant was that the dispute arose between the partners, but their partnership deed was not registered. Hence, in any case filing of civil suit before the learned trial Court was not the appropriate remedy as the firm was unregistered and also in view of Section 69(2) of the Act of 1932, the suit was not maintainable. While deciding the application filed under Order 7 Rule 11 CPC, the learned trial Court has taken into consideration the following judgments: 1. Loon Karan Sethia vs. Ivan E. John and Others, AIR 1977 (1) SC 379 2. While deciding the application filed under Order 7 Rule 11 CPC, the learned trial Court has taken into consideration the following judgments: 1. Loon Karan Sethia vs. Ivan E. John and Others, AIR 1977 (1) SC 379 2. Shreeram Finance Corporation vs. Yasin Khan and Others, AIR 1989 SC 1769 3. Kavita Trehan and Others vs. M/s. Balsara Hygiene Products Ltd. AIR 1992 Delhi 92 4. Ashish Verma vs. Neeraj Vyas and Others, AIR 2012 M.P. 9 5. Kulwindersingh Ahluwaliya vs. Sandeep Kaur, AIR 2009 (NOC) 2660 Bombay 12. It appears that while deciding the appeal the First Appellate Court has not taken into consideration the judgments relied upon by the counsel appearing for the defendant-plaintiff and the impugned judgment has been passed only on the basis of the ratio decided by the Hon'ble Supreme Court in the case of Haldiram Bhujiawala (supra). 13. Learned counsel appearing for both the parties are in agreement that in the interest of justice, the matter may kindly be remanded to the First Appellate Court for passing fresh order after considering the judgments cited by both the parties at Bar. 14. Considering overall facts and circumstances of the case and more particularly the arguments raised by both the parties in agreement for remanding the matter to the First Appellate Court, the instant appeal is allowed, the judgment dated 10.01.2019 passed by the First Appellate Court is quashed and set aside and the matter is remanded to the First Appellate Court with a direction to hear and decide the appeal afresh on merits after considering the provisions of law and the judgments cited by both the counsel appearing for the respective parties and also after considering their arguments and thereafter may pass a fresh order in accordance with law. 15. With the above observations, this appeal as well as stay application stand disposed of. 16. The parties are directed to appear before the First Appellate Court on 01.02.2022. 17. All the pending applications, if any, stand disposed of.