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Judgment
Rajiv Sharma, J.—At the outset, it is necessary to point out that this writ petition was dismissed mainly on account of non-presence of the Petitioner''s counsel by the order dated 22.4.2008. Subsequently, an application for recall, bearing C.M. Application No. 22997 of 2010, was filed. This application was opposed by the Respondent No. 4. Later on, this Court, after hearing the parties'' counsel, came to the conclusion that ends of justice would be served, if the writ petition is decided on merit and accordingly revived the interim order, passed earlier in favour of Petitioners vide order dated 23.7.2004. It appears that somehow, the order restoring the writ petition to its original number, was left to be transcribed. It may be noted that as the matter was lingering since long, Sri Umesh Chandra, Counsel appearing for one of the Respondents and other Counsel consented that the matter may be heard and decided finally and as such interim order which was operating earlier was again revived, which would be evident from the order sheets. In these circumstances, it is clarified that the order dated 22.4.2008 shall be treated to have been recalled for all practical purposes.
By means of instant writ petition, Petitioners have sought for quashing impugned orders dated 8.9.2003 and 7.1.2004 passed by the Registrar, Firms, Societies and Chits Uttar Pradesh (Respondent No. 1), contained in Annexure Nos. 1 and 2 to the writ petition, whereby vide entries made in Form-7 with regard to the change in the constitution of Registered Firm M/s Dwarka Prasad and Brothers filed by the partner of Firm dated 12.5.1995, has been declared void. Petitioners are also aggrieved by the order dated 3.12.2003 whereby the stay granted vide order dated 20.10.2003 has been vacated inter-alia on the ground that the same has been passed without giving any opportunity, causing serious prejudice to the Petitioners.
Brief facts of the case are that a firm, namely, M/S Dwarka Prasad Agarwal and Brothers was constituted comprising Dwarka Prasad Agarwal, Bishambhar Dayal Agarwal, Mahesh Prasad Agarwal and Ramesh Chandra Agarwal as partners and the same was registered with the Assistant Registrar, Firms, Societies and Chits, Jhansi on 15.11.1976. Sri Mahesh Prasad Agarwal in November, 1987 issued a notice allegedly u/s 43 of the Indian Partnership Act seeking for dissolution of the said firm, by claiming that the Partnership is ''At will''. On 11.12.1987, Sri Bishambhar Dayal Agarwal, the then partner of the said firm tendered a reply to the alleged notice stating therein that the Partnership was not ''At will''. However, the notice of Sri Mahesh Prasad Agarwal for dissolution of the Firm was taken as a notice of retirement and from 25.11.1987, Sri Mahesh Prasad Agarwal was not treated as partner of the Firm, i.e., from the date on which the notice sent by Sri Mahesh Prasad Agarwal for dissolution of the Firm was received. The notice was also published in the newspaper that he is no more a partner in the aforesaid firm.
Sri Ramesh Chandra Agarwal, another partner of the firm withdrew himself from the partnership of the said firm and constituted his own company under the name and style of M/s Writers and Publishers Pvt. Limited and launched a new Newspaper under the title of ''Nav Bhaskar''. It is said that Bishambhar Dayal Agarwal, Ramesh Chandra Agarwal and Mahesh Chandra Agarwal filed a compromise in Jabalpur High Court claiming that the Firm M/s Dwarka Prasad Agarwal and brothers stood dissolved and the assets of the firm stood distributed amongst the parties, as per terms of compromise. After the judgment and order dated 29.6.1992 passed by the Jabalpur High Court, the Respondent No. 4 and Ors. succeeded in getting the ownership of Newspaper ''Dainik Bhaskar'' transferred from the firm of the Petitioner to M/s Writers and Publishers Pvt. Limited. As the compromise was without knowledge of all concerned and on that basis, the writ petition was disposed of, the matter reached to the Hon''ble Apex Court and ultimately all the controversies were settled vide judgment and order dated 7.7.2003 passed by the Apex Court.
Mahesh Prasad Agarwal (respondent No. 4), after the aforesaid judgment of the Apex Court, made complaints dated 17.7.2003 and 18.7.2003 to the Deputy Registrar, Firms Societies and Chits, Meerut (Respondent No. 2) and Assistant Registrar, Jhansi (respondent No. 3). The Respondent No. 2 while entertaining the complaints passed an order dated 19.7.2003 directing for keeping the order dated 2.3.1996 in abeyance. When Petitioners came to know the said order, they filed objections and prayed for staying the aforesaid order dated 19.7.2003.
It is said that pursuant to the order dated 19.7.2003 passed by Deputy Registrar, Meerut, notices were issued to the Petitioners calling upon them to file relevant documents and lead evidence fixing 18.08.2003. In the notice, it was also stated that the Petitioners were called upon to submit reply by 5.8.2003, but no reply was tendered. Instead, Petitioners choose to make a complaint before the Registrar, Firms, Societies and Chits at Lucknow, against the conduct of Deputy Registrar, Meerut and also requested therein that the order passed by Deputy Registrar, Meerut dated 19.7.2003 be stayed. It has been alleged that the Registrar-opposite party No. 1 without considering the reply submitted by the Petitioners passed the order dated 8.9.2003, cancelling the order dated 2.3.1996 passed by the Assistant Registrar, Jhansi. Thereafter, Petitioners made an application for recall of the aforesaid order dated 8.9.2003, which was stayed. However, subsequently, the stay order was vacated vide order dated 3.12.2003 without any notice and hearing the Petitioners or her representative thereby causing serious harm. Thereafter, the Registrar (respondent No. 1) passed another order dated 7.1.2004.
Counsel for the Petitioners argues that the notice regarding reconstitution of the firm was duly accepted and recorded by the Assistant Registrar, Jhansi. The Registrar or the Deputy Registrar has no jurisdiction to entertain any complaint in respect of the correctness or otherwise of the notice. At the most, the Registrar can direct the parties to approach the Civil Court having jurisdiction, which alone could have decided the issue and then only the Registrar can correct or amend the record, as per decree of the Court. Furthermore, the impugned orders are against the principles of natural justice, equity and good conscience. It has also been vehemently argued that the respondent No. 1 has failed to appreciate that the Apex Court has held that the parties shall be relegated to the same position in which they were immediately prior to passing of the order dated 26.9.1992.
Placing reliance on Sri Lakha Granites Vs. Eklavya Singh and Another, Sri Chandra submitted that the proceedings for rectification of mistake can be initiated by Registrar only on an application made by all parties who have signed the documents but the rectification of mistakes at the instance of one of the partners is highly improper and not permissible. Para 20, which is relevant is reproduced herein:
A bare perusal of Section 64 of the Act makes it abundantly clear that the Registrar can exercise the power only for rectification of the mistake so as to bring the entries made into conformity with the documents relating to the firm. In considered opinion of this Court, while exercising the power of rectification of mistakes, the Registrar who is only a registering authority authorized to record the entry in respect of constitution of the firm, its dissolution etc. has no authority to enter into roving and fishing inquiry into the rival claims of the parties and pronounce upon the genuineness or validity of the documents produced. Suffice is to say that if the alteration recorded in the Register of the Firms is in conformity with the statement made and documents produced in terms of the provisions of Section 63 of the Act, no proceedings for cancelling or deleting the entries already made can be initiated by the Registrar in purported exercise of the power u/s 64 of the Act. Moreover, as per the provisions of Sub-section (2) of Section 64, the proceedings for rectification of mistake can be initiated by the Registrar only on application made by all the parties who have signed any document related to the firm filed before him and not otherwise. Therefore, no proceedings could have been initiated by the Registrar for cancellation of the entry recorded in conformity with the provisions of Section 63 of the Act, in the garb of the power conferred u/s 64 of the Act for rectification of the mistakes and that too at the instance of one of the partners of the firm who is alleged to have retired after reconstitution of the partnership.
In contrast, it has been urged on behalf of the Respondent No. 4 that the Writ Petition is liable to be dismissed on this ground alone that the persons who have filed this petition are not the partners of the firm and have nothing to do with the firm, namely, M/s Dwarka Prasad Agarwal and Brothers. It has also been pointed by the Respondents'' Counsel that a similar petition challenging the same orders was filed before the Allahabad High Court in March 2004, on which no stay was granted. This fact has been concealed by the Petitioners, while filing 2nd petition assailing the same orders at Lucknow Bench. It has been pointed out that the Respondent No. 4 made a complaint before the Assistant Registrar, Jhansi, who, afterwards came to know that the registered office of the firm was wrongly shifted from Jhansi to Ghaziabad by Hemlata Agarwal and others. The Deputy Registrar, Meerut also found that the removal of the Petitioner and Ramesh Chandra Agarwal and the inclusion of three new partners was not in accordance with the provisions of Partnership Act. Moreover, Form No. 7 was submitted unauthroisedly by Hemlata Agarwal, as neither there was any publication in the newspaper nor the ex-partners consented to their retirement from the firm. The Assistant Registrar, Jhansi (Respondent No. 3) was directed to explain as to why the changes had been made in the Constitution of the firm, without following the prescribed legal procedure. In these circumstances, it is wrong to say that the impugned orders are legally incorrect.
On behalf of the State, it has been argued that the impugned orders have been passed in accordance with law and the allegation of the Petitioners that same suffers from material irregularities is wholly unfounded and misconceived. The impugned orders were passed, after examining the material on record and after considering all the relevant facts.
Before proceeding further, it would be relevant to point out that against the orders passed by Madhya Pradesh High Court dated 29.6.1992 and 13.11.1992 and the order dated 3.9.1992 passed by the Registrar of Newspapers, the matter went to the Hon''ble Supreme Court. It may be pointed out that vide order dated 29.6.1992, Madhya Pradesh High Court disposed of the writ petition in terms of the Deed of Settlement. The Hon''ble Apex Court, vide its judgment and order dated 7.7.2003, set-aside all the aforesaid three orders and placed the parties on the position, on which they were prior to 26.9.1992. The relevant paragraph of the judgment and order dated 7.7.2003 reads as under:
We are, therefore, of the opinion that the interest of justice would be sub-served if the appeals and the writ petition are allowed and the impugned orders dated 26-9-1992 and 13-11-1992 passed by the High Court as also the order dated 3-9-1992 passed by the first Respondent, Registrar, Newspapers for India, are quashed. All action taken and all orders passed by the statutory authorities and the civil courts as referred to hereinabove shall also stand quashed. As a logical corollary to our order, it must also be held that the writ petition, filed by Late Bishambhar Dayal Agarwal does not survive and must, therefore, be dismissed. The consequence of this order would be that the parties shall be relegated to the same position in which they were immediately prior to the passing of the order dated 26.9.1992. All parties, statutory authorities and Courts including the Civil Courts are directed to act accordingly.
It is also relevant to point out that Dwarika Prasad Agarwal died during the pendency of the proceedings. Therefore, the Apex Court, after considering the submissions, allowed substitution of Kishori Devi, wife of deceased and daughters Hemlata and Anuradha in place of Late Dwarika Prasad Agarwal. Therefore, when the Apex Court has confirmed that they are legal heirs of Dwarika Prasad Agarwal, it cannot be said that the Petitioner No. 2 is stranger to the proceedings or has no interest. Further the opposite party No. 4 in his affidavit dated 10.3.2010 has himself admitted that Late Dwarika Prasad Agarwal was having 25% share in the firm.
Before this Court, the matter has seriously been contested by the Petitioners, Sri Mahesh Prasad Agarwal-opposite party No. 4 and even an application for impleadment, during the pendency of the writ petition, has been filed by Ramesh Chandra Agarwal, alleging himself to be karta of the family. Sri Chandra, Counsel for the Petitioner has alleged that certain documents are not available on the original file of the authorities whereas certified copies of the same were issued from the office of the Deputy Registrar, Firms Societies and Chits. Sri Vivek Tankha, Senior Advocate appearing for the private Respondents has disputed this fact, as would be evident from the order dated 27.7.2010. There has been serious dispute between the parties with regard to availability of certain documents on the official file and genuineness of certain other documents have also been doubted, which would be evident from the order dated 15.2.2011, reproduced here-in-under:
... It has been alleged by the Learned Counsel for the Petitioners that documents, which have been filed by the Petitioners, have not been considered by the Registrar and as such, the Registrar was directed to produce the record. In compliance thereof, the record was produced by Sri M.B. Singh, Learned Counsel for the opposite parties Nos. 1 to 3.
On perusal of the records, which have been produced by Sri M.B. Singh, it reflects that documents, on which the Petitioners have placed reliance, was not on record and as such, the Learned Counsel for the Petitioners was directed to bring those documents, on which they have placed reliance, on record. In compliance thereof, the Learned Counsel for the Petitioners have placed those documents on record by means of the supplementary affidavit after serving a copy to the Learned Counsel for the Respondents and the same was directed to be taken on record.
Sri Prashant Chandra, Senior Advocate, assisted by Sri Prashant Kumar, Learned Counsel for the Petitioner submits that the records, which have been produced by Sri M.B. Singh, are not complete insofar as certain pages are being missing from the records and in their place, other documents have been placed. ....
Sri M.B. Singh appearing on behalf of the opposite parties Nos. 1 to 3 has filed an affidavit indicating therein that the photocopy of the certified copy which has been annexed as Annexure-1 alongwith the supplementary affidavit is a forged document. There is no document on record which establishes that all the three partners of the firm have given any consent/ submitted written consent with regard to retirement of the partners. In this affidavit filed by the State Counsel, it has also been indicated that initially, the Firm ''Dwarka Prasad Agarwal and Brothers'' was registered on 10.7.1959 bearing File No. VII-31471. Again, in the name of ''Dwarka Prasad Agarwal & Bros'' the firm was registered on 15.11.1976 bearing File No. VII-134158.
It is relevant to mention that on behalf of Ramesh Chandra Agarwal, who has filed an application for impleadment/intervenor has moved an application under the signature of Sri Satish K. Tripathi, Advocate for disposal of application for dismissal of C.M. Application No. 22997/10 dated 9.3.2010 moved by the Petitioner for recall of order dated 22.4.2008 and Sri Chaddha, Senior Advocate has advanced certain submissions and also stated that the averments so made in the affidavit may be treated as his submissions. In the said affidavit, it has been said that the Petitioner has suppressed material facts and has not come with clean hands. Petitioner has also not disclosed regarding filing of writ petition No. 9099/04 filed at Allahabad. Placing reliance on S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, and Ram Chandra Singh Vs. Savitri Devi and Others, Sri Chaddha, Senior Advocate has submitted that as Petitioners have not come with clean hands, suppressed the material facts and played fraud upon the Court, they are not entitled for any relief.
It is relevant to mention that the Learned Counsel, namely, Sri Umesh Chandra and Sri Vivek Tankha, Advocates, who have appeared on behalf of applicant Ramesh Chandra Agarwal on earlier occasion had consented that the matter may be heard and decided finally and as such it was not open for the applicant-Ramesh Kumar Agarwal to move the instant application bearing C.M. Application No. 56830 of 2011, referred to above. It may be noted that this application has been filed at a very belated stage and that too when the contesting opposite party No. 4 Mahesh Prasad Agarwal has already filed an affidavit dated 10.3.2010 for amicable settlement of dispute. It is also relevant to point out that the orders, which are impugned in the instant writ petition, were passed on the complaint made by opposite party No. 4-Mahesh Prasad Agarwal, who has already been arrayed as opposite party No. 4 in the writ petition. Therefore, this Court looking to the entire facts of the case has not allowed the application for impleadment of applicant Ramesh Chandra Agarwal, however the Counsel were permitted to make the arguments as an intervenor. As regard to the assertion that the instant writ petition is second writ petition, it may be stated that the writ petition No. 9904 of 2004 before this Court at Allahabad, was presented by Hemlata Agarwal in her individual capacity and neither Smt. Kishori Devi nor the firm which is registered under the Indian Partnership Act is party in the said writ petition. The instant writ petition has been filed on behalf of the Firm, namely, M/s Dwarka Prasad Agarwal and brothers through its partner Smt. Kishori Devi.
It is pertinent to mention that during the pendency of the instant writ petition, it appears that some good sense prevailed upon opposite party No. 4-Mahesh Prasad Agarwal, who being filled with remorse, admitted in his affidavit dated 10.3.2010 that he has committed certain wrongs for which he want to repent, which is evident from the paragraphs 2, 3, 7, 8, 9, 10, 11 and 12 of his affidavit, which are reproduced as under:
That the deponent is one of the partner of the registered firm incorporated by the Petitioner Husband in the year 1972 in accordance with Partnership Act, 1932. The Deponent being a partner of the firm also contributed towards the capital of the firm in share to the extent of 30%. The main purpose of incorporating the firm was to extend the Newspaper business, under the name and style of ''Dainik Bhaskar''.
That the deponent further submits before this Hon''ble Court that the Partnership agreement specifically states on para No. 12 of the aforesaid agreement ''That the death of any partner shall not dissolve the firm ipso facto. It shall be continued by the remaining partners with the legal heir or heirs of the deceased partner and the share of the deceased partner shall be given to his legal heir or heirs.'' It is also relevant to mention here that the founder partner of the firm Late Dwarika Prasad Agarwal has died earlier who was having 25% in the firm constituted by him in the name of ''Dwarika Prasad Agarwal & Brothers.
That the contents of paras 6 and 7 of the affidavit is admitted. It is further being submitted before this Hon''ble Court that Late Sri Dwarika Prasad Agaral (Partner) was having two wives and both of them applied for the substitution in place of the deceased partner. The Hon''ble Apex Court considering the said issue and directed Kishoridevi and two of her daughters for substitution in place of Dwarika Prasad Agarwal (deceased partner).
That the contents of para 8 of the affidavit is admitted. It is further being submit here that the deponent initially in collusion with one of the partner, who is the step son of Kishoridevi had also entered into a compromise agreement before the Hon''ble High Court at Jabalpur without taking any consent from the Founder partner, Late Dwarika Prasad Agarwal against which he filed writ petition and civil appeals before Hon''ble Apex Court, which was finally allowed by order dated 7.7.2003 in favour of Late Dwarika Prasad Agarwal. The opposite party No. 4 is now at the verge of advance age always feels sympathy for the family members of Late Dwarika Prasad Agarwal, the opposite party No. 4 also realize that due to undue influence by one of the partners, he has committed wrong against the legal heirs of Late Dwarika Prasad Agarwal, which is till date affecting the legitimate right of the legal heirs, of the Partnership Firm. The opposite party No. 4 made a complaint to opposite party No. 1 with the ulterior motive for personal gain but now the opposite party No. 4 being the eldest member/partner of the Firm try to bring the whole family altogether by giving their legitimate right in the Firm, he does not want to leave any stone unturned after his life. Hence the opposite party No. 4 had already submitted in details with all the facts, wrong doing in past which was also appreciated by the Hon''ble Supreme Court of India in writ petition No. 44-46 of 2004 and considering all the facts stated by the opposite party No. 4, the Hon''ble Apex Court after taking cognizance had issued notices to one of the partner of the firm.
(emphasis supplied)
That the contents of paras 9 and 10 of the Affidavit are admitted to the extent that as a matter of fact, it is submitted that Writ Petition No. 9099/2004 was filed by one Mrs. Hemlata Agarwal, who is daughter of Late Shri Dwarika Prasad Agarwal and Kishori Devi Agarwal at Allahabad.
That the contents of para 11 of the affidavit are admitted to the extent that deponent had filed a representation for recall of the orders passed by the opposite parties Nos. 1 and 2 stating all the material facts which are necessary for the proper adjudication of the case. The copy of the representation/ application is already filed by the Petitioner with the affidavit under reply. The same is still pending and the opposite party No. 4 has not received any decision/communication from opposite parties Nos. 1 and 2, accordingly, the opposite party No. 4 had already sent a reminder with the request to decide the application/representation in the light of the facts and circumstances stated by him to the representation. It has further been stated that the opposite party No. 4 and thereafter he engaged an Advocate of his own choice. The opposite party No. 4 also undertakes that whenever this Hon''ble Court feels the presence of the opposite party No. 4 in person to assist the Hon''ble Court regarding the factual aspects, he will certainly ensure his presence as per the direction issued by this Hon''ble Court.
That the contents of para 12 of the affidavit is admitted, it is further submitted that the deponent is really scared of the God and his late brothers who had always considered the deponent as his own son but as already stated hereinabove, in order to fulfil his ulterior motive/desire he had committed wrong to the family members of Late Dwarika Prasad Agarwal, therefore, the deponent has himself filed an application/representation in the office of opposite party No. 1 and 2 without any undue influence, threat, coercion from anybody. The deponent at his advance age only feels that the entire family should come together to resolve all the disputes with the motive that the justice shall prevail at last.
(emphasis supplied).
That the contents of paras 13 and 14 of the affidavit need no comments as it has already been replied in the preceding paragraphs. The deponent submits the Petitioner should not be deprived of their legitimate and lawful interest after demise of Late Shri Dwarika Prasad Agarwal who had laid the foundation stone of News Paper business, namely, as Dainik Bhaskar in India.
From the above statement made on oath by the contesting opposite party No. 4, it is apparent that he does not want to contest the matter any further; rather, he wants settlement of the dispute and closing of the proceedings. It may be added that the impugned orders were passed on the basis of the complaint lodged by opposite party No. 4-Mahesh Prasad Agarwal. In these circumstances, I refrain myself from entering into other aspects of the matter regarding which arguments were advanced by the Counsel for the parties.
As regard the impugned orders, the Petitioners have alleged that the same have been passed without considering the judgment of the Apex Court dated 7.7.2003 whereby the controversy has been set at rest. It has also been alleged by the parties'' Counsel that certain relevant documents are not available on the official file of the opposite parties Nos. 1 to 4, even though the certified copies of the same are available with them and same were not taken into consideration while passing impugned orders. Number of documents have been brought on record before this Court through affidavits but their genuineness has been doubted by the other party.
It is an admitted fact that the controversy between the parties has finally been settled by the Hon''ble Supreme Court vide judgment and order dated 7.7.2003 and while doing so, it was categorically provided that all actions taken and all orders passed by the statutory authorities, including the Civil Court, the details of which are contained in the judgment and order dated 7.7.2003, stand quashed. It was further provided that the consequence of the order passed by the Hon''ble Supreme Court would be that the parties shall be relegated to the same position in which they were, prior to 29.6.1992. Therefore, I find force in the submission of the Petitioners'' Counsel that the judgment of the Apex Court is binding upon all the authorities and no authority can unsettle the things which have already been settled by a judicial verdict given by the Apex Court. From the record, it reflects that after judgment and order dated 7.7.2003 of the Apex Court, the opposite party No. 4 made complaint by twisting the facts and at the behest of certain persons, which is evident from the statement made by the opposite party No. 4 in the affidavit, reproduced hereinabove,. It is said that by the order dated 8.9.2003, the Registrar, instead of abiding by the decision rendered by the Hon''ble Apex Court, has reopened the issue of retirement of partners, which had taken place much before 29.6.1992. By a subsequent order passed by the Registrar, he has reaffirmed the order dated 8.9.2003.
As stated above, this Court while exercising the writ jurisdiction under Article 226 of the Constitution of India cannot decide the disputed question of facts and as such looking to the allegations made by the parties, changed scenario on account of statement on oath made by the opposite party No. 4 at whose behest instant proceedings started, referred to above, I am of the considered opinion that remanding the matter to the Registrar for deciding the controversy afresh would serve the ends of justice as the Registrar is the most appropriate forum to go into the facts and evidence so that a proper decision based on appreciation of facts and evidence is given by him. This will serve the interest of justice and ultimately benefit the parties. Since the matter is being remanded, I am not entering into the merits of the case as recording of any finding would adversely affect the rights of the parties.
In view of the above, the impugned orders dated 8.9.2003, 3.12.2003 and 7.1.2004 are hereby quashed. Registrar shall pass fresh order after affording personal hearing to all the parties concerned and in accordance with law. It is further provided that in case any document is not available on the official file of the Registrar, he shall ask the parties to furnish the same. It will be open for the Registrar to examine the genuineness of the documents so furnished by the parties and record a clear-cut finding on this point.
With the aforesaid observations and directions, this writ petition is disposed of finally. No order as to costs.