Hemant Kumar Jalan vs Rajendra Bajoria & Ors.

Arijit Banerjee, J.

(1) These two appeals are directed against the Judgement and order dated 22.09.2017 passed in GA No. 1680 of 2017 and GA No.1571 of 2017

whereby the said two applications were dismissed. GA No. 1688 of 2017 was taken out by the defendant number 3. GA No. 1571 of 2017 was taken

out by the defendant numbers 2, 7, 8, 9, 11, 12, 13, 15, 16, 17, 18, 19, 20 and 21. In both the applications the prayers were for dismissal of the suit;

alternatively for rejection of the plaint; and alternatively for revocation of leave under Clause 12 of the Letters Patent, 1865.

(2) Baijnath Jalan, Mohanlal Jalan, Babulal Jalan, Sewbhagwan Jalan Keshabdeo Jalan, Nand Kishore Jalan, Deokinandan Jalan, Chiranjilal Bajoria,

and Kishorilal Jalan were the partners of a partnership firm constituted in terms of a deed of partnership dated 6 December, 1943. The firm was

called ‘Soorajmull Nagarmull’. None of the said partners are alive. The plaintiff numbers 1, 2 and 3 are the sons of Late Chiranjilal Bajoria, who

died on 31 December, 1981. The plaintiff  numbers 4 and 5 are the sons of Late Deokinandan Jalan, who died on 12 July 1997. The plaintiff number

6 is the son of Late Mohanlal Jalan who died on 1 May, 1982. The defendants are the legal heirs of the other initial partners of the said firm.

(3) The plaintiffs filled C.S No. 17 of 2017 claiming inter alia the following reliefs against the defendants:-

(a) Decree for declaration that the plaintiffs along with the defendants are entitled to the assets and properties of the firm “Soorajmull NagarMullâ€​

as the heirs of the original partners of the reconstituted firm under the partnership deed dated 6th December, 1943, in the share of the said original

partners as mentioned in paragraph 2 above;

(b) Decree for declaration that the plaintiffs along with the defendants are consequently entitled to represent the firm in all proceedings before the

concerned authorities of the State of Bihar for the acquisition of its Bhagalpur land;

(c) Decree for perpetual injunction restraining the defendant No.1 or any of the other defendants from in any manner representing or holding

themselves out to be the authorised representative of the firm or the repository of all its authority, moneys assets and properties or from seeking to

represent the firm in its dealings and transactions in respect of any of its assets and properties including the acquisition proceeding of the firm’s

Bhagalpur land or from receiving any monies on behalf of the firm, whether on account of compensation for its Bhagalpur land or otherwise;

(d) Decree for mandatory injunction directing the defendant No. 1 to disclose full particulars of all assets and properties of the firm, full particulars of

all its dealings and transactions including any dealing or transaction concerning any asset or property of the firm, and full accounts of the firm for the

purpose of its dissolution.

(e) Decree for the dissolution of the firm Soorajmull Nagarmull and for the winding up of its affairs upon realising the assets and properties of the firm,

collecting all moneys due to the firm, applying the same in paying the debts of the firm, if any, in paying the capital contributed by any partner and

thereafter by dividing the residue amongst the heirs of the original partners in the shares to which they were entitled to the profits of the firm in terms

of the Partnership Deed dated 6th December, 1943.â€​

(4) As aforesaid, two applications were filled for rejection of the plaint. Both the applications were dismissed by the judgement and order impugned in

these appeals.

(5) Appearing in A.P.O. No. 491 of 2017 for the appellant, Mr. Ratnanko Banerji, Learned Senior Advocate submitted that firstly, the plaint does not

disclose any such cause of action; secondly, the reliefs claimed are barred by limitation; and thirdly, the reliefs claimed in the plaint are not

maintainable in law. According to Mr. Ratnanko Banerji, the plaint should be taken off the record and the defendants should not be required to contest

a suit which is bound to fail. Â

(6) In support of his submission Mr. Banerji referred to the indenture of partnership dated 6 December 1943 and in particular to clauses 4, 5, and 6

thereof which were set out in the plaint and which are reproduced hereunder:-

“(4) That upon the death of any partner the partnership shall not be automatically dissolved but the surviving partners may admit the legal

representative of the deceased unto the partnership by mutual consent.

(5) Any partner wishing to withdraw may subject to the provision of clause 6 hereof do so on six months notice in writing given by him to the other

partners or leaving such Notice at the office of the partnership accessible to other partners. On the expiry of the period of such Notice the partnership

shall stand dissolved so far as the out-going partner is concerned Provided Always that nothing herein contained shall prevent the continuing partners

from waiving period of Notice and Provided Always that the outgoing partner shall have no claim to the goodwill of the firm.

(6) In case of death of any partner or retirement during the continuance of the partnership, the partnership shall be deemed to exist upto the end of the

accounting period of the year during which the death or retirement occurs and the estate of the deceased partner or the retiring partner shall be

entitled to receive and be responsible for all profits and losses of the partnership up to the end of the accounting period as the case may be.â€​

(7) Learned Counsel referred to Sections 5, 37, 43 and 44 of the Indian Partnership Act, 1932 which read as follows:- Â

“(5) Partnership not created by status: - The relation of partnership arises from contract and not from status; and, in particular, the members of a

Hindu undivided family carrying on a family business as such, or a Burmese Buddhist husband and wife carrying on business as such, are not partners

in such business.

(37) Right of outgoing partner in certain cases to share subsequent profits:-Where any member of a firm has died or otherwise ceased to be a partner,

and the surviving or continuing partners carry on the business of the firm with the property of the firm without any final settlement of accounts as

between them and the outgoing partner or his estate, then, in the absence of a contract to the contrary, the outgoing partner or his estate is entitled at

the option of himself or his representatives to such share of the profits made since he ceased to be a partner as may be attributable to such share of

the profits made since he ceased to be a partner as may be attributable to the use of his share of the property of the firm or to interest at the rate of

six per cent. Per annum on the amount of his share in the property of the firm:

Provided that whereby contract between the partners an option is given to surviving or continuing partners to purchase the interest of a deceased or

outgoing partner, and that option is duly exercised, the estate of the deceased partner, or the outgoing partner, or his estate, as the case may be, is not

entitled to any further or other share of profits; but if any partner assuming to act in exercise of the option does not in all material respects comply with

the terms thereof, he is liable to account under the foregoing provisions of this section.

(43) Dissolution by notice of partnership at will.- (1) Where the partnership is at will, the firm may be dissolved by any partner giving notice in writing

to all the other partners of his intention to dissolve the firm.

(2) The firm is dissolved as from the date mentioned in the notice as the date of dissolution or, if no date is so mentioned, as from the date of the

communication of the notice. Â

(44) Dissolution by the Court:- At the suit of a partner, the Court may dissolve a firm on any of the following grounds, namely:-

(a) that a partner has become of unsound mind, in which case the suit may be brought as well by the next friend of the partner who has become of

unsound mind as by any other partner;

(b) that a partner, other than the partner suing has become in any way permanently incapable of performing his duties as partner;

(c) that a partner, other that the partner suing, is guilty of conduct which is likely to affect prejudicially the carrying on of the business, regard being

had to the nature of the business;

(d) that a partner, other than the partner suing, wilfully or persistently commits breach of agreements relating to the management of the affairs of the

firm or the conduct of its business, or otherwise so conducts himself in matters relating to the business that it is not reasonably practicable for the other

partners to carry on the business in partnership with him;

(e) that a partner, other than the partner suing, has in any way transferred the whole of his interest in the firm to a third party, or has allowed his share

to be charged under the provisions of rule 49 of Order 21 of the First Schedule to the Code of Civil procedure, 1908 (5 of 1908), or has allowed it to be

sold in the recovery of arrears of land-revenue or of any dues recoverable as arrears of land-revenue due by the partner;

(f) that the business of the firm cannot be carried on save at a loss; or

(g) On any other ground which renders it just and equitable that the firm should be dissolved.â€​

(8) Learned Senior Counsel submitted that by virtue of clause 4 of the Partnership deed, the partnership did not stand dissolved upon the death of any

one or more of the partners. Further, the plaintiffs being the legal heirs of deceased partners, by virtue of Clause 6 of the partnership deed, they would

be entitled to receive and be responsible for all profits and losses of the partnership up to the end of the accounting period of the year during which the

death of the concerned partner occurred. Clause 6 is a ‘contract to the contrary’ as envisaged by Sec. 37 of the Partnership Act. The father of

the plaintiff nos. 1 to 3 having died on 31 December, 1981, those plaintiffs would be entitled to receive profit up to the end of the accounting period in

the year 1981. Hence, at the latest, the alleged cause of action for those plaintiffs arose in the year 1982 and a suit based on such cause of action

became time barred three years later. Similarly, the father of the plaintiff nos. 4 and 5 having died on 12 July, 1997, the suit based on their alleged

cause of action became time barred latest by 2001 and the suit in so far as the plaintiff no. 6 is concerned became time barred latest by 1986, his

father having died on 1 May, 1982.

(9) In support of his submission Mr. Banerjee relied on the following decision:-

(i) S.K. Sahul Hamid and Anr. â€"vs.- S.M. Sulthan & Ors., AIR 1947 Madras 287.

(ii) Kashi Ram â€"vs.- Kundan Lal and Ors., AIR 1956 Allahabad 660.

(iii) M.M. Villiammai Achi & Ors. â€"vs.- Ramanathan Chettiar & Ors., AIR 1969 Madras 257.

(iv) Pandurang Dhondi Chougule & Ors. â€"vs.- Maruti Hari Jadhav & Ors., AIR 1966 SC 153.

(v) Foreshore Co-operative Housing Society Ltd.â€"vs.- Parveen D. Desai (Dead) & Ors., (2015) 6 SCC 412.

(vi) Indian Farmers Fertilizer Co-operative Ltd. â€"vs.- Bhadra Products, (2018) 2 SCC 534.

(vii) T. Arivandandam â€"vs.- T.V. Satyapal & Anr., (1977) 4 SCC 467.

(viii) Pearlite Liners (P) Ltd. â€"vs.- Manorama Sirsi, (2004) 3 SCC 172.

(10) Appearing for the appellants in A.P.O No. 520 of 2017. Mr. Dhruva Ghosh, Learned Senior Counsel and Mr. Sabyasachi Chowdhury, learned

Counsel submitted with reference to Section 34 of the Specific Relief Act that the plaintiffs must be entitled to a legal character or a right to property

before they can claim declaration or injunction. However, neither the partners of a firm far less the legal heirs of a partner have any right in respect of

the properties of a partnership firm. Hence, prayer (a) of the plaint cannot be granted. Prayer (b) is a consequential prayer and since prayer (a)

cannot be granted, prayer (b) cannot be granted. Same is the case with prayer (c). Since no declaration can be granted as claimed in prayer (a),

prayer (c) is not maintainable in law. In so far as prayer (d) is concerned, there is no supporting pleading in the plaint. Further, only the partners of a

firm can seek dissolution of the firm. Legal heirs cannot do so.

In this connection Learned Counsel referred to Sections 39, 43 and 44 of the Partnership Act. The Plaintiffs cannot seek dissolution of the firm and

hence cannot pray for accounts for the purpose of dissolution of the firm. Their only right is as enshrined in Clause 6 of the partnership deed. Learned

Counsel referred to Art. 58 of the schedule to the Limitation Act 1963 which provides that the limitation period for seeking declaration of a legal right

or right to property is 3 years from the time when the right to sue accrues. In the present case, as per Clause 6 of the partnership deed, the right to

sue of each plaintiff arose at the end of the year when the plaintiff’s predecessorâ€"in-interest died. Hence, the plaintiffs’ cause of action is

long time barred.

(11) Appearing for the respondents/plaintiffs in both the appeals Mr. Anindya Kumar Mitra Learned Senior Advocate submitted that the scope of an

application under O. 7 R. 11 of the CPC is very narrow. The averments in the plaint will have to be taken to be correct. He submitted that if some of

the heirs of the original partners continued with the partnership business with the assets of a deceased partner, their liability to the heirs of the

deceased partner is a continuing one and there is no question of limitation. He referred to various pleadings filed in this proceeding as also in other

legal proceedings to buttress his case that the firm is alive and has not been dissolved. He submitted that even assuming that the firm was dissolved,

the firm still exists for the affairs of the firm to be wound up. The accounts have never been finalised.

(12) Mr. Mitra relied on the decision of a Division Bench of this court in the case of Harmohan Poddar and Ors. â€"vs. Sudarson Poddar AIR (1921)

Cal, in support of his submission that limitation cannot apply as between partners so long as the partnership continues. In the facts, of that case it was

found that the partnership was continuing as on the date of filling of the suit and hence, the question of limitation would not arise. He referred to

paragraph 7 of the plaint wherein it is averred that “notwithstanding the death of each of the partners of the re-constituted firm profits or losses of

the firm were not computed or distributed to the estates of the deceased partners at the end of the accounting period of the year during the death of

each of the partners. On the contrary, year after year, their estates were treated to be entitled to the capital and the profits of the firm in its balance-

sheetsâ€​.

(13) Mr. Mitra relied on the decision of the Allahabad High Court in the case of Narendra Bahadur Singh â€"vs.-Chief Inspector of Stamps, U.P AIR

1972 Allahabad 1, in support of his submission that dissolution of a firm is in reality the inception or the starting point of the process by which the legal

existence of the firm comes to an end. The firm continues to exist until its affairs are finally and completely wound up.

(14) Mr. Mitra referred to Sections 45 to 48 of the Partnership Act. Section 45 pertains to liability for acts of partners done after dissolution. Section

46 relates to right of partners to have the firm’s business wound up after dissolution. Section 47 pertains to continuing authority of the partners for

the purposes of winding up of a firm after its dissolution. Section 48 relates to mode of settlement of accounts between the partners of a firm after

dissolution.

(15) Mr. Mitra then referred to the decision of the Privy Council in the case of Haji Hedayetulla â€"vs.-Md. Kamil and Ors. AIR 1924 PC 93. In that

case the defendant/appellant and one Fazil carried on business in co-partnership. The partnership terminated on August 3, 1915, on the death of Fazil.

Accounts had already been taken in respect of the partnership up to some date in 1913. The business of the partnership was continued by the

defendant after the death of Fazil. The legal heirs of Fazil filed a suit for accounts and other reliefs. The Court of appeal made an order “that

accounts be taken of the profits of the business since the death of Fazil on August 3, 1915, up to the date when the final decree is made, all just

allowances, including fair remuneration, to be allowed in favour of the defendant for managing the business. And it is further ordered that the plaintiffs

as representatives of Fazil will be entitled to the same share as Fazil would have taken if the partnership had not been dissolved, and the profits will be

assessed on the basis of what may be found due to Fazil at the time of his deathâ€​.

The defendant carried the matter to the Privy Council which upheld the order of the Court of Appeal. It was observed that the business was to be

regarded up to the date of the final decree as a continuing business although Fazil died in 1915 and although the partnership terminated on the death of

Fazil.

(16) Mr. Mitra then relied on the decision of a Division Bench of the Punjab High Court in the case of P. S. Nagaranjan â€"vs.-Robert Hotz, AIR

1954 Punjab 278. In that case one A. H. Pook and the defendant were partners of a firm. The partnership was started in January 1, 1941. Pook died

on April 26, 1943. The defendant as the surviving partner, carried on the business of the firm. When asked by the administrator of Pook’s estate

to furnish accounts, he refused to do so. The plaintiff (the administrator) instituted a suit for declaration dissolving the partnership and a decree for

rendition of the accounts of the firm. The defendant resisted the plaintiff’s claim by contending that the partnership firm stood dissolved

automatically on the death of Pook. Thereafter he had taken accounts of the business had prepared a balance- sheet and had set apart Pook’s

share. He had then continued the business in his own name and therefore the profits accruing from the business belonged solely to him. He further

contended that the suit was barred by limitation. The Court held that there was no term in the contract whereby after Pook’s death the defendant

could acquire his share and carry on the business of the firm, nor have any accounts been taken between the partners either before Pook’s death

or after and since the partnership stood dissolved on Pook’s death, Pook’s representatives have the right to claim a share in the profits of the

firm to the extent of Pook’s share in the property of the firm. As regards the point of limitation it was held that there was no question of applying

the Limitation Act. The cause of action continued from day to day and as long as the business continued and the firm continued to make profits, the

plaintiff was entitled to claim Pook’s share in the profits.

(17) Mr. Mitra also relied on the decision of a Division Bench of this Court in the case of Nilmadhab Nandi and Ors.-vs.-Srimati Nirada Sundabi Dabi,

45 CWN 1065. It was held relying on the decision of the Judicial Committee of the Privy Council that the right given to the legal representatives of a

deceased partner is not a right to a share of the profits of a dissolved partnership within the meaning of Art. 106 (same as Article 5 of the 1963 Act)

of the Limitation Act, but is a right accruing to him by the subsequent dealing with the assets belonging to the deceased partner. The Judicial

Committee of the Privy Council in the case of Haji Hedayetulla â€" vs.-Md. Kamil reported in 29 CWN 161, had observed that if a partnership

business is continued after the termination of the partnership by the death of a partner, it becomes a partnership- at-will and the representatives of the

deceased partner are entitled to have accounts taken of the partnership subsequent to his death until its final dissolution on the footing that they have

the same share as the deceased partner had in the business.

(18) Mr. Mitra submitted that the defendant in a suit, in order to succeed in an application filed by him under O. 7 R. 11 CPC will have to show clear

case of absence of cause of action on the face of the plaint and/or clear case of the suit being barred by law from the statements made in the plaint.

The bar of limitation must appear on the face of the plaint. In this connection Mr. Mitra relied on the decision of this Court in the case of British

Airways-vs.-Art Works Export Ltd., AIR 1986 Cal 120. It was observed in that case that where on the face of the plaint a suit appears to be barred

by any law, the Court shall dismiss the suit. But, where it does not so appear, but requires further consideration or, in other words, if there be any

doubt or if the Court is not sure and certain that the suit is barred by some law, the court cannot reject the plaint under O. 7 R. 11 of the CPC. Both

the grounds as embodied in Clauses (a) and (d) of O. 7 R. 11 must appear on the face of the plaint. Mr. Mitra then submitted that an application for

rejection of the plaint will succeed only if, even giving face value to the averments in the plaint and taking them to be correct in their entirety, the suit

appears to be barred by any law. The question as to whether a suit is barred by limitation or not, would depend upon the facts and circumstances of

each case. For the said purpose, only the averments in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the

defence. In this connection Mr. Mitra relied on the decision of the Apex Court in the case of C. Nataranjan-vs.-Ashim Bai & Anr., AIR 2008 SC 363.

(19) Mr. Mitra finally submitted that the plaint has to be read as a whole and there cannot be part rejection of a plaint. In support of this proposition,

Mr. Mitra relied on the decision of the Apex Court in the case of Sejal Glass Limited-vs.-Navilan Merchants Pvt. Ltd., (2018) 11 SCC 780. In support

of his submission that where a question of limitation has been raised, such issue should be decided at the final trial of the suit and not at the stage of

considering an application under O. 7 R. 11 of the CPC, Mr. Mitra relied on the decision of a learned Single Judge of the Bombay High Court in the

case of Elmano Menino Dias-vs.-Archbishop & Ors., (2008) 5 Mh. L. J. 18.

(20) Appearing for the respondents/plaintiffs in the other appeal, Mr. Pratap Chatterjee, Learned Sr. Counsel adopted the submissions made by Mr.

Mitra. He further submitted that the learned Single Judge’s view expressed in the impugned judgment and order is not so perverse as would

warrant interference.

(21) In reply, Mr. Ratnanko Banerjee, learned Sr. Counsel submitted that when the reliefs claimed in a plaint cannot be granted, the suit should not be

allowed to continue. Such a suit should be nipped in the bud. An illusion of a cause of action cannot be created. In this connection he relied on the

decision of the Apex Court in the case of Pearlite Liners (P) Ltd.-vs.-Manorama Sirsi, (2004) 3 SCC 172 and also on the decision of the Apex Court

in the case of T. Arivandandam-vs.-T. V. Satyapal & Anr., (1977) 4 SCC 467.

(22) As regards moulding of a relief by the Court, Mr. Banerjee submitted that the decision of a case cannot be based on grounds outside the

pleadings of the parties and it is the case pleaded that has to be the basis of the decision. Without an amendment of the plaint, the court is not entitled

to grant the relief not asked for. He submitted that the plaintiffs in the instant case have not made any prayer to amend the plaint so as to incorporate

in it any other prayer. In this connection he referred to the decision of the Apex Court in the case of Messrs. Trojan & Company-vs.-Rm. N.N.

Nagappa Chettair, AIR 1953 SC 235. He also relied referred to the Apex Court’s decision in the case of State of West Bengal & Anr.-vs.- West

Bengal Registration Copywriters Association & Anr., (2009) 14 SCC 132, wherein at paragraph 83 of the reported judgment it was observed, inter

alia, that although the High Court has the power to mould the relief, yet, even in its plenary jurisdiction, while moulding the relief, there must be a plea

to support such a relief. Court’s View:-

(23) At the very outset be it recorded that no argument was advanced before us regarding revocation of leave under clause 12 of the Letters Patent.

The arguments of the appellants were restricted to rejection of the plaint under O. 7 R. 11 of the CPC and alternatively for dismissal of the suit

because of non-maintainability of the prayers made in the plaint.

(24) The case pleaded in the plaint is that in spite of demise of the original partners of the said firm, the defendants have been carrying on with the

business of the said firm. The accounts have not been finalised. No share of the profits of the firm has been paid to the plaintiffs. The defendants

are seeking to represent the said firm to the exclusion of the plaintiffs. The defendants are siphoning of funds from the till of the firm. The plaintiffs

along with the defendants are entitled to the assets and the properties of the said firm as the legal heirs of the original partners of the re-constituted

firm under the partnership deed dated 6 December, 1943, in the shares of the original partners as mentioned in paragraph 2 of the plaint. The

defendants have refused to disclose the particulars of the moneys, assets, and properties of the firm to the plaintiffs. In as much as the proceedings for

acquisition of the Bhagalpur land of the said firm have been continuing since 1981 and are still continuing, no part of the plaintiffs’ claim in the suit

is barred by limitation particularly because the plaintiffs’ cause of action in the suit is deemed to have arisen with the passing of the judgement and

order dated 17 August, 2015 by the Hon’ble Supreme Court directing initiation of fresh acquisition proceedings in respect of the firm’s

Bhagalpur land.

(25) It is trite law that while considering a demurrer application like the present one, the Court will proceed on the basis that the averments made in

the plaint are all true and correct. What the Court will have to see is whether or not the statements in the plaint taken at face value disclose a cause of

action. This is different from the plaintiff having a cause of action. The plaintiff may have a cause of action but the suit may be framed in such a

manner that the plaint does not disclose a cause of action. The plaint will have to be read as a whole and meaningfully. The Court will have to be

careful not to be beguiled by clever drafting which may create an illusion of a cause of action. At this stage the Court is not at all concerned with the

defence of the defendants on merits. So long as the statements in the plaint disclose some sort of a cause of action, the plaint cannot be rejected under

O. 7 R. 11(a) of the CPC and it is irrelevant that the plaintiff may fail to prove his case at the trial of the suit. In the Judgment impugned before us the

Learned Judge has come to inter alia the following conclusions; (i) A partnership firm is not a distinct legal entity and the partnership property belongs

to all the partners constituting the firm. However, during the subsistence of the partnership no partner can deal with any portion of the partnership

property as his own. In the absence of a contract to the contrary partners are entitled to share equally the profits and must contribute equally to the

losses of the partnership.

(ii) The right and/or the option conferred by the provisions of Section 37 on the estate of the deceased partner cannot be properly exercised until the

account of the subsequent business are made available and as such the estate of a deceased partner is not bound to make the election until the profit

earned in respect of the share of the deceased partner is ascertained. On dissolution of the firm, they will be entitled to exercise their option conferred

by Section 37 when the accounts of the dissolved firm would be taken in accordance with the provisions of Section 48 of the Partnership Act. (iii) If it

is assumed that the partnership in the present case stood dissolved on the death of Deokinandan Jalan and accounts are sought for the subsequent

period in view of the continuation of the partnership business, the cause of action would continue from day to day as long as the business continue and

the firm continues to make profits and the plaintiffs are entitled to claim the deceased partner’s share in the profits. (iv) Where the claim does not

relate to the share in the dissolved firm but to the profits made by the use of the assets of the deceased partner, in that case, Art. 5 of the Schedule to

the Limitation Act, 1963 will not apply since the cause of action continues from day to day as long as the business continues and the firm makes

profits utilizing the deceased partner’s assets. (v) Art. 106 of the Schedule to the Limitation Act, 1908, corresponds to Art. 5 of the Schedule to

the Limitation Act, 1963. That article provides that the suit for an account and a share of the profits of the dissolved partnership firm must be instituted

within three years from the date of the dissolution. Limitation cannot apply so long as the partnership continues. A suit for taking the accounts of a

partnership would not be time barred unless the defendant makes out that there has been a dissolution of the partnership more than three years prior to

the institution of the suit.

(26) Although, there is a stray averment in one paragraph of the plaint to the effect that upon the death of Deokinandan Jalan in July, 1997, the firm

stood dissolved, reading the plaint as a whole, it is clear that the plaintiffs’ case proceeds on the basis that the firm is continuing. The defendants

also did not join issue on that count. Art. 5 of the Schedule to the Limitation Act, 1963, would not apply since it applies only in the case of a dissolved

firm.

(27) The plaintiffs have prayed for diverse reliefs which we have set out herein above. The question is whether the plaintiffs are entitled to claim such

reliefs in law. If, they are not, then the Court cannot grant them such relief even if an illusion of cause of action is created by intelligent drafting.

(28) We are in agreement with Mr. Ratnanko Banerji Learned Senior Counsel that Clause 6 of the partnership deed plays a vital role in deciding the

present case. It defines the right of the estate of a retiring partner or the estate of a deceased partner. In effect what it says is that if a partner dies, in

so far as the legal heirs/estate of that partner are concerned, the partnership shall be deemed to exist up to the end of the accounting period of the

year in which the death occurs and the legal heirs/estate of the deceased partner shall be entitled to receive all profits and be responsible for all losses

of the partnership firm up to the end of the said accounting period. This Clause like the other Clauses in the partnership deed constitutes a contract

inter se the partners. In our opinion, this Clause curtails and/or restricts the rights of the legal heirs of a deceased partner or a retiring partner which is

recognised by Section 37 of the Partnership Act.

(29) As regards the contention of the defendants that the suit is barred by limitation, we have a doubt in our mind. Admittedly, the firm never stood

dissolved. Hence, Art. 5 of the Schedule to the Limitation Act 1963 which pertains to a suit for accounts and a share of the profits of a dissolved

partnership, shall not apply. The plaintiffs have argued that since accounts were never finalised, their cause of action continues. In our opinion, the

plaintiffs have an arguable case on that score and it cannot be said that it appears from the statements made in the plaint that the suit is barred by

limitation. One must keep in mind that the Court must be absolutely sure that a suit is barred by any law from the averments made in the plaint taking

such averments to be correct before the Court can reject the plaint under O.7 R. 11(d) of the CPC. If there is any doubt in the mind of the Court, the

benefit of doubt must be given to the plaintiffs. Further, it was held by the Hon’ble Apex Court in the case of C. Nataranjan-vs.-Ashim Bai &

Anr. (supra) that applicability of one or other provision of the Limitation Act per se cannot be decisive for the purpose of determining the question as

to whether the suit is barred under it or some other article contained in the Schedule to the said Act. In Balasaria Construction (P) Ltd.-vs.-Hanuman

Seva Trust, (2006) 5 SCC 658, the Apex Court observed that the question of limitation is a mixed question of law and fact and on the ground of

limitation a plaint cannot be rejected under O. 7 R. 11(d) of the CPC. In Popat and Kotecha Property-vs.-State Bank of India Staff Association,

(2005) 7 SCC 510, the Apex Court observed that O. 7 R. 11 (d) is not applicable in a case where a question has to be decided on the basis of fact that

the suit is barred by limitation. There are conflicting views of various High Courts on the point as to whether or not the words ‘barred by law’

occurring in O. 7 R. 11 (d) of the CPC would include the suit being barred by limitation. In view of the aforesaid, in our opinion, it will not be proper to

reject the plaint in this suit on the ground that the suit is barred by limitation. Â

(30) However, we are inclined to accept the submission made on behalf of the defendants that since none of the reliefs claimed in the plaint can be

granted, the plaint ought to be rejected.

(31) Let us take the prayers one by one. The first prayer is for a declaration that the plaintiffs and the defendants are entitled to the assets and

properties of the said firm as the legal heirs of the original partners. It is trite law that the partners of a firm are entitled only to the profits of the firm

and upon dissolution of the firm they are entitled to the surplus of the sale proceeds of the assets and properties of the firm, if any, after meeting the

liabilities of the firm, in the share agreed upon in the partnership deed. The partners do not have any right, title or interest in respect of the assets and

properties of a firm so long as the firm is carrying on business. Hence, the plaintiffs as legal heirs of some of the original partners cannot maintain any

claim in respect of the assets and properties of the said firm. Their prayer for declaration of co-ownership of the assets and properties of the said firm

is not maintainable in law. The second prayer in the plaint is for a declaration that the plaintiffs along with the defendants are entitled to represent the

firm in all proceedings before the concerned authorities of the State of Bihar for the acquisition of its Bhagalpur land. The framing of this prayer

shows that this is a consequential relief claimed by the plaintiffs which can only be granted if the first prayer is allowed. Since, in our opinion, prayer

(a) of the plaint cannot be granted in law, prayer (b) also cannot be granted.

Prayer (c) is also a consequential relief. Only if the plaintiffs were entitled to claim prayer (a), they could claim prayer (c). We are not on whether or

not the plaintiffs will succeed in obtaining prayer (a). According to us, the plaintiffs are not even entitled to pray for the first relief indicated above as

the same cannot be granted under the law of the land. Consequently, prayer (c) also cannot be granted. Prayers (d) and (e) both pertain to dissolution

of the firm. Prayer (e) is for a decree of dissolution and for winding up of the affairs of the firm. Prayer (d) is for full accounts of the firm for the

purpose of its dissolution (emphasis is ours). However, it is settled law that only the partners of a firm can seek dissolution of the firm. Admittedly, the

plaintiffs are not partners of the said firm. Sec. 39 of the Partnership Act provides that the dissolution of partnership between all the partners of a firm

is called ‘the dissolution of the firm’. Sec. 40 provides that a firm may be dissolved with the consent of all the partners or in accordance with a

contract between the partners. Sec. 41 provides for compulsory dissolution of a firm. Sec. 42 stipulates that happening of certain contingencies will

cause dissolution of a firm but this is subject to contract between the partners. A partnership-at-will may be dissolved by any partner giving notice in

writing to the other partners of his intention to dissolve the firm, as provided in Sec. 43 of the Act. Sec. 44 empowers the Court to dissolve a firm on

the grounds mentioned therein on a suit of a partner.

Thus, it is clear that it is only a partner of a firm who can seek dissolution of the firm. The dissolution of a firm cannot be ordered by the court at the

instance of a non-partner. Hence, the plaintiffs are not entitled to claim dissolution of the said firm. Consequently, they are also not entitled to pray for

accounts for the purpose of dissolution of the firm.

(32) What should the Court do if it finds that even taking the averments in the plaint at face value, not one of the reliefs claimed in the plaint can be

granted? Should the Court send the parties to trial? We think not. It will be an exercise in futility. It will be a waste of time, money and energy for both

the plaintiffs and the defendants as well as unnecessary consumption of Court’s time. It will not be fair to compel the defendants to go through the

ordinarily long drawn process of trial of a suit at huge expense, not to speak of the anxiety and un-peace of mind caused by a litigation hanging over

one’s head like the Damocles’s sword. No purpose will be served by allowing the suit to proceed to trial since the prayers as framed cannot

be allowed on the basis of the pleadings in the plaint. The plaintiffs have not prayed for leave to amend the plaint. When the court is of the view just

by reading the plaint alone and assuming the averments made in the plaint to be correct that none of the reliefs claimed can be granted in law since the

plaintiffs are not entitled to claim such reliefs, the Court should reject the plaint as disclosing no cause of action. The reliefs claimed in a plaint flow

from and are the culmination of the cause of action pleaded in the plaint. The cause of action pleaded and the prayers made in a plaint are inextricably

intertwined. In the present case, the cause of action pleaded and the reliefs claimed are not recognized by the law of the land. Such a suit should not

be kept alive to go to trial. In the words of V. R. Krishna Iyer, J. (Re: T. Arivandandam-vs.-T.V. Satyapal, supra), such a suit should be nipped in the

bud. According to us, this is such a suit.

(33) In Pearlite Liners (P) Ltd. (supra), the plaintiff had challenged a transfer order. She had claimed three reliefs in the plaint. Firstly, a declaration

that the transfer order was illegal, void and inoperative; secondly, a declaration that she continued to be in service of the defendant company and was

entitled to all emoluments including the salary; and thirdly, permanent injunction restraining the defendant from holding an enquiry against her. The

Apex Court took each of the prayers and concluded that in the factual background of the case none of the reliefs sought in the plaint could be granted

to the plaintiff under the law. The question that the Apex Court then posed to itself was, whether or not such a suit should be allowed to continue and

go for trial? The question was answered by observing that such a suit should be thrown out at the threshold. A suit which is bound to be dismissed for

want jurisdiction of a court to grant the reliefs prayed for should not be tried at all. The Apex Court upheld the order of the Trial Court rejecting the

plaint and that of the Lower Appellate Court which had affirmed the decision of the Trial Court and reversed the order of the High Court whereby the

suit had been restored and remanded to the Trial Court for being decided on merits. In our view, the ratio of the Apex Court in the said case squarely

applies to the case before us. The learned Single Judge overlooked this aspect of the matter.

(34) In view of the aforesaid, the judgment and order impugned before us is set aside. The plaint of CS No. 79 of 2017 stands rejected on the ground

that it discloses no cause of action. Needless to say, as provided in O. 7 R. 13 of the CPC, this order of rejection of the plaint shall not of its own

preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. Â

(35) Both the appeals and the connected stay applications are accordingly allowed with costs assessed at Rs. 50,000/- in each of the appeals.

(36) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.

I agree.

(Jyotirmay Bhattacharya, CJ.)

(Arijit Banerjee, J.)

Later:-

After the judgment is delivered, the respondents pray for stay of operation of this judgment and order. Such prayer is considered and refused.