Prabhakar Tulshiram Shegaonkar and Another vs M.A. Haffis and Another

A.P. Bhangale, J.—This appeal was listed for final hearing as early hearing was sought because the parties are senior citizens. The appellants/original plaintiffs made a grievance about the impugned order dt. 6.7.2004 passed below Exh. 26 by the learned Civil Judge (Sr. Dn.), Wardha in Special Civil Suit No. 71 of 2002. The learned Counsel for the appellants submitted that, the trial Court, though it is a suit for specific performance of contract between the appellants and defendant No. 1 against whom specific performance of contract is sought, proceeded to reject the claim under O. VII, R. 11 of the CPC on the ground that the plaint is barred by Section 69(2) of the Indian Partnership Act, 1932. The learned Counsel for the appellants submitted that Section 69(2) of the Indian Partnership Act was not attracted as the suit was between the private parties and not on the basis that the plaintiff is a partnership firm. Section 69(2) of the Indian Partnership Act, 1932 bars the suit to enforce the right arising from a contract entered into by or on behalf of a partnership firm against any third party. My attention is invited to copy of the plaint annexed at Exh. 1-B in Special Civil Suit No. 71 of 2002. The plaintiffs did not claim that it was a suit by or on behalf of a partnership firm. The plaintiffs had, in their plaint, alleged that defendant No. 1 is a retired Revenue Inspector holding agricultural lands with some of his relatives. The plaintiffs had alleged compromise in the earlier suit being Regular Civil Suit No. 367 of 1977 in the Lok Adalat and claimed that there was an agreement of sale dt. 14.10.1998 under which the plaintiffs had paid a sum of Rs. 1,25,000/- etc. to defendant No. 1 amongst other payments averred in the plaint claiming that the plaintiffs were ready and willing to pay the consideration to get the sale deed executed, pursuant to the agreement entered into by the plaintiffs with defendant No. 1. Thus, although nowhere in the plaint there was any claim that it was a suit by or on behalf of the partnership firm, but despite it:

The learned trial Judge proceeded to reject the plaint under O. VII, R. 11 of the CPC upon the assumption that the suit was by or on behalf of the partnership firm. Such misplaced assumption on the part of the learned trial Judge was without any reasonable basis as it was contrary to the averments made in the plaint.

O. VII, Rule 11 of the CPC reads thus:

Rejection of plaint.- The plaint shall be rejected in the following cases:

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law:

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.

The Court may be justified in rejecting the plaint under the aforesaid provision when, prima facie, on reading the plaint as a whole, it does not disclose any cause of action or if it is barred, prima facie, upon reading the averments in the plaint. It is true that the Court may reject the plaint under O. VII, Rule 11 of the CPC if it is barred by any law, but even in that case, the Court has to convince itself by reading the averments in the plaint that the plaint is liable to be rejected as barred by law.

Applying the above text in the present case, instead of reading averments in the plaint, the learned trial Judge appears to have preferred bare reading of Section 69(2) of the Indian Partnership Act and fell into an error of law, particularly when the plaintiffs did not claim that it was a suit by or on behalf of the partnership firm to attract Section 69(2) of the Indian Partnership Act. I must note that although an opportunity of hearing is granted by adjourning this appeal after hearing the learned Counsel for the appellants, the respondent No. 1 or the Advocate representing respondent No. 1 did not appear. Under these circumstances, considering that the impugned order is absolutely unsustainable according to law upon bare reading of the plaint, it has to be quashed and set aside. Hence, the appeal is allowed. The impugned order is quashed and set aside. The plaint is restored. The learned trial Judge is directed to proceed further and decide the suit on its own merits and in accordance with law. Appeal is allowed accordingly. The record and proceedings be sent back to the trial Court.