TaxTMI 
TaxTMI 
2021 (10) TMI 249
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....al Jalan, Sewbhagwan Jalan, Keshabdeo Jalan, Nandkishore Jalan, Deokinandan Jalan, Chiranjilal Bajoria and Kishorilal Jalan were the partners in the partnership firm. It is not in dispute that none of the partners are alive. Plaintiff Nos. 1, 2 and 3 are the sons of Late Chiranjilal Bajoria, who died on 31st December 1981. Plaintiff Nos. 4 and 5 are the sons of Late Deokinandan Jalan, who died on 12th July 1997. Plaintiff No. 6 is the son of Late Mohanlal Jalan, who died on 1st May 1982. The defendants are the legal heirs of the other original partners in the partnership firm. 4. A civil suit being C.S. No. 79 of 2017 came to be filed by the plaintiffs before the Calcutta High Court seeking, inter alia, the following reliefs:"( a) Decree for declaration that the plaintiffs along with the defendants are entitled to the assets and properties of the firm "Soorajmull Nagarmull" 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 3 above; (b) Decree for declaration that the plaintiffs along with the defendants are consequently entitled to represent t....
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....the original defendants filed appeals being APO Nos. 491 and 520 of 2017 before the Division Bench of the High Court. The Division Bench of the High Court by the impugned judgment and order dated 14th September 2018 held that the reliefs, as claimed in the plaint, could not be granted, and therefore, while allowing the appeals, rejected the plaint being C.S. No. 79 of 2017. It, however, observed that, as provided under Order VII Rule 13 of the Civil Procedure Code (hereinafter referred to as the "CPC"), the order of rejection of the plaint shall not of its own force preclude the plaintiffs from presenting a fresh plaint in respect of the same cause of action. Being aggrieved thereby, the present appeals. 6. We have heard Shri Gopal Jain, learned Senior Counsel appearing on behalf of the appellants, Dr. A.M. Singhvi, learned Senior Counsel appearing on behalf of the respondent No.1, and Shri K.V. Viswanathan and Shri Gopal Sankaranarayanan, learned Senior Counsel appearing on behalf of the respondent Nos. 2, 3, 7 to 9, 11, 12 and 16 to 21. 7. Shri Gopal Jain, learned Senior Counsel appearing on behalf of the appellants, submitted that the Division Bench of the High Court of Calcut....
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....the submission in that regard is without merit. He submitted that Section 44 of the said Act provides that the dissolution of the firm could be maintained on the ground specified therein, only if the suit is at the instance of the partners. He submitted that admittedly the plaintiffs were not the partners, and as such, the suit at their instance was not tenable. The learned Senior Counsel relies on the judgments of this Court in the cases of T. Arivandandam v. T.V. Satyapal and Another [(1977) 4 SCC 467] and Pearlite Liners (P) Ltd. v. Manorama Sirsi [ (2004) 3 SCC 172], in support of his submission, that if the reliefs, as sought in the plaint, cannot be granted, then the only option available to the Court is to reject the plaint. 9. Shri Viswanathan and Shri Gopal Sankaranarayanan, learned Senior Counsel appearing on behalf of respondent Nos. 2, 3, 7 to 9, 11, 12 and 16 to 21, also made similar submissions. 10. It will be relevant to refer to Sections 40, 42, 43 and 44 of the said Act:" 40. Dissolution by agreement.-A firm may be dissolved with the consent of all the partners or in accordance with a contract between the partners. 41. ....... 42. Dissolution on the happeni....
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....ant to refer to Clauses 4, 6 and 7 of the Partnership Deed dated 6th December 1943: "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. ...... 6. In case of death of any partner or retirement during the continuance of the partnership shall be deemed to exist only upto to 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. 7. This Indenture further witnesseth that the said parties hereto hereby mutually covenant and agree that they will carry on the said business in partnership until dissolution under and in accordance with the provisions and stipulation hereinabefore stated or contained in the said Indenture dated the 1st day of September, 1938 so far as the same respectively are now subsisting and capable of taking and are applicable to the altered circumstances here....
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....ul - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Cr. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi: "It is dangerous to be too good." [emphasis supplied] 15. It could thus be seen that this Court has held that reading of the averments made in the plaint should not only be formal but also meaningful. It has been held that if clever drafting has created the illusion of a cause of action, and a meaningful reading thereof would....
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.... the plaint and the lower appellate court rightly affirmed the decision of the trial court in this behalf. The High Court was clearly in error in passing the impugned judgment whereby the suit was restored and remanded to the trial court for being decided on merits. The judgment of the High Court is hereby set aside and the judgments of the courts below, that is, the trial court and the lower appellate court are restored. The plaint in the suit stands rejected." [emphasis supplied] 17. It could thus be seen that the court has to find out as to whether in the background of the facts, the relief, as claimed in the plaint, can be granted to the plaintiff. It has been held that if the court finds that none of the reliefs sought in the plaint can be granted to the plaintiff under the law, the question then arises is as to whether such a suit is to be allowed to continue and go for trial. This Court answered the said question by holding that such a suit should be thrown out at the threshold. This Court, therefore, upheld the order passed by the trial court of rejecting the suit and that of the appellate court, thereby affirming the decision of the trial court. This Court set aside the ....
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....ning 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 ....
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....w, the said judgment rather than supporting the case of the plaintiffs, would support the case of the defendants. Paragraphs 23.3, 23.4, 23.5 and 23.6 in the case of Dahiben (supra) read thus: "23.3. The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted. 23.4. In Azhar Hussain v. Rajiv Gandhi [Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315. Followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLineGuj281 : (1998) 2 GLH 823] this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words : (SCC p. 324, para 12) "12. ... The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless, and bound to prove abortive should not be p....