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2018 (2) TMI 2098
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....le dealing with an application Under Order VII Rule 11 Code of Civil Procedure. Revision petition preferred by the Appellant against the said order also stands dismissed by the High Court vide judgment dated December 12, 2016. Dissatisfied with the outcome, the Appellant has approached this Court challenging the aforesaid orders of the courts below. The Appellant pleads that the High Court as well as the trial court have failed to appreciate that the plaint in question did not disclose any cause of action and was barred by Order II Rule 2 of the Code of Civil Procedure which was writ large on the record and for this no evidence is required. In order to appreciate the issue involved, it would be necessary to traverse through the relevant facts, which are as under: 2. (A) Respondent No. 1 was the sole proprietor of M/s. Sen Industries-Respondent No. 4 herein. A piece of land in an industrial area of District Burdwan was allotted by the Asansol Durgapur Development Authority (ADDA) in the name of Respondent No. 4 on long term leasehold basis. Subsequently, Respondent No. 4 was converted into a partnership firm with the Appellant, Respondent No. 1 and Respondent No. 2-Anjan Mallick (o....
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....llant and Others claiming as under: a) for dissolution of partnership firm "Sen Industries"; b) for accounts; and c) appointment of receivers etc. against the Appellant and the proforma Respondent. By order dated July 31, 2014, the Civil Judge dismissed Suit No. 268/2008 observing as under: ...that the Plaintiff was a partner of the firm namely "Sen Industries" but he retired from the firm by executing MOU dated 23.03.1994, in this situation the retired partner cannot claim for dissolution of the firm and as per this MOU, accounts were already settled. Aggrieved, Respondent No. 1 filed an appeal, being Appeal No. 25/2014, before the Civil Judge (Senior Division), Durgapur, challenging the judgment and orders passed by the Civil Judge (Junior Division) in the aforesaid proceedings. This appeal is still pending adjudication. 3. Respondent No. 1 has filed the instant suit, being T.S. No. 126 of 2015, in the Court of Civil Judge (Junior Division), 1st Court at Durgapur, which is the subject matter of the present proceedings, claiming to be the alleged lessee of the said leasehold property in question against the Appellant and Others with the following prayers: a) for a d....
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....dure. I am of further view that without taking evidence this Court cannot dispose of the plea that the instant suit is barred Under Order 2 Rule 2 of Code of Civil Procedure It would not be proper to reject the suit on that ground at this stage. Even the plea that the suit is barred by the principle of res judicata cannot be effectively determined without taking any evidence. Considering the entire facts and circumstances, I am of view that the petition Under Order 7 Rule 11 of Code of Civil Procedure filed by the Defendant is liable to be rejected at this stage. 7. The High Court has, likewise, affirmed the order with the following observations: In the instant case, the Plaintiff/opposite party filed a suit for declaration of his leasehold right acquired in the name of M/s. Sen Industries and permanent injunction restraining the other persons, who name are recorded in the register maintained by the appropriate authority, from removing articles and/or from changing the nature and character of the same. By taking out the application Under Order VII Rule 11(d) of the Code, the Defendant Nos. 1 and 2 tried to invite the attention of the trial court that previous to the said suit th....
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....artners. It is also admitted that thereafter Defendant No. 3 granted the lease and leasehold rights to the partnership firm in respect of the land in question on which the partnership firm started doing M.S. Fabrication Mechanical Jobworks. Respondent No. 1 has further stated that some disputes arose between the parties in respect of said partnership deed and has blamed the Appellant as well as Respondent No. 2 in denying and depriving him as a partner from his rights, illegally and unlawfully. Though, there is a reference to filing of suit by him in the year 2008, i.e., T.S. No. 268 of 2008 which was filed for dissolution of partnership and for accounts of the partnership firm and it is accepted that the said suit was dismissed on contest and there against the appeal is filed by Respondent No. 1 which is still pending. However, nothing mentioned in the plaint as to what prevailed with the trial court in dismissing the suit. Instead it is only stated that the subject matter of the said suit is totally different from the subject matter of the suit which is now filed. Insofar as the suit in question is concerned it is alleged that though the lease is given for doing M.S. Fabrication ....
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....dure. 10. Therefore, insofar as trial court dismissing the said application of the Appellant, which is upheld by the High Court, cannot be faulted with. 11. We may usefully refer to the judgment of this Court in Kamala and Ors. v. K.T. Eshwara Sa and Ors. (2008) 12 SCC 661. That was a case wherein the trial judge allowed an application for rejection of the plaint in a suit for partition of family properties and the same was affirmed by the High Court as well. An appeal against the order of the High Court was filed before this Court. While examining the scope, ambit and exercise of power Under Order VII Rule 11 of Code of Civil Procedure, this Court held as under: Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking Clause (d) of Order 7 Rule 11....