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CRA/72/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 72 of 2010
======================================
RAMABHAI
ISHWARBHAI PATEL - Applicant
Versus
KAMLESHKUMAR
PARSOTTAMBHAI PATEL & 3 - Opponents
======================================
Appearance :
MR
JV JAPEE for the Applicant.
None for the
Opponents.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 22/06/2010
ORAL
ORDER
1. The
present Civil Revision Application under Section 115 of the Code of
Civil Procedure has been preferred by the petitioner herein
original defendant No.2 to quash and set aside the impugned judgement
and order passed by the learned Principal Senior Civil Judge,
Palanpur dated 09/04/2010 below Exh-158 in Special Civil Suit No.54
of 2001, by which, learned Trial Court has dismissed the said
application submitted by the petitioner herein – original defendant
No.2 to dismiss the Suit under Order VII Rule 11 of the Code of Civil
Procedure.
2. At
the outset, it is required to be noted that Special Civil Suit No.54
of 2001 has been preferred by the respondent No.1 – original
plaintiff for dissolution of partnership firm and accounts of a
partnership firm, for declaration and permanent injunction contending
inter alia that there was a partnership firm namely Kisan Dairy and
the petitioner herein original defendant No.2 was partner of the
said firm along with the plaintiff. It is also specific case on
behalf of the plaintiff that by getting the signature of the
plaintiff on the deed of dissolution of the partnership firm
fraudulently and without paying any amount, and, therefore, deed of
dissolution is required to be quashed and set aside. The aforesaid
aspect shall be dealt with hereinafter.
At
the outset, it is required to be noted that the Suit is of the year
2001. Admittedly, after written statement was filed and issues were
framed, the evidence of the plaintiff side was already over and
thereafter, after a period of almost 9 years and after evidence of
the plaintiff is over, the petitioner original defendant No.2
submitted that application under Order VII Rule 11 of the Code of
Civil Procedure to dismiss the Suit.
The
learned Trial Court by impugned order dated 09/04/2010 dismissed the
said application by holding that considering the issues framed,
contention on behalf of the petitioner original defendant No.2
are required to be considered at the time of trial. Being aggrieved
and dissatisfied with the aforesaid order, the petitioner herein
original defendant No.2 has preferred the present Civil Revision
Application under Section 115 of the Code of Civil Procedure.
3. Mr.Japee,
learned advocate appearing on behalf of the petitioner original
defendant No.2 has vehemently submitted that as such there are no
averments and allegations against the petitioner original
defendant No.2. It is further submitted by him that admittedly in the
evidence, the plaintiff has admitted the dissolution of the
partnership firm and merely because some dispute arose subsequently
with respect to settlement of the accounts, the plaintiff cannot be
permitted to back out from the dissolution of the partnership firm.
It is submitted that after dissolution of the partnership firm, a new
firm was formed. However, the said new partnership firm is not
registered and, therefore, the present Suit is not maintainable under
Section 69 of the Partnership Act. It is further submitted that even
in the plaint also, the plaintiff has also admitted with respect to
dissolution of the earlier partnership firm and, therefore, it is
requested to allow the present Civil Revision Application and to
quash and set aside the impugned order.
4. Having
heard Mr.Japee, learned advocate appearing on behalf of the
petitioner original defendant No.2 and considering the impugned
order passed by the learned Trial Court and considering the plaint
and the issues framed, it cannot be said that the learned Trial Court
has not committed any error in dismissing the application submitted
by the petitioner original defendant No.2 to dismiss the Suit
under Order VII Rule 11 of the Code of Civil Procedure.
5. It
is to be noted that at the time when the petitioner submitted the
application to dismiss the Suit under Order VII Rule 11 of the Code
of Civil Procedure, not only issues were framed but the parties went
ahead to lead the evidence and at the relevant time, the plaintiff
evidence was already closed. At that stage, the petitioner submitted
the application to dismiss the Suit under Order VII Rule 11 of the
Code of Civil Procedure. It is true that the application under Order
VII Rule 11 of the Code of Civil Procedure can be made at any point
of time, but for that purpose, what is required to be considered is
the necessary averments in the plaint as a whole. Considering the
averments in the plaint and case on behalf of the plaintiff, the
signature was obtained on the deed of dissolution of partnership firm
by fraud and cheques were taken away and, therefore, it has been
prayed to declare that such a dissolution of the partnership firm is
null and void and not binding to the plaintiff and, therefore, the
aforesaid Suit is not required to be dismissed in exercise of power
under Order VII Rule 11 of the Code of Civil Procedure. The aforesaid
aspect is required to be considered at the time of appreciation of
evidence at the time of trial. In view of the above, it cannot be
said that the Trial Court has committed any error in dismissing the
application submitted by the petitioner original defendant No.2
under Order VII Rule 11 of the Code of Civil Procedure to dismiss the
Suit.
6. Now,
so far as the contention on behalf of the petitioner that the Suit
against the new partnership firm is not maintainable as the same is
not registered as no subsequent Suit is filed for dissolution of the
partnership firm. The Suit is for declaration that the dissolution of
partnership firm is not binding to him and for written of the cheques
and for accounts.
7. Under
the circumstances, on the aforesaid ground, the Suit is not required
to be dismissed while considering the application submitted by the
petitioner original defendant No.2 under Order VII Rule 11 of the
Code of Civil Procedure to dismiss the Suit.
8. In
view of the above, there is no substance in the present Civil
Revision Application, which deserves to be dismissed and is
accordingly dismissed.
[M.R.SHAH,J]
*dipti
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