Delhi High Court
G.C. Singh Puri & Ors. vs Smt. Surjit Kaur on 28 January, 1999
Equivalent citations: 2000 IAD Delhi 428
Bench: M Siddiqui
ORDER
L.A. 7709/93 AND 7306/94
1. By this order, I propose to dispose of IAs. 7709/93 and 7306/94.
2. I.A. 7709/93 is an application under Order 39, Rules 1-2 CPC filed by the plaintiff seeking ad interim injunction against the defendant. I.A., 7306/94 is an application under Order 39, Rule 4 CPC filed by the defendant seeking vacation of the Interim order dated 17.11.1993.
3. The plaintiffs he filed this suit for partition of the suit plot No. X-72, Udyog Nagar, Peeragarhi on the ground that the suit plot had been allotted to a firm styled M/s. Ramco of which the plaintiff No. 1 and mother of plaintiff No. 2 Smt. Mahinder Kaur (since deceased) and the defendant were partners. On the contrary, it is stated in the application I.A. No. 7306/94 that by the deed of dissolution cum partnership dated 1.8.1985, the firm styled M/s. Ramco was dissolved. According to the said Dissolution/Partnership Deed, plaintiff No. 1 and Smt. Mahinder Kaur ( mother of plaintiff No. 2) withdraw from the partnership firm and all the assets of the erstwhile partnership firm including the suit plot were left to the continuing partners i.e. the present defendant and her son, Jawahar Lal Singh. After dissolution of the erstwhile firm, all its assets including the suit plot are in possession of the defendant. On these averments it is contended that the plaintiffs have failed to make out a prima case for grant of ad interim injunction.
4. At the outset it needs to be highlighted that by the orders dated 9.2.1996, proceedings in the suit have been stayed under Section 34 of the Arbitration Act.
5. The first question to be considered is: whether the plaintiffs have made out a prima facie case for grant of ad interim injunction sought by them?
6. It is beyond the Rule of controversy that the suit plot had been allotted to the erstwhile firm styled M/s. Ramco of which plaintiff No. 1 and mother of plaintiff No. 2, namely Smt. Mahinder Kaur and the defendant were partners. Learned counsel for the defendant contended that the aforesaid firm was dissolved vide dissolution-cum-partnership deed dated 1.8.85 and according to the said deed of dissolution, the plaintiff No. 1 and Smt. Mahinder Kaur, the erstwhile partners withdraw from the partnership and the assets of the said partnership firm were left to the continuing partners and as such the plaintiffs have no right or interest in the suit plot. The defendant has filed a photostat copy of the said deed of dissolution-cum-partnership in support of the application filed under Section 34 of the Arbitration Act. The learned counsel for the plaintiffs has fairly conceded that in the year 1990 the plaintiff had instituted the civil suit No. 865/90 against the defendant for permanent injunction and in that suit the defendant had filed an application under Section 34 of the Arbitration Act accompanied by a photo copy of the dissolution/partnership deed dated 1.8.85. He has also fairly conceded that for the first time the plaintiffs came to know about the existence of the said deed of dissolution-cum-partnership in the year 1993. It is significant to mention that the plaint is conspicuous by the absence of any reference to the said document for reasons best known to the plaintiffs, they did not even challenge the validity of the dissolution-cum-partnership deed dated 1.8.1985. This circumstance alone swings the pendulum against the plaintiff's case for grant of an ad interim injunction in their favour. Learned counsel for the plaintiffs contended that there is a dispute between the parties with regard to the genuineness of the partnership-cum dissolution deed dated 1.8.1985. He has invited my attention to the following observations made by the Division Bench in the order dated 11.9.1996 passed in FAO(OS) 51 AND CM 163-5/96:
"Going by the disputes now raised before us by learned counsel for the appellant in regard to the genuiness of the Partnership-cum-dissolution deed dated 1.6.1985, it is in any event clear that there is thus dispute which would itself constitute a matter for reference to arbitration, irrespective of the question as to whether we go by the partnership deed dated 1.6.1979 or the partnership-cum-dissolution deed dated 1.8.1985. It is , thus, clear that there are disputes which have to be referred to arbitration. The suit filed by the appellants was liable to be stayed under Section 34 of the Arbitration Act, 1940."
7. It is significant to mention that even after the aforesaid order by the Division Bench, the plaintiffs did not chose to amend the plaint raising a plea regarding genuineness of the dissolution/partnership deed dated 1.8.85.
8. In this view of the matter, the said deed of dissolution-cum-partnership cannot be treated as an invalid document as contended by the counsel for the plaintiff. This dissolution-cum-partnership deed clearly recites that the plaintiff No.1 and plaintiff No. 2's mother Smt. Mahinder Kaur retired from the partnership and all the assets of the erstwhile partnership including the suit plot were left to the continuing partners i.e. the present defendant and her son Jawahar Lal Singh. Viewing the aforesaid circumstances. I am constrained to observe that the plaintiffs have failed to prove prima facie case for grant of an ad interim injunction against the defendant. The balance of convenience also does not lie in favour of grand of ad interim injunction as comparative inconvenience or mischief which is likely to arise from granting the ad interim injunction will be greater than which is likely to arise from withholding it.
9. For the foregoing reasons, the application, I.A. 7709/93 is disallowed. I.A. 7306/94 is allowed and the interim order dated 17.11.1993 is vacated. Before I part with this order, I would like to make it clear that nothing said in the order should be taken into consideration when the disputes between the parties on merits are decided in any proceedings that any party may be advised to initiate.
