Shri Kewal Kishan vs M/S Khurana Kaj House
2010 Latest Caselaw 4716 Del

*            HIGH COURT OF DELHI : NEW DELHI

      CRP No. 150/2010 and C.M. No. 14598/2010 (Stay)

%            Judgment reserved on: 29th September, 2010

             Judgment delivered on: 06th October, 2010

      Shri Kewal Kishan,
      Son of Late Shri Santokh Singh,
      Through His Attorney Sh. Devinder Pal,
      1179, Gali No. 12, Main Road,
      Govind Puri, Kalkaji,
      New Delhi-110 019.
                                                   ....Petitioner.

                          Through:      Mr. Sanjay Goswami, Adv.

                   Versus

      M/s Khurana Kaj House
      (Now Known as Khurana Traders)
      Shop No. 3, 1170, Gali no. 12, Main Road,
      Govind Puri, Kalkaji,
      New Delhi- 110 019
                                                   ..... Respondent

                          Through:      Nemo.



Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                 Yes

2. To be referred to Reporter or not?              Yes


CRP No. 150/2010                                         Page 1 of 7
 3. Whether the judgment should be reported
   in the Digest?                          Yes

V.B.Gupta, J.

Present revision petition under Section 115 of the Code of Civil

Procedure 1908 (for short as „Code‟) has been filed by petitioner

against order dated 12th May, 2010, passed by Senior Civil Judge,

New Delhi, vide which application of petitioner under Order 7 rule 11

of the Code was dismissed.

2. Brief facts of this case are that, respondent (plaintiff in the trial

court) is a partnership firm with Mr. Ravinder Pal Singh and Mr.

Paramjeet Singh as its partner. Respondent‟s firm had taken the suit

property on rent from the father of petitioner in 1976-1977. Petitioner

has been threatening to raise construction over the roof of the suit

property which form part of respondent‟s tenancy. Accordingly,

respondent filed a suit for permanent and mandatory injunction

against petitioner and Municipal Corporation of Delhi.

3. Petitioner in its written statement took the plea that respondent

is an illegal and unauthorized sub-tenant in the suit shop and he never

accepted respondent‟s firm as its tenant.

4. After filing of the written statement, later on petitioner filed an

application under Order 7 rule 11 of the Code, stating that as apparent

from the plaint, respondent‟s firm has not been registered with the

Registrar of Firms and as such suit filed by it is barred under Section

69 of The Indian Partnership Act (for short as „Act‟) and petition is

liable to be dismissed.

5. In reply, it is stated by respondent that, suit filed by them is for

injunction, which is not arising out of any contract between the parties

and as such Section 69 (2) of the Act has no application.

6. It is contended by learned counsel for petitioner that Section 69

of the Act, clearly mandates that an unregistered partnership firm

cannot file a suit against any third party on a cause of action arising

out of a contract entered into by the partnership firm. Since, entire

basis of the suit is that the contractual tenancy of respondent as regard

the suit shop also included the roof rights, as such present suit is not

maintainable in the absence of necessary registration of the

respondent‟s firm under the Act.

7. Other contention is that, inspite of filing of the written

statement and not taking any specific defence with regard to the

registration of the respondent‟s firm under the Act, application under

Order 7 rule 11 of the Code is maintainable. In support, learned

counsel has relied upon the following judgments:-

(i) Saleem Bhai and Others Vs. State of Maharashtra and others, AIR 2003 Supreme Court 759;

(ii) Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others, (2004) 3 Supreme Court Cases 137 and

(iii) M/s Raptakos Brett & Co. Ltd. Vs. Ganesh Property, AIR 1998, Supreme Court 3085.

8. Section 69 (1) and (2) of the Act, relevant for deciding the

present controversy read as under;

"69. Effect of non-registration- (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.

(2) No suit to enforce a right arising from a contract shall be instituted in any court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.

(3) xxxxx xxxxx xxxxx"

9. Respondent has filed the suit for injunction against petitioner on

the allegations that he (petitioner) is threatening to raise construction

over the roof which forms part of his tenancy.

10. On the other hand, as per written statement filed by petitioner

its stand is that respondent is an illegal and unauthorized sub-tenant in

the suit property. Petitioner never accepted respondent‟s firm as its

tenant.

11. Thus, as per petitioner‟s own case there is no privity of contract

between him and the respondent‟s firm. Moreover, petitioner never

took any specific plea in the written statement that suit is barred under

Section 69 of the Act.

12. Since, the suit of respondent is not for enforcement of any right

arising from any contract, the trial court rightly relied upon Haldiram

Bhujjiawala & Another Vs. Anand Kumar/Deepak Kumar and

another, JT 2000 (2) SC 596, in which it was observed;

"The above Report and provisions of the English Acts, in our view, make it clear that the purpose behind Section 69 (2) was to impose a disability on the unregistered firm or its partners to enforce rights arising out of the contracts entered into by the plaintiff firm with third party-defendant in the course of the firm‟s business transactions."

13. The words used by Supreme Court in Halidram Bhujjiawala

(Supra) are that "in the course of firm‟s business transactions".

14. Since, petitioner never accepted respondent‟s firm as its tenant

and as such, there is no contract between petitioner and respondent‟s

firm. Under these circumstances, provisions of Section 69 (1) and (2)

of the Act, are not applicable to the facts of the present case.

15. Various judgments cited as above by learned counsel for

petitioner are not applicable to the facts of the present case.

16. It is well settled that those litigants who are in the habit of

challenging each and every order of the trial court, even if the same is

based on sound reasoning, simply waste the time of the courts by

filing frivolous petitions. No mercy should be shown to such type of

litigants. Since, there is no infirmity, illegality or error in the

impugned order passed by the trial court, present petition being

frivolous one and which has been filed just to delay the proceedings

pending before the trial court, is hereby dismissed with costs of

Rs.20,000/- (Rupees Twenty Thousand Only).

17. Petitioner is directed to deposit the costs by way of cross

cheque with Registrar General of this court, within four weeks from

today.

CM No. 14598/2010 (stay)

18. Dismissed.

19. List for compliance on 8th November, 2010.

October 06, 2010                                      V.B. GUPTA, J.
ab