Madhya Pradesh High Court
Jagdish vs M/S Siddhi Vinayak Developers on 7 February, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 7th OF FEBRUARY, 2024
CIVIL REVISION No. 487 of 2023
BETWEEN:-
JAGDISH S/O KANHAIYALALJI GARG 368 M.G. ROAD, MALHARGANJ,
1. INDORE. PRESENT ADD:- 40-41 CHHATRAPATI NAGAR, AIRPORT
ROAD INDORE (MADHYA PRADESH)
SMT. RITU W/O ROSHAN PORWAL, AGED ABOUT 18 YEARS, JOY
2.
BUILDERS COLONY, INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ASHOK KUMAR SETHI, SENIOR ADVOCATE ASSISTED BY SHRI
HARISH JOSHI, ADVOCATE)
AND
M/S SIDDHI VINAYAK DEVELOPERS 18 JAY BUILDERS COLONY,
1.
INDORE (MADHYA PRADESH)
KAMAL JAIN S/O GENDA LAL JI JAIN FLAT NO. 102, RANI SATI
2.
APARTMENT, AHILYAMATA COLONY, INDORE (MADHYA PRADESH)
SMT. JYOTI BALA GARG 368, M.G. ROAD, BADA GANPATAI ROAD,
3.
MALHARGANJ, INDORE (MADHYA PRADESH)
STATE OF MADHYA PRADESH THROUCH COLLECTOR DIST. INDORE
4.
(MADHYA PRADESH)
M/S JRG REALTY (THROUGH PARTNER, AS STATED IN THE PLAINT)
5. THROUG PARTNER GHANSHYAM S/O HARIKISHANJI GOYAL 304
MILIND MANOR, 2, RNT MARG, INDORE (MADHYA PRADESH)
GHANSHYAM S/O HARIKISHANJI GOYAL 56, KAILASH MARG,
6.
MALHARGANJ INDORE (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENTS NO. 5 & 6 BY SHRI SAMEER ANANT ATHAWALE AND SHRI
ADITYA GOYAL, ADVOCATES)
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 09-02-2024
19:15:49
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This revision coming on for admission this day, the court passed
the following:
ORDER
The petitioners / defendants No.1 & 2 have filed this Civil
Revision under Section 115 of the Code of Civil Procedure, 1908 being
aggrieved by the order dated 06.07.2023 passed by the XXVI District
Judge, Indore in Civil Suit No.1380/2022, whereby the application filed
under Order XXX Rule 1 of the CPC has been rejected.
02. Draped in brevity, the relevant facts are that respondents No.5 &
6 have filed a suit for declaration and permanent injunction against
petitioners and respondents No.1 to 4 by impleading them as defendants
No.1 to 6. The plaintiffs have valued the suit to Rs.12,01,80,880/-. The
plaintiffs are seeking decree of declaration that the sale deed dated
21.04.2022 be declared as void and defendants No.3, 4 & 5 be restrained
to alienate the suit property.
03. Plaintiff No.1 is a partnership Firm, in which plaintiff No.2 and
defendants No.1 & 2 are partners which was incorporated on
20.09.2010.
04. According to the plaintiffs, the plaintiff / Firm purchased the
land as mentioned in paragraph - 5 of the plaint. The defendants No.1 &
2 without the consent of the plaintiffs have sold the land by way of
registered sale deed which gave cause of action for filing the suit.
05. The defendants appeared in the suit and filed an application
under Order XXX Rule 1 of the CPC that suit in the name of Firm can
be filed by two or more partners, therefore, the suit filed in the name of
Firm by one partner i.e. plaintiff No.2 is not maintainable which is liable
to be dismissed.
06. The plaintiffs filed a reply opposing the application on the
ground that similar objection could have raised in an application filed
under Order VII Rule 11 of the CPC, hence, this application is barred by
way of constructive res judicata. It is further submitted that even one
partner can file a suit against remaining partners as held by the High
Court of Kerela in the case of Thomas v/s George & Another reported
in AIR 1973 Ker 94.
07. Vide order dated 06.07.2023, the learned District Judge
dismissed the application on the ground that by co-joint reading of
provisions of Section 69 of the Indian Partnership Act, 1932 and Order
XXX Rule 1 of the CPC the registered Firm can file a suit through one
partner. Since plaintiff No.1 is a registered Firm, therefore, plaintiff
No.2 is having an authority to file the suit. Being aggrieved by the said
order, present civil revision is filed.
08. Shri A.K. Sethi, learned Senior Counsel for the petitioners /
defendants submits that there cannot be two interpretation of Order
XXX Rule 1 of the CPC which mandates that suit can be filed in the
name of Firm by two or more partners and Section 69 of the Indian
Partnership Act does not apply which has unnecessarily been referred by
the learned Court.
09. Shri Athawale, learned counsel for respondents No.5 & 6
submits that Order XXX Rule 1 of the CPC is only enabling provision
but not a prohibitory in nature, therefore, there is no prohibition of filing
the suit by one partner in the name of Firm against other partners. In this
case the plaintiffs are challenging the sale deed executed by remaining
two partners, therefore, the suit is maintainable at the instance of one
partner. In support of his contention, he is placing reliance upon a
several judgments delivered in the cases of Bhadreswar Coal Supply
Co. v/s Satis Chandra Nandi & Co. & Others reported in AIR 1936
Cal 353, Purushottam Umedbhai & Co. v/s Manilal & Sons reported
in AIR 1961 SC 325, Ramlal Kanhaiyalal Somani v/s Ajit Kumar
Chatterjee & Others reported in AIR 1973 Cal 372, Shanti Devi
Sharma & Others v/s Radheshyam Palod & Others reported in 2000
(2) M.P.L.J. 331 and Dinesh Narayan Jha & Others v/s The State of
Bihar & Others (MANU/BH/793/2010).
10. I have heard Shri A.K. Sethi, learned Senior Counsel for the
petitioners and Shri Sameer Athawale & Shri Aditya Goya, learned
counsel for respondents No.5 & 6 who are the contenting parties at
length and perused the record.
11. Order XXX Rule 1 of the CPC is reproduced below:-
"ORDER XXX
SUITS BY OR AGAINST FIRMS AND PERSONS
CARRYING ON BUSINESS IN THE NAMES OTHER
THAN THEIR OWN
1. Suing of partners in name of firm.--(1) Any two or more
persons claiming or being liable as partners and carrying on
business in, 1[India] may sue or be sued in the name of the firm
(if any) of which such persons were partners at the time of the
accruing of the cause of action, and any party to a suit may in
such case apply to the Court for a statement of the names and
addresses of the persons who were, at the time of the accruing of
the cause of action, partners in such firm, to be furnished and
verified in such manner as the Court may direct.
(2) Where persons sue or are sued partners in the name of their
firm under sub-rule (1), it shall, in the case of any pleading or
other document required by or under this Code to be signed,
verified or certified by the plaintiff or the defendant, suffice such
pleading or other document is signed, verified or certified by any
one of such persons."
[Emphasis Supplied]
12. In this case, the sale deed in dispute is in favour of the
defendants in which the Firm is vendor and the same being plaintiff
No.1 is Firm is seeking the declaration that the sale deed be declared as
void which is not permissible. It is clear from the plain language of Rule
1 of Order XXX of the CPC that any two or more persons claiming or
being liable as partners and carrying on business in India may sure or be
sued in the name of the firm of which such persons were partners at the
time of the accruing of the cause of action.
13. In view of the aforesaid provisions of law, if plaintiff No.2,
being a partner wants to sue the remaining two partners, i.e. defendants
No.1 & 2, he has to sue them in the name of Firm. The Firm cannot sue
or to be sued through one partner, meaning thereby, two or more
partners can represent the Firm, not one partner. In this case, when the
sale deed is being challenged by plaintiff No.2 in which the vendor is
the Firm through defendants No.1 & 2, therefore, defendants No.1 & 2
are liable to be sued in the name of Firm by plaintiff No.2 alone.
14. In view of the above discussion, the impugned order dated
06.07.2023 is hereby set aside. The name of plaintiff No.1 be deleted
and transposed as defendant No.7 and the Firm shall be represented by
defendants No.1 & 2.
15. With the aforesaid, Civil Revision stands allowed.
(VIVEK RUSIA)
JUDGE
Ravi
