Jagmal Singh S/O Shri Mukharam vs Karnel Singh S/Oshri Chaju Singh
2022 Latest Caselaw 225 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

          S.B. Civil Miscellaneous Appeal No. 1245/2019

Jagmal Singh S/o Shri Mukharam, Aged About 60 Years,
Occupation      Thekedari,     R/o     Kharkra,        Tehsil    Khetri,   District
Jhunjhunu (Raj)
                                                      ----Appellant/Defendant
                                     Versus
1.      Karnel Singh S/o shri Chaju Singh, Aged About 68 Years,
        Occupation, Thekedari, R/o D-56, Second-B, Khetri Nagar,
        District Jhunjhunu (Raj)
                                                      ----Plaintiff/Respondent

2. Hindustan Copper Limited Through Chairman, Kolkatta.

3. Executive Director, Khetri Copper Complex, Khetri Nagar, District Jhunjhunu (Raj)

4. Senior Manager (Finance), Hindustan Copper Limited, Khetri Copper Complex, Khetri Nagar District Jhunjhunu (Raj)

----Defendants/Respondents

For Appellant(s) : Mr. Mahendra Singh Gurjar through VC For Respondent(s) : Mr. Sandeep Nirwan through VC on behalf of Mr. Satish Kumar Khandal

HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Judgment

11/01/2022

By filing this appeal a challenge has been made to the

judgment dated 10.01.2019 passed by the Court of learned

Additional District Judge, Khetri, District Jhunjhunu [for short 'the

First Appellate Court'] in Civil Misc. Appeal No.01/2013 by which

the judgment and decree dated 23.11.2012 passed by the Court

of Civil Judge (Senior Division), Khetri [for short 'the learned trial

Court'] in suit No.26/2012, has been quashed and set aside and

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the matter was remanded to the learned court below to decide the

suit in accordance with law.

Skeleton facts of the case are that the plaintiff-respondent

Karnel Singh filed a civil suit for permanent injunction against the

defendant-appellant and other defendants-respondents before the

learned trial Court with the averments that a partnership deed

was executed on 27.05.2005 between the plaintiff and the

defendant for getting works from defendant-Hindustan Copper

Limited in the name and style of M/s Jagmal Singh, on certain

terms and conditions. It was also stated in the plaint that some

dispute occurred between the parties, hence, the plaintiff filed a

civil suit against the defendants for permanent injunction for

restraining them not to operate the bank accounts of the firm for

personal use. The other reliefs were also sought.

The plaintiff-appellant submitted an application under Order

7 Rule 11 CPC before the learned trial Court and took an objection

about the maintainability of the suit in terms of Section 69(2) of

the Indian Partnership Act, 1932 (for short "the Act of 1932) by

saying that the partnership deed executed between the parties,

but the same was not registered. Hence, in terms of Section 69(2)

of the Act of 1932, the suit is not maintainable.

The defendants-respondents submitted reply to the said

application and denied the averments made in the application and

stated that registration of the partnership was not required and

the suit is quite competent and the same is maintainable before

the learned trial Court as per the terms and conditions of the

partnership deed executed between the parties.

After hearing the arguments raised by both the sides, the

learned trial Court allowed the application filed by the plaintiff-

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appellant under Order 7 Rule 11 CPC and rejected the plaint in

view of Section 69(2) of the Act of 1932 by saying that the

partnership deed was unregistered, hence, the suit was not

maintainable.

Feeling aggrieved by the said judgment dated 23.11.2012

passed by the learned trial Court below, the plaintiff-respondent

preferred an appeal before the First Appellate Court whereby the

appeal was allowed on the basis of judgment delivered by the

Hon'ble Supreme Court in Haldiram Bhujiawala Vs. Anand K.

Deepak reported in 2000(3) SCC 250, wherein the Hon'ble Apex

Court has held that "when the suit is fuled for the enforcement of

certain rights arising out of a contract entered into by the

unregistered firm with the third parties in the course of business

transaction, the same is not barred under Section 69(2) of the Act

of 1932". On the basis of the aforesaid judgment delivered by

Hon'ble the Apex Court, the judgment dated 23.11.2012 passed

by the learned trial Court was quashed and set aside and the

matter was remanded to the learned court below to decide the

suit in accordance with law.

Feeling aggrieved by the impugned judgment dated

10.01.2019 passed by the First Appellate Court, the appellant-

defendant has preferred the instant appeal.

Learned counsel appearing for the appellant-defendant

submits that the judgment passed by the First Appellate Court is

not a reasoned judgment and without considering the judgments

cited by appellant-defendant, the judgment passed by the learned

trial Court has been quashed and set aside and the matter was

remanded to the learned court below for deciding the suit on its

merits. Counsel further submits that the principles laid down by

(4 of 6) [CMA-1245/2019]

Hon'ble the Apex Court in the case of Haldiram Bhujiawala

(supra) are not applicable in the instant case because the issue

involved in the said matter was confined to the relief of permanent

injunction and damages being claimed on the basis of a registered

trademark and its infringement and the suit was treated as one

based on a statutory right under the Trade Mark Act. So on the

basis of that analogy, the Hon'ble Supreme Court has held that the

suit is not barred under Section 69 (2) of the Act of 1932. Counsel

further submits that the First Appellate Court has not taken into

consideration the landmark decision of Hon'ble the Apex Court

delivered in the case of Loon Karan Sethia Etc Vs. Ivan E. John &

Ors. reported in AIR 1977 (1) SC 379, wherein Hon'ble the Apex

Court has held that the suit is not maintainable if filed by an

unregistered firm.

Per contra, the counsel appearing for the respondents

opposed the arguments raised by the counsel for the appellant-

defendant and submitted that the judgment passed by the First

Appellate Court is just and proper and the same requires no

interference of this Court.

Heard learned counsel appearing for the respective parties

and perused the documents and material available on the record.

Bare perusal of the judgment dated 23.11.2012 passed by

the learned trial Court indicates that the case of the appellant-

defendant was that the dispute arose between the partners, but

their partnership deed was not registered. Hence, in any case

filing of civil suit before the learned trial Court was not the

appropriate remedy as the firm was unregistered and also in view

of Section 69(2) of the Act of 1932, the suit was not maintainable.

While deciding the application filed under Order 7 Rule 11 CPC,

(5 of 6) [CMA-1245/2019]

the learned trial Court has taken into consideration the following

judgments:

1. Loon Karan Sethia Etc Vs. Ivan E. John & Ors., reported in AIR 1977 (1) SC 379,

2. Shreeram Finance Corporation Vs. Yasin Khan And Others, reported in AIR 1989 SC 1769,

3. Kavita Trehan And Ors. Vs. M/s Balsara Hygiene Products Limited, reported in AIR 1992 Delhi 92,

4. Ashish Verma Vs. Neeraj Vyas and Ors., reported in AIR 2012 Madhya Pradesh Page 9 and

5. Kulwindersingh Ahluwaliya Vs. Sandeep Kaur, reported in AIR 2009 (NOC) 2660 Bombay

It appears that while deciding the appeal the First Appellate

Court has not taken into consideration the judgments relied upon

by the counsel appearing for the defendant-plaintiff and the

impugned judgment has been passed only on the basis of the ratio

decided by the Hon'ble Supreme Court in the case of Haldiram

Bhujiawala (supra).

Learned counsel appearing for both the parties are in

agreement that in the interest of justice, the matter may kindly be

remanded to the First Appellate Court for passing fresh order

after considering the judgments cited by both the parties at Bar.

Considering overall facts and circumstances of the case and

more particularly the arguments raised by both the parties in

agreement for remanding the matter to the First Appellate Court,

the instant appeal is allowed, the judgment dated 10.01.2019

passed by the First Appellate Court is quashed and set aside and

the matter is remanded to the First Appellate Court with a

direction to hear and decide the appeal afresh on merits after

considering the provisions of law and the judgments cited by both

the counsel appearing for the respective parties and also after

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considering their arguments and thereafter may pass a fresh order

in accordance with law.

With the above observations, this appeal as well as stay

application stand disposed of.

The parties are directed to appear before the First Appellate

Court on 01.02.2022.

All the pending applications, if any, stand disposed of.

(ANOOP KUMAR DHAND),J

Ritu/43

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