Pradeep Gaurishankar vs Santosh Jain
2023 Latest Caselaw 785 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 13/2023

1. M/s Sai Polyplast, Road No. 10, M.G. Road, Khata No. 21/14, First And Second Floor, Fozi Udhyog, Udhyog Nagar, Udhna Surat (Gujrat)

2. Pradeep Gaurishankar S/o Shri Gaurishankar, Aged About 52 Years, By Caste Brahman Trivedi, Resident of A-302, Silver Avenue Mapple County-1, Near Shalaj Railway Crossing, Thaltej, Ahmedabad (Gujrat)

3. Manoj Pandya S/o Shri Navneet Pandya, Aged About 43 Years, By Caste Brahman Pandya, Resident of 109-B, Vrandavan Park Second, Chala, Vapi.

----Petitioners Versus

1. Smt. Santosh Jain W/o Shri Mooolchand Jain, By Caste Oswal Jain, Through Her Power of Attorney Holder Moolchand Jain S/o Shri Bahadurmalji, Resident of 460, Subhash Nagar, Jodhpur.

----Respondents Connected With S.B. Civil Revision Petition No. 15/2023 Pradeep Gaurishankar S/o Shri Gaurishankar, Aged About 52 Years, By Caste Brahman Trivedi, Resident Of A-302, Silver Avenue Mapple County-1, Near Shalaj Railway Crossing, Thaltej, Ahmedabad (Gujrat)

----Petitioner Versus Santosh Jain W/o Shri Moolchand Jain, By Caste Oswal Jain, Through Her Power Of Attorney Holder Moolchand Jain S/o Shri Bahadurmalji, Resident Of 460, Subhash Nagar, Jodhpur.

                                                                ----Respondent


For Petitioner(s)         :    Mr. Kishan Lal Bansal
For Respondent(s)         :    Mr. C.P. Soni



            HON'BLE MS. JUSTICE REKHA BORANA

                                    Order


                                              (2 of 5)                [CR-13/2023]

20/01/2023

S.B. Civil Revision Petition No. 13/2023

The present revision petition has been filed against the order

dated 21.11.2022 passed by the Additional District Judge No.2,

Jodhpur Metropolitan, Jodhpur whereby an application under

Order VII Rule 11 of the Code of Civil Procedure as preferred by

the defendants has been rejected.

The case of the petitioners/defendants is that the

respondent/plaintiff has not annexed the partnership deed along

with the plaint and further did not implead one of the partners

who was a necessary party to the suit, therefore, the suit, in

absence of the impleadment of a necessary party, was not

maintainable. He submitted that therefore, the suit was barred in

terms of the provisions of Partnership Act. In support of his

submission, learned counsel relied upon the Hon'ble Apex Court

judgment in the case of Seth Loonkaran Sethiya and Ors. vs.

Mr. Ivan E. John and Ors.; [1997 (1) SCC 379]. Counsel

further submitted that the plaint did not disclose any cause of

action and therefore also, the suit was liable to be dismissed.

Heard learned counsel for the parties and perused the order

dated 21.11.2022.

The order specifically takes note of the pleadings as made by

the plaintiff in her plaint. The suit is for recovery of certain

amounts and it has been specifically pleaded in the plaint that the

amount which was given as a loan to the defendants was not

repaid to her and therefore, she was entitled for recovery of the

said amount from the defendants. A specific pleading has been

made that the defendants have closed down their business

(3 of 5) [CR-13/2023]

premise and have left from the said premise 18 months ago.

Therefore, the cause of action arose to the plaintiff from that date.

A bare perusal of the plaint makes it clear that the specific

pleadings regarding the loan amount being given and the same

having not been repaid have been made in the plaint. Further, the

closure of the factory premises has been pleaded to be a cause of

action for filing of the present suit. In the opinion of this Court,

the findings as arrived by the court below cannot be faulted with

as the same are totally reasoned and in terms of the provisions of

Order VII Rule 11, CPC.

So far as the ground of non-impleadment/non-joinder of a

necessary party is concerned, the same cannot be a ground for

dismissal of a suit in terms of Order VII Rule 11, CPC. So far as

the judgment relied upon by learned counsel for the petitioners is

concerned, the same reiterates the proposition of law of a suit

being barred against an unregistered firm in terms of Section 69

of the Partnership Act, 1932. There can at all be no dispute about

the said legal proposition but evidently, the said proposition would

not apply to the present matter as it is not the case of the

defendants that the suit was filed against an unregistered firm.

In view of the above observations, the present revision

petition being devoid of merits is dismissed.

The stay petition also stands dismissed accordingly.

S.B. Civil Revision Petition No. 15/2023

The present revision petition has been filed against the order

dated 21.11.2022 passed by the Additional District Judge No.2,

Jodhpur Metropolitan, Jodhpur whereby an application under

(4 of 5) [CR-13/2023]

Order VII Rule 11 of the Code of Civil Procedure as preferred by

the defendant has been rejected.

In the present revision petition besides the grounds as raised

in the revision petition No.13/2023, the ground of limitation has

also been raised.

It has been argued that even if the version of the plaintiff is

accepted as it is, the last repayment qua interest amount made by

the defendants was on 31.03.2018 and the suit has been

preferred on 26.05.2022 in which the Court fees has been

deposited on 22.08.2022. Therefore, the suit was clearly barred

by the law of limitation as the same had been filed after a period

of three years from 31.03.2018.

A perusal of the order dated 21.11.2022 shows that the

learned Court below has given a specific finding that the Hon'ble

Apex Court had extended/excluded the limitation period because

of the COVID-19 pandemic and therefore, the suit is not time

barred. In the opinion of this Court, the said finding of the learned

Court below cannot be disputed or faulted with as the period from

15.03.2020 to 28.02.2022 had been directed to be excluded from

the period of limitation by the Hon'ble Apex Court and therefore,

keeping into consideration the said period, the suit does not seem

to be time barred. However, in the interest of justice, it would be

equitable if a preliminary issue regarding the limitation be framed

by the learned Court and the same be decided after affording

opportunity of evidence on the said issue to both the parties.

At this stage, learned counsel for the respondent plaintiff

submitted that the petitioner defendant has not even filed the

written statement till date and therefore, it would not be possible

for the learned Court below to frame any preliminary issue.

(5 of 5) [CR-13/2023]

Learned counsel for the petitioner undertakes to file the

written statement on the next date itself.

If the written statement is filed by the petitioner defendant

on the next date and the ground of limitation is pleaded in the

same, let a preliminary issue regarding the limitation be framed

and be decided in terms of the aforesaid directions.

Regarding the other grounds, the order dated 21.11.2022 is

upheld in terms of the order passed in Revision Petition

No.13/2023.

With the above directions, the present revision petition is

disposed of.

The stay petition also stands disposed of accordingly.

(REKHA BORANA),J 4 & 5-Sachin/-

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