Rajasthan High Court - Jodhpur
Sandhya Choudhary vs Neelam Sharma (2024:Rj-Jd:8703) on 20 February, 2024
Author: Birendra Kumar
Bench: Birendra Kumar
[2024:RJ-JD:8703]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision Petition No. 39/2023
1. Sandhya Choudhary W/o Shri Sukhram Choudhary, Aged
About 62 Years, By Caste Jat, Resident Of Choudhary
House, Near Military Haththa, Village Digari, Tehsil And
District Jodhpur.
2. Dilip Singh Choudhary S/o Shri Sukhram Choudhary,
Aged About 34 Years, By Caste Jat, Resident Of
Choudhary House, Near Military Haththa, Village Digari,
Tehsil And District Jodhpur.
----Petitioners
Versus
1.
Neelam Sharma W/o Shri Madan Gopal Sharma, Aged
About 55 Years, B/c Suthar, Resident Of Plot No. 570,
Tulsi Sadan, Shubhash Chandra Boss Colony, Near Karni
Hotel, Ratanada, Jodhpur.
2. Madan Gopal Sharma S/o Shri Khetaram Sharma, Aged
About 59 Years, By Caste Suthar, Resident Of 570, Tulsi
Sadan, Shubhash Chandra Boss Colony, Near Karni Hotel,
Ratanada, Jodhpur.
3. Sonika D/o Shri Madan Gopal Sharma, Aged About 28
Years, By Caste Suthar, Resident Of Plot No. 570, Tulsi
Sadan, Shubhash Chandra Boss Colony, Near Karni Hotel,
Ratanada, Jodhpur.
----Respondents
For Petitioner(s) : Mr. Rajat Arora
Mr. Lucky Rajpurohit
For Respondent(s) : ---
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
20/02/2024
The background leading to this civil revision petition under
Section 115 of the CPC against the order dated 17.11.2022
[2024:RJ-JD:8703] (2 of 4) [CR-39/2023]
passed by the learned Additional District & Sessions Judge No.03,
Jodhpur, is that the respondents filed a suit for rendition of
account of the partnership firm against the petitioner. Further
prayer was for issuance of permanent injunction restraining the
defendant from alienating the partnership property.
The defendants appeared in the suit and filed an application
under Order VII Rule 11 CPC for rejection of plaint. The main
ground of the defendants before the learned trial judge as well as
before this Court, challenging the dismissal of the prayer under
Order VII Rule 11 CPC is that unless there is prayer for dissolution
of partnership firm, the suit based on consequential prayer should
not be entertained.
Contention is that out of three plaintiffs, Neelam Sharma was
not a partner in the firm. Hence, for rendition of account, suit at
the hands of Neelam Sharma is not maintainable, whereas other
plaintiffs Madan Gopal Sharma, who is husband of Neelam Sharma
and Sonika, who is daughter of Neelam Sharma are partners,
therefore, suit might be maintainable at their hands.
Learned counsel for the petitioners has relied on the
judgment of this Court in "Motiram Vs. Bhugromal" reported in
1967 RLW 324.
Heard learned counsel for the petitioners.
The law is clear that dismissal of the suit on merit and
rejection of the plaint at the threshold stands on different
pedestal. Rejection of the plaint can be done only when a case
under Rule 11 of Order VII CPC is made out. For other grounds
the suit would require to be decided on merit which may or may
[2024:RJ-JD:8703] (3 of 4) [CR-39/2023]
not result in dismissal of the suit. Moreover, the plaintiff would
have right to amend the plaint including prayer in the plaint at any
stage of the suit. Likewise misjoinder and non-joinder of the
parties would be considered at the time of framing of the issues.
Rule 11 of Order VII reads as follows:-
"11. Rejection of plaint.
The plaint shall be rejected in the following cases-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the
plaintiff, on being required by the Court to correct the
valuation within a time to be fixed by the Court, fails to
do so;
(c) where the relief claimed is properly valued, but the
plaint is returned upon paper insufficiently stamped,
and the plaintiff, on being required by the Court to
supply the requisite stamp-paper within a time to be
fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the
plaint to be barred by any law:
Provided that the time fixed by the Court for the
correction of the valuation or supplying of the requisite
stamp-paper shall not be extended unless the Court,
for reasons to be recorded, is satisfied that the plaintiff
was prevented by any cause of an exceptional nature
form correcting the valuation or supplying the requisite
stamp-paper, as the case may be, within the time fixed
by the Court and that refusal to extend such time
would cause grave injustice to the plaintiff."
Evidently, none of the grounds mentioned in Rule 11 of Order
VII is made out in the facts and circumstances of this case.
Moti Ram (supra) was a second appeal, wherein a Bench of
this Court held that unless there is prayer for dissolution of
partnership, a suit for rendition of account would not be
maintainable. Apparently, the second appeal was against the
decision on merit by the trial judge as well as first appellate court,
[2024:RJ-JD:8703] (4 of 4) [CR-39/2023]
therefore that case is not helping in the facts and circumstances of
this case.
In the result, this Civil Revision Petition stands dismissed.
(BIRENDRA KUMAR),J
11-nitin/-
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