BALKRISHAN SOMANI Vs. RAM KRISHAN

JUDGEMENT

(1.) This judgment would dispose of two preliminary issues with regard to the territorial jurisdiction of this Court, and objection regarding to misjoinder of causes of action and parties, the objection of the defendant No. 7 as to the defendant's right to raise the objection with regard to misjoinder and 1.A 700/73 by the plaintiff under section 20 of the Code of Civil Procedure for leave too sue non-resident defendants.

(2.) It appears that by a deed of partnership made on October 31, 1955, the plaintiff, his deceased father and defendants 1 to 6, being the brothers and nephews of the plaintiff, entered into a partnership at Delhi to carry on, inter alia, business of running a factory in Kanpur which was hitherto being carried on by the plaintiff, his two brothers, defendants 1 and 2 and their late father. According to the plaintiff, the business was to be looked after by defendants No. 1, 2, 3 and 6, who were also to maintain accounts and defendant No. 6 was to give his whole time attention to the business that on account of mismanagement of the affairs of the partnership disputes arose between the parties as a result of which all the partners except the late father of the petitioner agreed to dissolve the firm in terms of a deed of dissolution made between them on May 20, 1964. The late father of the plaintiff, however, declined to sign the document and repudiated the same. However, on his death, his share in the partnership devolved on the other parties in accordance with their personal law. According to the plaintiff, the deed of dissolution was never given effect to and the factory of the partnership in Kanpur continued to vest in the partnership which remained subsisting. It, however, appears that defendants No. 1 to 6 treated the partnership as dissolved and purported to have sold the factory to a joint stock company, defendant No. 7, which was apparently constituted of defendants No. 1 to 6 and certain others and defendants 1 to 3, 5 and 6 its directors and defendant No. 4 its Secretary during the period when the sale was purported to have been made By this suit, which is described as one for dissolution of the firm and accounts, the plaintiff seeks a declaration that the deed of dissolution made on May, 20, 1964 was not binding on the plaintiff and that the sale of the factory in favour of defendant No. 7 was false, fictitious and fradulent and did not bind the plaintiff and prays for the partnership being dissolved and its accounts being taken, the amount due to the plaintiff being determined and made recoverable. The plaintiff also seeks a perpetual injunction against the defendants "directing them to remove themselves from the factory premises". Defendant' No. 1 admittedly ordinarily resides and carries on business in Delhi while defendants No. 2 to A and 6 reside and carry on business in Calcutta. Defendant No. 7 the joint stock company referred to above, was admittedly registered as a joint stock company in Calcutta where also it carries on its business and has no "branch in Delhi. In the written statements filed by the defendants, a plea was raised that this Court had no jurisdiction to try the suit "in view of the reliefs claimed." On the pleadings of the parties, issues were framed on October 14, 1970. Issue No. 6 related to jurisdiction and is : "Whether the Court has no jurisdiction to try this suit ? Subsequently by an application under Order 6 Rule 17 ot the Code of Civil Procedure, being I.A.I 182/71, defendant No. 7 sought, and was granted, leave of the Court to raise the objection with regard to the misjoinder of parties and causes of action. It, however, appears from the order made by this Court on August 30, 1971 that the leave was granted to raise the aforesaid objection subject, however, to the right of the plaintiff "to raise objections as to whether the defendant can take up the plea of misjoinder of parties and causes of action at this stage". On the basis of the aforesaid objection, additional issue was framed. "Whether the suit is bad for misjoinder of causes of action and parties ? O.P.D." On the motion of defendant No. 7 that the issue with regard to jurisdiction be treated as a preliminary it was directed on September 21, 1972 that the aforesaid issue as also the additional issue be treated as preliminary issues. While arguments were being heard on the aforesaid, an application being I.A. 700/73 was filed by the plaintiff under Section 20 of the Code of Civil Procedure praying that "in view of the averments made in the plaint and the nature of the disputes, it is expedient in the interest of the justice that permission be granted to the plaintiff to continue the above suit in Delhi", apparently implying that retrospective leave be granted to the plaintiff to sue the non-residents.

(3.) I have beared learned counsel for the parties at length on the two preliminary issues, the objection of the plaintiff with regard to the right of defendant No. 7 to raise the issue with regard to misjoinder of parties and causes of action and the plaintiff's application under Section 20. CPC.