KANTILAL JETHALAL GANDHI Vs. GHANSHYAM RATILAL VYAS

JUDGEMENT

(1.) The order passed by the learned Civil Judge (S. D.), at Narol on 30/06/1986 below the application at Exh. 5 in

(2.) The facts giving rise to this Appeal from Order move in a narrow compass. The present appellant claims to be a partner in a partnership firm in the name and style of Shri Nilkanth Builders (the 'firm' for convenience). It was started from 1/01/1978 and it was dissolved on 1/01/1986. Under the deed of dissolution, the present appellant claims to have acquired the right to recover the debt recoverable by the firm, It took contract to construct 12 houses on sub-plots Nos. 8 to 11 of one Sardar Smruti Co-operative Housing Society Ltd. (the 'Society' for convenience). The present respondent had acquired the tenament on plot No. 5. Its price was fixed at Rs. 59,000.00. The respondent herein had paid Rs. 20,000.00 on 4/12/1981 and Rs. 24.000.00on llth December, 1981. The outstanding amount due from the respondent herein was to the tune of Rs. 15,000.00. He had to pay it with interest at the rate of 18 per cent per annum. He paid around Rs. 1,750.00 from llth December, 1981 to 15/03/1983. The amount due and payable by him to the present appellant would be in the sum of Rs. 24,500.00. On these facts the appellant filed one suit against the present respondent in the Court of the Civil Judge (S. D.) of Ahmedabad (Rural) at Narol for a decree in the sum of Rs. 24.500.00 together with interest payable thereon. It came to be registered as Special Civil Suit No. 43 of 1986. The appellant herein made one application in the suit for interim injunction restraining the present respondent from transferring the tenament in question in favour of anyone during the pendency of the suit. That application appears to have been taken on the record of the suit as Exh. 5. An ex parte ad interim injunction as prayed for came to be granted on 28/02/1986. The present respondent filed his reply-cum-written statement and resisted the suit as well as the application at Exh. 5 on various grounds. His reply appears to have been taken on the record of the suit as Exh. 10. After hearing the parties, by his order passed on 30th June, 1986 below the application at Exh. 5 in Special Civil Suit No. 43 of 1986, the learned Civil Judge (S. D.) of Ahmedabad (Rural) at Narol was pleased to reject the application for interim injunction and to vacate the ad interim injunction granted earlier. The aggrieved appellant has thereupon preferred this Appeal from Order before this Court questioning the correctness of the aforesaid order passed by the learned trial Judge below the application at Exh. 5 in Special Civil Suit No. 43 of 1986.

(3.) The learned trial Judge did not find the prima facie case in favour of the present appellant solely on the ground that the firm in which he claimed to be a partner was not registered, and as such his suit for recovery of a due payable to a unregistered firm, though dissolved, would be hit by the relevant provisions contained in Sec. 69 of the Indian Partnership Act, 1932 ('the Act' for brief).