P VENU ALIAS VENUGOPAL Vs. JEYA

JUDGEMENT

(1.) THESE revision petitions are directed against the orders in C. M. A. Nos. 20 and 21 of 1992 on the file of Principal Subordinate Judge, tirunelveli, in which the learned Subordinate Judge has allowed the appeals and thereby set aside the orders passed by him in I. A. Nos. 652 and 653 of 1992 in o. S. No. 154 of 1992 on the file of District Munsif, Valliyur.

(2.) SHORT facts are: The revision petitioner has filed o. S. No. 1 of 1992 on the file of District Munsif, Tirunelveli which was later transferred to the Court of District Munsif, Valliyur and re-numbered as o. S. No. 154 of 1992, for dissolution of partnership firm, carried on at Door no. 1, Periyar Bus Stand Buildings, Madurai Road, Tirunelveli Junction and at stall at 2, platform in the Periyar Bus Stand buildings, Tirunelveli junction, for rendering real accounts of the partnership firm, for appointment of receiver and for interest on the misappropriated funds and for costs, against the respondents herein. He had also filed two petitions in I. A. Nos. 652 and 653 of 1992 praying for temporary injunction, restraining the respondents from disposing of the leasehold rights and the goods of the firm till the disposal of the suit and for temporary injunction restraining the respondents from preventing the petitioner from conducting and participating in the administration and management of the said ' 'business respectively. Those petitions were opposed by the respondents. After hearing the parties, the learned District Munsif had passed a common order in which he had allowed both the petitions. Aggrieved by the same, these respondents had filed C. M. A. Nos. 20 and 21 of 1992 before the Principal Subordinate Judge, tirunelveli. After hearing the parties, the learned Subordinate Judge allowed c. M. A. No. 20 of 1992 in part and thereby had given the modified injunction. The learned Judge allowed C. M. A. No. 21 of 1992 and thereby vacated the interim injunction granted in I. A. No. 653 of 1992 and had dismissed the said I. A. No. 653 of 1992. Aggrieved by the same, the petitioner in the trial court has come forward with these two civil revision petitions.

(3.) WHEN the date of service of summons with the copy of the plaint on the respondents, is not taken as the date of dissolution of the firm, the resultant position is that the petitioner continues to be the partner of the firm. However, in view of the copy of the Form 11 filed by the petitioner and the respondents to the Income Tax Authority, wherein a written agreement had been referred to and in view of the copy of the agreement of partnership signed by the parties, the copy of which is filed in typed set, prima facie it appears that there is a written agreement of partnership as per which the petitioner is only a working partner, and Clause 14 of the partnership deed provides for payment to the petitioner the amount due to him in the accounts. But, yet the material date would be the date of dissolution of partnership. As such, till the date, he cannot be precluded from his acting as a partner. Even as per the terms of the partnership deed relied upon by the respondents, the petitioner is entitled to 30% of the net profits, and he is a working partner. In the circumstances, if he is precluded from the partnership at this stage, definitely he will be prejudiced. Even according to the written statement, the petitioner is participating in the affairs of the partnership firm. The petitioner has got the benefit of interim injunction all through. As i have indicate, the lower appellate court has misconstrued the ruling of the apex ruling referred to supra and thus led itself to come to an erroneous conclusion and it has to be set aside.