SARDAR HAWELA SINGH Vs. HARBANS LAL SURENDRA PAL

JUDGEMENT

(1.) In a suit for recovery of money from a firm, the applicants appeared and denied that they were the partners in the firm and hence they were not liable to the plaintiff. On this issue No. 4 was framed. The applicants then made an application that the aforesaid issue No. 4 be decided as a preliminary issue. This application was rejected. Hence the present revision. Learned counsel for the petitioners submits that Order XXX, Rule 8 as engrafted by the Code of Civil Procedure (Amendment) Act, 1976 makes it incumbent upon the Court to decide the question whether a person arrayed as a defenant to the suit is or is not a partner, as a preliminary issue. Order XXX, Rule 8 provides;- "8. Appearance under protest.- (1) Any person served with summons as a partner under rule 3 may enter an appearance under protest, denying that he was a partner at any material time. (2) On such appearance being made, either the plaintiff or the person entering the appearance may, at any time before the date fixed for hearing and final disposal of the suit, apply to the Court for determining whether that person was a partner of the firm and liable as such. (3) If, on such application, the Court holds that he was a partner at the material time, that shall not preclude the person from filing a defence denying the liability of the firm in respect of the claim against the defendant. (4) If the Court, however, holds that such person was not a partner of the firm and was not liable as such, that shall not preclude the plaintiff from otherwise serving a summons on the firm and proceeding with the suit; but in that event, the plaintiff shall be precluded from alleging the liability of that person as a partner of the firm in execution of any decree that may be passed against the firm. " A reading of this rule shows that the scheme is that the question whether a person arrayed as a party to a suit is a partner of a firm should be decided before the suit proceeds on merits. Under sub-rule (2) a person who denies that he is a partner has to apply to the Court for determining the question whether he is a partner. Sub-rules (3) and (4) show that such a person or the plaintiff has been given rights to protest or enforce their rights after the Court has decided the issue on the question whether the person is a partner of the firm. This clearly shows that it is incumbent upon the Court to decide the question whether the objector is a partner or not before entering into the merits of the suit. In other words, an issue on this point needs to be decided as a preliminary issue. Learned counsel for the plaintiff invited my attention to Order XIV, Rule 2 C. P. C. which provides for a decision of an issue as a preliminary issue. Order XIV, Rule 2 is an enabling provision. It enables the Court to dispose of the issue of the kind mentioned in it as a preliminary issue. It, however, is not exhaustive of the situations in which the Court can also proceed to decide the question or issue as a preliminary issue. Order XXX, Rules 8 C. P. C. is specifically an instance of a situation where the Code contemplates the decision on the point as preliminary one. In my opinion, the Court below committed procedural irregularity in refusing to decide issue No. 4 as a preliminary issue. In the result, the revision succeeds and is allowed. The impugned order is set aside. The Court below is directed to hear and expeditiously dispose of issue No. 3 as a preliminary issue. In the circumstances, the parties will bear their own costs. .