MANGILAL JAGRUPJI JAIN Vs. SHRI BHARAT SHANKARLAL DHAKAD

JUDGEMENT

(1.) The Petitioner (Defendant No.3) is one of the purchaser, along with the Plaintiffs (Respondents 1 to 4) of a property described in the Agreement dated 29 December 2007 (the Agreement), executed with Respondents 5 and 6 (Defendants 1 and 2). The Agreement reflects that the Plaintiffs along with the Petitioner, as partners of M/s. Mahavir Developers (the firm), entered into the agreement for purchase of the property. As the Defendants failed to perform their part, the present Suit is filed, in their individual capacity, for a specific performance based upon the agreement.

(2.) The Petitioner filed an application under Order VII, Rule 11 (d) of the Code of Civil Procedure (CPC) for rejection of the plaint basically on the ground that the Defendants executed the agreement with the partnership firm namely, M/s.Mahavir Developers (the firm), of which the Plaintiffs 1 to 4 are the partners. The firm is not registered. Therefore considering Section 69(2) of the Indian Partnership Act (Mah. Amendment), the suit as filed in the individual capacity is not maintainable. The defence was that the Plaintiffs and the Petitioner individually invested the amount and therefore in their individual capacity entered into the transaction, though the document reflects the name of the intended firm. It could not finalised and registered till this date The learned Judge after hearing both the parties, considering the averments made in the plaint and referring to the provisions of law read with the judgments of the Supreme Court rejected the said application. Therefore, the present Civil Revision Application.

(3.) In view of this provision other party may apply for rejection of the plaint if suit is barred by law based upon the basic averments in the plaint itself. The averments in the plaint also includes, as rightly contended by the learned counsel appearing for the Petitioner, the supporting and relevant documents filed with the same, at the relevant time. There is no question of going to the defence/written statement, filed or not. Even the reply stating the merits of the matter filed to such application for rejection of the plaint may not be necessary to consider merits of the matter in view of the object, nature and scope and purpose of Order VII, Rule 11(d) of CPC.