PRABHAKAR TULSHIRAM SHEGAONKAR Vs. M.A. HAFFIS

JUDGEMENT

(1.) This appeal was listed for final hearing as early hearing was sought because the parties are senior citizens. The appellants/original plaintiffs made a grievance about the impugned order dt. 6.7.2004 passed below Exh. 26 by the learned Civil Judge (Sr. Dn.), Wardha in Special Civil Suit No. 71 of 2002. The learned Counsel for the appellants submitted that, the trial Court, though it is a suit for specific performance of contract between the appellants and defendant No. 1 against whom specific performance of contract is sought, proceeded to reject the claim under O. VII, R. 11 of the Code of Civil Procedure on the ground that the plaint is barred by Section 69(2) of the Indian Partnership Act, 1932. The learned Counsel for the appellants submitted that Section 69(2) of the Indian Partnership Act was not attracted as the suit was between the private parties and not on the basis that the plaintiff is a partnership firm. Section 69(2) of the Indian Partnership Act, 1932 bars the suit to enforce the right arising from a contract entered into by or on behalf of a partnership firm against any third party. My attention is invited to copy of the plaint annexed at Exh. 1-B in Special Civil Suit No. 71 of 2002. The plaintiffs did not claim that it was a suit by or on behalf of a partnership firm. The plaintiffs had, in their plaint, alleged that defendant No. 1 is a retired Revenue Inspector holding agricultural lands with some of his relatives. The plaintiffs had alleged compromise in the earlier suit being Regular Civil Suit No. 367 of 1977 in the Lok Adalat and claimed that there was an agreement of sale dt. 14.10.1998 under which the plaintiffs had paid a sum of Rs. 1,25,000/- etc. to defendant No. 1 amongst other payments averred in the plaint claiming that the plaintiffs were ready and willing to pay the consideration to get the sale deed executed, pursuant to the agreement entered into by the plaintiffs with defendant No. 1. Thus, although nowhere in the plaint there was any claim that it was a suit by or on behalf of the partnership firm, but despite it:

(2.) O. VII, Rule 11 of the Code of Civil Procedure reads thus:

(3.) The Court may be justified in rejecting the plaint under the aforesaid provision when, prima facie, on reading the plaint as a whole, it does not disclose any cause of action or if it is barred, prima facie, upon reading the averments in the plaint. It is true that the Court may reject the plaint under O. VII, Rule 11 of the Code of Civil Procedure if it is barred by any law, but even in that case, the Court has to convince itself by reading the averments in the plaint that the plaint is liable to be rejected as barred by law.