INDERJIT SOHAHLAL GULATI Vs. MANOHARLAL PALARAM GULATI

JUDGEMENT

(1.) This notice of motion for receiver and injunction is in a partnership action. However, in view of the fact that defendant No. 2, who is not a partner, has been a added as party-defendant, a question arises as to whether this Court has jurisdiction to entertain and try this suit. Defendant No. 2 happens to be the owner of the land which according to the plaintiffs, had been let out to the firm for the purpose of doing their quarry business. In the plaint there is a prayer for a declaration that this quarry is an asset of the firm and that the defendants should not interfere with plaintiffs right to carry on quarry operations from the said land. Mr. Mody appearing for defendant No. 2 contends that if one has regard for the plaint, this is a suit between the tenants and the landlord relating to recovery of possession of land and that, therefore, the suit falls within the scope of section 28 of the Bombay Rent Act, 1947. Mr. Mody submits that this plaint has to be rejected on that this question be tried as a preliminary issue as provided under section 9-A of the Code of Civil Procedure

(2.) I have accordingly framed a preliminary issue under section 9-A of the Code of Civil Procedure as follows :

(3.) It is well settled that the question of jurisdiction will have to be decided on the basis of the averments made in the plaint. Mr. Mody submitted that the Court should look at the substance of the plaint and not attach any importance to ingenius drafting of the pleadings. There is no dispute about this proposition. In my view if one has regard for the plaint, it is essentially a suit for dissolution and for accounts and incidentally, since a part of the assets, has been sought to be diverted by collussion and connivance between defendant Nos. 1 & 2, the plaintiff had no choice but to add defendant No. 2 as a party to this suit. But before I observe anything further, I will deal with averments made in the plaint.