(1.) FEELING aggrieved by judgment and order dated 13.01.95 passed by Third Additional Judge to District Judge, Vidisha, in Civil Suit No. 18/94, the Plaintiffs/Appellants have come up in appeal to this Court and prayed for hearing of the suit on merits. Appellants / Plaintiffs had filed a suit before District Judge, Vidisha for declaration and mandatory injunction in respect of a partnership firm styled as "M/s Vidisha Auto Service" to declare that it is an exclusive dealership of the Plaintiffs. According to the Plaintiffs, Defendant No. 2 Indian Oil Corporation granted agency of kerosene oil in Vidisha District to the Plaintiffs in the name of Vidisha Auto Service for petrol, diesel and mobioil. Subsequently another retail outlet was opened in Dholkhedi which business was done in the sub -partnership with the name of Vidisha Auto Sales and Service. Initially, the partnership was constituted of two partners, namely; Ramswaroop Sharma, predecessor in title of the present Plaintiffs, and Defendant No. 1 i. e. Defendant / Respondent No. 1.
(2.) AFTER about 14/15 years, there was some dispute Limited. Ramswaroop Sharma died on 6.12.1989 and this thing was utilised by Defendant No. 1 for raising objection and claiming the share in the business of kerosene. The Defendant No. 2 in collusion with Defendant No. 1 also raised objection on the ground that Defendant No. 1 alone remains the sole surviving partner of Vidisha Auto Service after the death of Ramswaroop Sharma. On 27.6.1989, Respondent/Defendant No. 1 voluntarily agreed to keep himself away from the partnership firm Vidisha Auto Service and consented Ramswaroop Sharma to carry on the business of this firm in his exclusive rights. Rasmwaroop Sharma thereafter reconstructed the said firm Vidisha Auto Service by naming his son Plaintiff Ramsahay Sharma in place of Respondent -Defendant No. 1. Before Ramswaroop Sharma could have completed the formalities to get normal kerosene supply from Indian Oil Corporation, he expired on 6.12.1989 and thereafter Ram Sahay Sharma inducted his mother Shanti Devi as a partner in the said firm, however, no formal recognition could be obtained because of the objections raised on behalf of Respondent/ Defendants which necessiated the filing of the suit as referred hereinabove. Respondent / Defendant No. 1. Radhey Shyam Palod in his written statement before the trial court contended that his partnership with Ram Swaroop Sharma was not dissolved and, therefore, either Ramswaroop Sharma or his successor in interest, had no right to create any between the partners and they mutually agreed to distribute assets of partnership and the deceased Ramswaroop Sharma was given the right of running the business in Vidisha and Defendant No. 1. agreed to look after the business in Dholkhedi. This agreement did not subsist for long and again on 12.10.94, another arrangement was made and Defendant No. 1. started business at Vidisha in the name of "Palod Auto Service". The deceased Ram Swaroop started business in the name name "Dholkhedi Auto Service" and the business at Basoda was done in the name of 'Basoda Auto Service'. So far as the dealership of petrol, diesel and mobi oil is concerned, the matter was settled mutually as above. However, in relation to business of Kerosene Oil, Defendant No. 1 renounced his rights in the kerosene business after taking consideration as agreed and the kerosene business was entrusted solely to deceased Ramswaroop Sharma. The agreement in relation to kerosene business was adopted in 1980 and the same continued upto November, 1983. As per the arrangement entered in the year 1980, the kerosene was received from Defendant No. 2 on the basis of an indent signed by the deceased Ramswaroop Sharma and Defendant No. 1. However, Defendant No. 1 did not abide by this arrangement and he started raising objection. Ultimately, the Collector suspended the kerosene licence and as from 27.9.87, late Ramswaroop Sharma was accepted sole owner of the business run in the name of Vidisha Auto Service and it was also agreed that Ramswaroop Sharma will be fully entitled for doing the business of kerosene. This arrangement was also agreed by the Defendant No. 2 Indian Oil Corporation other firm in the same name and style. By way of preliminary objection, it was further pleaded that the suit is not tenable without the firm being made a party in the case. A legal plea was further raised under order 2 Rule 2 Code of Civil Procedure to the effect that Ramswaroop Sharma had filed Civil Suits Nos. 10 -B/90 and 152A/87 wherein the same relief was claimed and the decision of the Civil Suit No. 152 -A/87 on 30.3.90 operates as res judicata in the present suit. Payment of deficient court -fee as well as point of jurisdiction of the Court were also raised on behalf of Respondent No. 1.
(3.) IN another M. A. No. 126/91 vide order dated 5.8.91 of this Court, it has been made clear that the licence of kerosene dealership issued by Collector, Vidisha in exercise of his powers under the M. P. Kerosene Dealers Licensing Order, 1979 made under the provisions of the Essential Commodities Act, 1955 is in the name of Vidisha Auto Service and additionally the names appear along with the firm's name are Ram Sahai and Shanti Devi, the Plaintiffs. It was conceded on behalf of the Plaintiffs and also on behalf of Indian Oil Corporation that they are bound by that licence. It was further pointed out by the learned Single Judge of this Court that dealership right is a statutory right and is not a private property of any individual firm or company. Even by act of parties, that right cannot be conferred, transferred or abandoned if any sanction in that regard existed in law for such an action. The Court, therefore, directed that it shall be open to the Plaintiffs to amend their plaint and if that is done within two weeks, the Defendants shall also amend their written statements. The Plaintiffs thereafter may file a fresh application for injunction. On the basis of fresh pleadings, a fresh decision shall be rendered. The Plaintiffs moved an amendment in the plaint as directed in M. A. No. 126/91 by the order dated 5.8.91 of this Court and also moved another application under Order 39 rules 1 and 2 read with Section 151 C. P. C. The Defendants also amended their written statements by giving suitable reply to the amendment made by the Plaintiffs. After rejection of the application under Order 39 rules 1 & 2 C. P. C. by the trial Court. Plaintiffs again came up in M. A. No. 251/91 to this Court, but at this time, the High Court in its order dated 18.11.91 did nothing except making a direction for early disposal of the matter. The learned trial Court thereafter framed following preliminary issues and dismissed the suit of the Plaintiffs by the impugned order, which is the subject matter of this appeal. <FRM>JUDGEMENT_532_TLMPH0_2000.htm</FRM>