KAMAL KISHOR JHAWAR Vs. SUNIL JHAWAR

JUDGEMENT

(1.) Being aggrieved and dissatisfied with the order no. 58 dtd. 9/8/2019 passed in Title suit No. 1189 of 2015 by the learned Judge 3rd Bench City Civil Court at Calcutta, present application under article 227 of the constitution of the India has been preferred. By the self-same impugned order learned court below rejected petitioner/defendant's applications under order VII rule 11 of the code of civil procedure (C.P.C) and allowed plaintiff/opposite parties application under order VI rule 17 C.P.C.

(2.) Petitioner contended that opposite party no 1 and 2 herein filed the aforesaid suit against the defendants including the present petitioner (Defendant no. 2) interalia for declaration and permanent injunction. In the said suit the petitioner herein filed an application under order VII rule 11 of the C.P.C seeking rejection of the plaint on 5/12/2017. In the said application the petitioner herein pleaded that the aforesaid suit filed by the plaintiffs is barred under Sec. 69(1) and 69(2) of Indian Partnership Act 1932 as the defendant no. 1 of the suit i.e. the partnership firm is an unregistered firm and the plaintiffs no. 1,2 and the defendant no. 2 are the partners of said partnership farm and the suit relates to the business of an unregistered partnership firm. The plaintiffs/ opposite parties filed their written objection against said application on 8/3/2018 wherein, in paragraph 10, the plaintiffs crave leave to file application for amendment and to add a prayer interalia for dissolution of partnership farm. Subsequently the opposite party/ plaintiffs filed application under Order VI Rule 17 of the Code of Civil Procedure on 27/6/2019, interalia praying for the amendment in prayers of the plaint to include reliefs like

(3.) Mr. Arijit Bardhan learned counsel appearing on behalf of the petitioners submits that learned court below had illegally taken up both the applications i.e. application under Order VI Rule 17 and application under Order VII Rule 11 simultaneously and had passed the order impugned ignoring the well settled proposition of law that as and when an application under order VII Rule 11 of the C.P.C is filed in a suit at any stage, before considering any other application or proceeding in the suit, the court has to dispose of the application under order VII rule 11 of the C.P.C first and thereafter to proceed in accordance with law. In this context he relied upon the judgment of this court in Abhaya Agarwal Vs. Moyna Devo Surana, reported in 2016 (2) CHN (Cal) 663. Mr. Bardhan further contended that in order to consider an application under order VII Rule 11 of the C.P.C., the averments made in the plaint are germane and the averments made in the written statement by the defendant no. 2 are wholly irrelevant and as such the submission of the plaintiff/opposite parties relying upon the averments made in the written statement by defendant no.2 are totally irrelevant. From the averments of the plaint, it is evident that the plaintiff heavily relied upon the last reconstituted deed of partnership dtd. 17/1/1986, in order to derive their rights as partners of the defendants no. 1/partnership firm. Moreover the said partnership deed itself contains an arbitration clause and as such the suit is also barred under the Arbitration and Conciliation Act 1996. Accordingly Mr. Bardhan contended that learned court below ought to have considered the application filed by Defendant no.2 under order VII Rule 11 of C.P.C dtd. 5/12/2017 first and to dispose of the same and thereafter if the suit will continue then to proceed with the amendment application. In fact learned court below justified it's reason for allowing the aforesaid application under order VI rule 17 of the CPC filed by the opposite party no. 1 and 2 herein but failed to disclose any reason for rejection of the application under order VII Rule 11 of the CPC filed by defendant no.2/petitioner herein. In this context Mr. Bardhan further contended that the judgment relied by the opposite parties in support of the order impugned reported in (2009) 3 CHN 24, specifically states in second paragraph when the plaintiffs application for amendment was filed prior to the filing of the defendant's application for rejection of plaint the learned court below did not commit any material irregularity in disposing of the plaintiffs application for amendment of plaint first before dealing with the defendant application for rejection of plaint. Relying upon the same principle, in the instant case, the petitioner's application under order VIII, Rule 11 should have been disposed of first. He further alleged that the amendment application has been filed by the plaintiffs/opposite party no. 1 and 2 herein to destroy petitioner's defence and also the grounds of petitioner's application under order VII Rule 11. Accordingly petitioner has prayed for setting aside the order impugned.