OSMAN MULLICK Vs. MOHAMMAD ALAUDDIN

JUDGEMENT

(1.) The Law Courts would be within its jurisdiction to reject a plaint in the event, the suit is barred under any law or in the event the plaint does not disclose a cause of action under Order 7 Rule 11 and to do so would be a plain exercise of judicial power and there ought to be any hesitation in regard thereto. It is to be noted that such a scrutiny and subsequent order thereon would be passed upon consideration of the averments in the plaint as correct.

(2.) Mr. P. K. Das appearing in support of the application strongly contended that the plaintiff-firm is not registered under the Indian Partnership: Act and the persons suing as partners, viz. plaintiff Nos. 2, 3, and 4 are not shown in the Register of Firms as partners thereof and since the suit has been filets by the plaintiff to enforce a right arising from a contract, the plaintiffs are liable to be non-suited by reasons of the provisions as contained in Section 69(1) and 69(2) of the Indian Partnership Act. Secondly, Mr. Das contended that the suit is also barred under the provisions of Rules 99 to 103 of Order 21 of the Code of Civil Procedure. The only remedy of the plaintiffs who are alleged to have been dispossessed of immoveable property in execution of the decree is to apply under the aforesaid provisions of the Code and such application is to be heard and decided hi accordance with the above noted provisions and not by a separate suit. As such Mr. Das contended that the suit is thus liable to be dismissed in limine. In fine Mr. Das contended that upon perusal of the plaint it appears also that on the face of the averments in the plaint, it does not disclose any cause of action against the defendants. As such Order 7 Rule 11 has its full play in the matter.

(3.) On the factual score as appears from the plaint, it appears that one Osman Mullick made and created a wakf estate by a deed of wakf dated August 13, 1904, whereby and whereunder the above-named Osman Mullick appointed himself as Mutwali of the wakf estate and made himself a monthly tenant in respect of a shop room in one part of the ground floor of premises No. 7 and 7/1, Dharamtolla Street, now known as Lenin Sarani, Calcutta (hereinafter referred to as the said premises). Subsequently the defendant No. 3 was appointed as the Mutwali of the wakf estate and th6 business of Osman Mullick continued to be run in partnership with others paying a rent of Rs. 300 per month according to English Calendar month. The terms and conditions of the partnership business was thereafter reduced to writing under a deed of partnership whereby the plaintiff Nos. 2 and 3 along with defendant No. 3 and one Musstt. Saleha Khatoon continued to be the partners thereof. By an oral Hiba in July 1979 the above named Musstt. Saleha Khatoon made a gift of her share in the partnership firm to her daughter Musstt. Rashida Khatoon, plaintiff No. 3 herein. It is to be noted incidentally on the factual score that the defendant Nos. 1 and 2 at all material times was and still are carrying on business in partnership under the name and style of "M/s. Fashion Mart". The shop room was also situated in the building at premises No. 7 and 7/A, Lenin Sarani, as a monthly tenant under the Wakf Estate.