DURYODHAN JENA Vs. SATYABADI SAMAL

JUDGEMENT

(1.) The defendant 1 in T.S. No. 40/83 filed before the Subordinate Judge, Parlakhemundi, is the petitioner in this application under S.115 of Civil P. C. seeking to challenge the order of the Court accepting the application of the plaintiff under O.23, R.1(3)(b), C.P.C. for permission to withdraw the suit with liberty to file a fresh suit. Satyabadi Samal, opposite party 1 in this application, filed the suit impleading the petitioner, Duryodhan Jena and the opposite parties 2 to 9 as defendants therein. The relief sought in the plaint was for permanent injunction restraining the defendant 1 not to interfere with his right, title, interest and possession over the suit property. The gist of the averments in the plaint was to the effect that the plaintiff was the owner of the land comprised in Khata No. 340, Plot No. 733, situated in mouza Gurandi, being his ancestral property. The plaintiff was in possession of the said land and was paying kist for the same before and after the abolition of the Parlakhemundi Estate. The plaintiff and defendant 1 are close relations of each other, the former being brother-in-law (Sala) of the latter and the plaintiffs daughter having been given in marriage to the son of defendant 1. The other defendants were close to these parties and they contributed funds towards share capitals for establishment of a cinema house in Gurandi village on the suit land. The theatre runs under the name of "Pratibha Talkies, Gurandi". It was decided that the plaintiff would be managing partner of the cinema. After the building was completed and necessary machineries installed therein, the then Collector and District Magistrate, Ganjam inaugurated the cinema on 17-8-1956. On 1-9-1959 an agreement was executed by defendant 1 that the defendant 4, A. Appa Rao and the plaintiff would run the cinema for 3 years and would pay Rs. 6,000/- per annum to the shareholders mentioned above. Since the defendant 1 was taking active interest in construction of the building of the cinema and he was the only person amongst the partners who was educated and well conversant with English Language, he became the manager of the cinema. According to the plaintiff, since he was the owner of the land on which the cinema building was constructed and contributed funds for purchase of furniture for the theatre, he was enjoying absolute rights over the said theatre and the other shareholders were getting their share of profit. It was further averred in the plaint that A. Appa Rao, Bendi Sitamboro Rao and Poornochandrao Patro died. Appa Rao's share was purchased by defendant 6, and he became the partner. Defendant 7, the widow of Bendi Sitamboro, became the partner after the death of her husband. Similarly, defendant 9, the widow of Poornochandra Rao, became the partner after the death of her husband. In spite of demand of the partners for accounts and for distribution of profit, defendant 1 did not render accounts. He surreptitiously took away the records and kept them concealed somewhere. The plaintiff further averred that he, as managing partner, remodelled the building of Pratibha Talkies. The licence issued for running the cinema expired on 31-10-1983. In spite of there being no licence, defendant 1 who had no right, title, interest or possession over the property began to forcibly operate the cinema and was making illegal collections. Though the plaintiff had forbidden defendant 1 not to exhibit films he paid no heed to it. On these averments the plaintiff sought for permanent injunction in terms already indicated above.

(2.) Defendant 1, Duryodhan Jena (petitioner in this proceeding), alone filed a written statement. Therein he denied most of the averments made in the plaint. He asserted that the plaintiff was neither the owner of the suit property nor was he in possession thereof. He further stated that the plaintiff had not constructed the suit house as alleged by him. Indeed, the suit site belonged to the defendant as the rightful owner of the land. He constructed the Cinema Hall to the knowledge of the plaintiff and all concerned. He denied that the plaintiff and other defendants had any interest in the suit property, the suit house and the machinery in the cinema. In para 5 of the written statement the defendant expressly stated that the allegation of formation of a partnership is false. There was never any partnership either registered or unregistered or otherwise. There were merely some proposals and the same were never accepted or acted upon. There was never any existence of instrument of partnership. According to the defendant 1, since 1956 he had been the sole and exclusive owner of the suit property and of the cinema hall, M/s. Pratibha Talkies, as its sole proprietor. It was the further case of the said defendant 1 that Gobinda Samal, the father-in-law of defendant 1, the father of the plaintiff gifted 50 cents of land towards 'Haladi-Sindur' to her daughter at the time of Kanyadana as per caste custom. Gobinda Samal materialised the solemn gift by endorsing his consent during the time of enquiry by the Revenue Authority in approving the selected site to construct the temporary cinema hall between 1955-56, later named as "Pratibha Talkies". The defendant 1 claimed to have acquired prescriptive title over the suit cinema hall. He further claimed to have obtained necessary licence for exhibition of cinema from time to time in his name after satisfying the concerned authority that he was the sole proprietor of the cinema theatre. On these averments, the defendant 1 stated that the plaintiff had no right, title and possession over the suit property and hence, he was not entitled to the relief of injunction.

(3.) Subsequently, the plaintiff filed a petition under O.23, R.1(3), C.P.C. praying for permission to withdraw the suit with liberty to institute a fresh suit. In the said petition he averred, inter alia, that M/s. Pratibha Talkies is a partnership concern; to start the cinema show the plaintiff and the defendants 1 to 9 had contributed their share capitals; while the plaintiff was managing the partnership, the defendant 1 was the manager of the concern. He further averred that defendant 1 in his written statement had denied the existence of partnership and claimed exclusive ownership of the cinema. In these circumstances, the plaintiff felt that it was desirable to pray for dissolution of the partnership firm, ask for accounts to defendant 1 and to injunct the District Magistrate, Ganjam from issuing the licence in the name of defendant 1, who it appears had been obtaining licence for running the cinema in his own name by practising fraud. According to the plaintiff, since the present suit was one for injunction only and the District Magistrate, Ganjam was not a party in the suit, he had been advised to file a comprehensive suit to get reliefs relating to the subject matter of the dispute. Unless permission to withdraw the suit with liberty to file a fresh suit was granted, plaintiff would suffer irreparably as he would not be able to get effective relief in the suit.