SAJJAN BAID Vs. SUMERMAL

JUDGEMENT

(1.) By the instant revision petition, under Section 115 of the Code of Civil Procedure, 1908 (for short, 'CPC'), fourth defendant- petitioner has challenged order dated 6th of February, 2017, passed by Addl. District Judge No.1, Jodhpur Metropolitan, Jodhpur (for short, 'learned Court below'). The learned Court below, by the order impugned has rejected application of the petitioner-defendant under Order 7 Rule 11 CPC in a suit for rendition of accounts and permanent injunction laid by first respondent-plaintiff.

(2.) Succinctly stated, the facts of the case are that respondent- plaintiff Sumermal instituted a civil suit for aforementioned reliefs, inter-alia, on the ground that besides being family member petitioner-defendant No.4, Smt. Sajjan Devi is also partner of firm M/s. Baid Gum and Chemicals, situated at Plot No.P/84, Marudhar Industrial Area, II Phase, Basni, having three partners; viz., plaintiff himself, Dhanraj Baid, and defendant No.4/petitioner Smt. Sajjan Baid. It is also averred that aforesaid industrial plot was allotted in the joint name of all the three partners of the firm by respondent RIICO on 31st of October, 1983 and accordingly lease agreement was executed. It is further stated in the plaint that with the concurrence of all the three partners, Shri Dhanraj Baid was entrusted the task of managing business affairs of the firm and he also maintained the account-books. The plaint also contained specific averment that on completion of financial year, respective partners were allotted their share of profit in the firm. As per version of the respondent-plaintiff, business of the firm was fairly well but all of a sudden one of the partners Dhanraj Baid, who was managing the affairs of firm, passed away on 7 th of February, 2011 and after his untimely death the petitioner/defendant No.4 Smt. Sajjan Baid and her son Ajit Kumar took-over the reins of business. With the advent of time, Ajit Kumar took control of entire business and first respondent plaintiff too consented for same by reposing confidence in his ability and further acknowledging his competence to maintain account-books properly. As per the plaint, it so happened that upon completion of financial year 2012-13 when respondent- plaintiff asked Ajit Kumar to show account-books then he informed that during that financial year the firm had not earned any profit.

(3.) To resist the suit and question its maintainability, as being barred by law, at the behest of petitioner-defendant an application under Order 7 Rule 11 CPC was submitted before learned Court below. In the application, it is inter-alia averred by the petitioner- defendant that the suit as such is barred by law being hit by Section 69 of the Partnership Act, 1932 (for short, 'Act'). Therefore, essentially for rejection of the plaint, at the threshold, petitioner-defendant took shelter of clause (d) of Rule 11, Order 7 CPC.