This revision petition has been filed by the petitioners aggrieved against order dated 28.02.2018 passed by the Addl. District Judge No.1, Udaipur
Camp Mavli, whereby the application filed by the petitioner under Order VII, Rule 11 CPC, has been rejected.
A suit was filed by the respondent-plaintiff for rendition of accounts, declaration and partition pertaining to a partnership firm with the allegations that
an oral partnership firm M/s. S.K. Engineering Works was established between the plaintiff and the defendants for fabrication and erection work.
After indicating the facts pertaining to the firm and the alleged dispute, the following reliefs were sought in the plaint:-
“d- ;g fd Hkkxhnkjh QeZ esllZ ,l- ds- bUthfu;fjax oDlZ dk fo?kVu fd;k tkdj izfroknh la[;k 1 ¼,d½ dks vknsfâ€kr fd;k tkos fd og oknh dks bl
QeZ }kjk blds fo?kVu rd fd;s x;s O;olk; dk lEiw.kZ fglkc le>kdj oknh dks mldk ykHkkaâ€k vnk djs] rFkk] [k- ;g ?kksf""kr Qjek;k tkos fd fnukad 14-12-
2011 ¼pkSng fnlEcj lu~ nks gtkj X;kjg½ dks izfroknhx.k }kjk bl okn&i= dh pj.k Øe 7 ¼lkr½ esa of.kZr Hkw[k.M Ø; djus esa yxk O;; vkSj bu
ij fd;s x;s fuekZ.k esa yxk O;; QeZ esllZ ,l- dsbUthfu;fjax oDlZ }kjk fd;s x;s O;olk; ls tqVk;k x;k] rFkk]
x- ;fn nkSjkus dk;Zokgh okn bl okn&i= esa of.kZr py&vpy lEifr ds vykok vU; dksbZ py&vpy lEifr izfroknhx.k }kjk vius ;k vius ifjtu ds uke ij vftZr dh
tkuk jksâ€ku gks rks ml py&vpy lEifr dks Hkh le>k;s tkus okys fglkc esa 'kkfey fd;k tkos] rFkk]
?k- ;fn izfroknhx.k oknh dks fglkc&Qgeh esa lUrq""V dj ikus esa vleFkZ jgrs gksa rks fodYi esa oknh dh ek¡x gS fd ;g ?kksf""kr Qjek;k tkos fd
okn&i= dh pj.k Øe 7 ¼lkr½ esa of.kZr Hkw[k.Mksa vkSj bu ij fd;s x;s fuekZ.k esa oknh dk 1@2 ¼,d cVk nks½ fgLlk gS vkSj oknh blesa
viuk fgLlk foHkkftr djkdj vius 1@2 ¼,d cVk nks½ fgLls dk rugk vkf/kiR; izkIr djus dk vf/kdkjh gS] rFkk] M- izfroknhx.k ds fo:) ;g LFkk;h
fu""ks/kkKk iznku dh tkos fd os okn&i= dh pj.k Øe 5 ¼ikap½ esa of.kZr py lEifr vkSj okn&i= dh pj.k Øe 7 ¼lkr½ esa of.kZr Hkw[k.Mksa
vkSj bu ij fd;s x;s fuekZ.k dks [kqnZ&cqnZ ugha djsa@djkosa] ,slk dksbZ dk;Z ugha djsa ftlls oknh ij fdlh Hkh rjg dk dksbZ Hkkj iM+rk gks] rFkk]
 p- izdj.k O;;] vf/koDrk ikfjJfed ,oa vU; vuq""kaxh O;; oknh dks izfroknh ls fnyk;s tkos] rFkk]
N- vU; dksbZ U;k;ksfpr vuqrks""k tks U;k; fgr esa oknh dks izfroknh ds fo:) fnyk;k tkuk ekuuh; U;k;ky; mfpr le>s] fnyk;k tkosAâ€
Alongwith the suit, an application under Order XXXIX, Rule 1 and 2 CPC was also filed.
The petitioner filed reply to the application under Order XXXIX, Rule 1 and 2 CPC and also filed application under Order VII, Rule 11 CPC, inter alia,
on the ground that as the alleged partnership firm was unregistered, the suit was barred by law in view of the provisions of Section 69 of the Indian
Partnership Act, 1932 (‘the Act’).
The application was resisted by the plaintiff.
The trial court after hearing the parties, by its impugned order came to the conclusion that the suit was covered under proviso to Section 69(3) of the
Act and, therefore, it cannot be said that the suit was barred by law under provisions of Section 69 of the Act and, consequently, dismissed the
application.
It is submitted by learned counsel for the petitioner with reference to provisions of Section 69(3) of the Act that the same envisage enforcement of
any right to sue for dissolution of a firm or for accounts of a dissolved firm or any right or power to realize the property of a dissolved firm and as the
plaintiff has sought all the three reliefs together when admittedly the firm has not been dissolved so far, the plaint was liable to be rejected.
Further submissions have been made that if the relief regarding dissolution of the firm is denied by the trial court, then other reliefs would be barred,
which aspect has not been considered by the trial court and, therefore, the order impugned deserves to be quashed and set aside.
I have considered the submissions made by learned counsel for the petitioners and have perused the material available on record.
A bare perusal of the reliefs claimed by the plaintiff would indicate that the first relief pertains to dissolution of the firm and rest of reliefs, which have
been claimed in the plaint are consequential to the relief of dissolution of the firm.
Provision of Section 69(3) of the Act insofar as relevant reads as under:-
“(3) The provision of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract,
but shall not affect,-
(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of
a dissolved, or
(b) the powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909 (3 of 1909) or the Provincial Insolvency
Act, 1920 (5 of 1920) to realise the property of an insolvent partner.â€
A bare look at the provision would indicate that the provision of Sub-Section (1) & (2) of Section 69 of the Act, which provides that no suit to enforce
a right arising from a contract shall be instituted in any Court by or on behalf of or against an unregistered firm, however, Sub-Section (3) provides for
an exception, which provides that the enforcement of any right to sue for dissolution of a firm or for accounts of a dissolved firm or any right or power
to realize the property of a dissolved firm would not be affected, even in case where the partnership firm is unregistered.
The submissions made by learned counsel for the petitioners that though the plaintiff could have filed the suit for dissolution of the firm, the rest of the
reliefs, which pertain to a dissolved firm could not be claimed by him, cannot be accepted, inasmuch as, the reliefs claimed are only consequential and
are dependent on the dissolution of the firm.
The further submission made also cannot be accepted that after the suit for dissolution of a firm is decreed then only another suit for the purpose of
rendition of accounts of a dissolved firm or any right or power to realize the property of the firm could be filed as the relief for rendition of accounts
and for realization of a property of the dissolved firm even in case where the firm is an unregistered firm can be prayed for in the same suit and would
always be consequential to the dissolution of the firm.
In view thereof, the submissions made in this regard cannot be countenanced.
So far as the submissions pertaining to the grant of relief consequential to dissolution of the firm in case the dissolution is refused by the trial court is
concerned, there is nothing in the order passed by the trial court to give rise to apprehension as expressed by the learned counsel for the petitioner.
In view of the above, there is no substance in the revision petition, the same is, therefore, dismissed.
