THE HON'BLE SRI JUSTICE G.V. SEETHAPATHY CIVIL REVISION PETITION No.283 OF 2011 ORDER: 1 This revision is directed against the order dated 29.10.2010 passed in I.A.No.945 of 2009 in O.S.No.583 of 2009 on the file of the I Additional Senior Civil Judge, City Civil Court, Hyderabad wherein the said application filed by the Petitioner herein, who is the defendant in the suit, under order VII Rule 11 (d) CPC r/w Section 151 CPC, was dismissed. 2 Heard the learned counsel for the petitioner and the learned counsel for the Respondent. Perused the record. 3 The Respondent herein filed the suit for dissolution of the partnership firm under the name and style of M/s Ramniwas Raja Ram and for taking the accounts of the firm from 01.04.1998 onwards and for ascertainment of the profits. The plaintiff would contend that the partnership was at will and it can be dissolved at any time by any one partner by expressing intention of or by filing suit for dissolution. In the plaint, the plaintiff alleged that the defendant who maintained the day- to-day accounts and was holding cash, malafidely forwarded and furnished improper figures and dishonestly computed the income tax, sales tax and VAT returns from 01.04.1998. The plaintiff made certain allegations pertaining to the alleged fraud and misappropriation and also concealment of amount and stock. The plaintiff got issued a telegraphic notice dated 26.04.2009 expressing his desire for dissolution and followed it up by filing the suit. 4 The Petitioner – defendant filed an application I.A.No.945 of 2009 purporting to be under Order VII Rule 11 (d) CPC. But, in the petition the defendant prayed for return of the plaint. In the affidavit filed in support of the application also the defendant has only prayed for return of the plaint. Question of return of the plaint under Order VII Rule 11(d) CPC does not simply arise. The trial court by the impugned order has considered the application both for return of the plaint and also for rejection of the plaint and held that the Petitioner – defendant failed to make out the case either for return of the plaint under Order VII Rule 10 CPC or for rejection of the plaint under Order VII Rule 11(d) CPC. The trial court, however, further observed that the Petitioner – defendant failed to make out a case for reference of the matter to the arbitrator under section 8 of the Act. Aggrieved by the said order, the present CRP is filed. 5 As seen from the impugned order, the specific point framed for consideration is whether the Petitioner has made out a case for rejection / return of the plaint as provided for under Order VII Rule 11 (d) CPC. Framing of the above point for consideration is rather defective, in the sense that both the aspects of rejection and return do not arise together or alternatively under Order VII Rule 11 (d) CPC which deals with the only aspect of rejection of the plaint on the ground where the suit appears from the statement in the plaint to be barred by any law. The only question that ought to have been considered by the trial court is that if it was an application for rejection of the plaint or where the suit appears to be barred by any law it ought to have considered under Order VII Rule 11 (d) CPC. If it was an application for return of the plaint, it ought to have considered under order VII Rule 10 CPC. The trial court, however, considered both the aspects of return of the plaint under Order VII Rule 10 CPC and rejection of the plaint under Order VII Rule 11 (d) CPC and held against the Petitioner – defendant. 6 The learned counsel for the petitioner would submit that instead of going into the merits of the matter as to return or rejection of the plaint the Petitioner – defendant can be given an opportunity to seek reference of the dispute to an arbitrator in view of clause 15 of the Partnership Deed dated 01.04.1998, which contains a provision that if any dispute or differences arise between the partners touching the affairs of the partnership, the same shall be referred to arbitration under the provisions of the Arbitration Act 1940. In the present application I.A. 945 of 2009 no such reference to arbitrator is sought invoking the above clause of the partnership deed. Though the Petitioner - defendant has not sought for reference to arbitration in the affidavit filed in support of the application, the trial court considered the said aspect also and held against making any such reference of the dispute to arbitration. The said observation made in para 8.03 of the impugned order is unwarranted in so far as the present application I.A.945 of 2009 is concerned. In those circumstances, the said observation contained in para 8.03 to the effect that the Petitioner failed to make out a case for reference of the matter to the arbitration under section 8 of the Act is set aside and the Petitioner–defendant is given liberty to file a fresh application under appropriate provision of law seeking reference to arbitration and the Respondent-plaintiff would be at liberty to oppose the same. If such an application is filed the trial court shall dispose of the same on its own merits in accordance with law and in any manner without being influenced by any of the observations contained in the impugned order and also in this order. 7 The Civil Revision Petition is disposed of accordingly. No order as to costs. ----------------------------- G.V. SEETHAPATHY, J. 21.06.2011 Kvsn