WGH €0URT 0? CHHATTE$GH AT BILASPUR (Hen. Mr. Justice Pritinkér aiwaker} WRFF ?ET§TEGN (C) No. 5718 9f 200? PET§TEGNE&S ’1. Smt. Neeiam Gupta, wife of Subodh DEFENDANTS Kumar Gupta, aged 60 years; 2, Smt. Reena Gupta, daughter of Subudh Kumar Gupta, age 37 years; 3. Sm‘i. Rashi Gupta, daughter of Subadh Kumar Gupta, aged 34 years; 4, Smt Nee’ci Gupia, daughter of Subodh Kumar Gupta, age 30 year's; AH resident 0f Kathi No.17, Sector—4, Chandigarh $, Subadh Kumar Rajaram H,U’F., through Mrs. Neetam Gupta, wlo Subodh Kumar Gupta, resident of Kathi No.17, 8ector—4, Chandigarh. VERSUS RESGQNDENT 1. - Alpha Gupta, widow of Shrikant PLMMTWF Gupta, resident of Starch Factory, Mendsaur. 2. Subodh Kumar Gupta, s/o Rajaramji Gupta, age 65 years, reeident m“ 17, Secter—aé, Chend§garh 3. Krishan Kumer Jindei, eio Ram / Kumar Jindai, residem of 5V Dashehra Maiden, Ujjain. 4(a) $rnt. Sarasvati Devi, widow 0f\\ Rajaram Gupta, resident of Starch Factory, Mandsaur (MP‘) (b) Smt. Parbha AgarwaE, wie BK. Agarwat, res§dent of G—ZfG—15 Charmwood Viiiage, Sura}kund, Faridabad, Haryana. (C) Smt. Manju Agarwai, wio Sh. BK. ' AgrawaL resident of 22, Moti£e§ Nehru Nagar Bhiiai, Disiric‘: Burg. 5. Suryakan’c Gupta, sfo Rajai'amji Gupta, resident of La! Bag, Rajnandgaon, Chhattisgarh. Mrs. Rakhi Garg, wio Sh. Anoop Garg (daughter , af iate Shrikant Gupta) resident of 24? Shrinagar Flat NO 502 Lagardema indore— Madhya Pradesn Mrs. Puja Goyal, Wk) Sh. Vipin Geyal (daughter Qf late Shrikant Gupta), resident Of 1218,5ector 15, Faridabad, Haryana. l\ Mrs. Muk‘ta Goya! wlo Sh. Vishai 8. Goyai (daughter of iate Shrikant Gupta) resident of Rajaram and Brothers Star h Factory campus Mand$aur Madtrya Pradesn Nitin Kumar Gupta, slo Surya Kant Gupta, re$§dent 0f Lat Bag, Rajnandgaon, Chhattisgarh. Mr. Manindra Shrtvastava teamed senior counsei with Mr. Amit Verma for the petitioners. Mr. PKG. Tiweri learned senior ceunsei with Mr. Shashi Bhuehan for the respcndent No.1. Mr. Bhaskar Pyesi counsel for respondents 2, 4(a), 4(b) and 4(c). None for ether respendente though served. WRIT PETtTiON UNQER rQRTiCLE 22? OF THE CONSTITUTION OF IND!A KW/ eRDER (o 1.05.2909) The petitioners are aeeaiiing the correctness of otherwise of the erder dated 4.5.2006 (Annexure P—t) passed by District Judge, Rajnandgaon in Civii Suit No. 4-Al1995 (Smt. Atpana Gupta vs. Subodh Kumar Gupta and Others). By the order impugned {earned Court below has rejected the application tited by the petitioners (newiy added defendants 9 to 13); for framing certain. additionai 1 -3“ issues. Pe‘EEtioners have aiso chaiienged the arder dated 17.11.2006 {Annexure P-2} by which the appiication filed by the petitioners for reviewing the orée? dated 4.5.2006 has been rejected. 2. Capsuiated facts of the case necessary for €he disposal of the instant petition are that one Shri Kant Gupta had fiied a suit for deciaration and permanent iniunction. in the said suit it was prayed that defendant No.1— Subodh Gupta is unnecessariiy interfering with his business and he has no claim whatsoever ever the same. in the suit the original defendants were Subodh Gupta, hisfather Raiaram Gupta, Shreekant Gupta, 8uryakant Gupta and Krishna Kumer Jindal. Subsequentiy, the petitioners tiied an appiieation uncter Order ‘i Ruie 10 of the Code of Civil Procedure which was granted by the Court beiow ano’ the petitioners herein were addeci as the defendants 9 to 13. Petitioners hied their written statement on 20.8.2005 / (Annexure P46). After tiling the written statement. the petitioners tiled an application on 27.12.2005 for framing certain additional issues which are reproduced as hereunder for ready reference: “7. What is the legality and vaiidity of Rajaram’s letter dated 28.1.1993 addressed to Subodh > Kumar Gupta and whether it is vaiid in law? 8. Whether Mrs. Neeiam Gupta, Reena Gupta, (Agrawal), Rashi Gupta (Mohata), Smt. Neeti Gupta (Goel) and Subodh Kumar Rajaram (H.U.F.) defendant No. 9 to t3 are entitled for refund of their deposits with interest as ciaimed by them?” 3. Respondent No.1 opposed this application saying that these additionai issues cannot be framed in the present form and this question has been considered by the 00m below white passing the / order impugned. Whiie passing the order Empugned learned Court below has held that Eooking i0 the written statement and the issues proposed to be framed, no additional issues, can be framed because these additional issues are in the form otcounter claim and for that the petitioners have to file separate counter oiaim by paying requisite court fee. Submission of the counsel for the petitioners is that the Court couid have framed the additionai issues and there was no need for directing them to file a separate counter claim. He submits that the parties are fighting in various courts since 1993 and there would be a further muitiplioity ot iitigation and the Court below couid have oonsoiidated the suit and decided the same hnaiiy. Whiie chailenging the order dated 17.11.2006 counsel for the petitioners ' submits that the review petition has been decided by the Court below by hoiding that the same is not maintainable simply because an application was ftted under Section 151 of the Code of Civit Procedure and the Court beiow ignoring the titEe of the appiication, after considering the submission cf the petitioners in the said application shouid have decided the review application on merits. \/, 4. On the other hand supporting the orders dated 4.5.2006 and \ 17.11.2006 Shri P.K.C. Tiwari learned senior oounsei for the respondents submits that both the orders are strictly in accordance with iaw and there is no iilegaiity in the same. He submits that white , rejecting the petitioners‘ request for framing the additionai issues the Court has taken a very ienient View and given an opportunity to-the petitioners for filing the counter claim and in stead of doing this the petitioners have assaiiecl the said order without there being any legal ground. in respect of order dated 17.1 1 .2006 it is submitted that the review applicatien has been decided on merit, Court has given a categorical finding on this applicatien and mereiy mentioning in the iast paragraph of the order that the appiication is not maintainabie seems to be a cierical mistake. 5. I have heard counsel for the parties at length and perused the material avaiiable on record. 6. in the written statement filed by the petitioners, the toliowing submissions have been made in paragraph No.14 which reads as unden “That the prayer made is paipabiy wrong and incorrect as already stated in para 4 to 6 of written statement that no firm can be dissolved Without discharge of its Iiabiiity as !aia‘ dam/n by Hon’b!e Supreme Court in 1993 JT (1) SC 278 Chandra Pandyan and others vs. Sivalinga Nader. It is further prayed that Rajaram’s aileged letter dated 28.17993 be declared as nu}! and void, the deposfts made by the answering defendants in the partnership firm be deciared as continuing Iiabiiity of the firm and its partners. it is further prayed that since this is a suit for dissolution of firm and rendition of accounts as per the counter claim filed by respondent No.1 and the issues named by this Hon’bie Coart the answering defendants ciaims with interest be settied in the same as per law or any otner relief which this Hon’ble Court deem fit.” 7. Learned Court below while considering this paii paragraph has given a categoricai finding that the relief claimed by the petitioners in the written statement can only be claimed by tiling proper counter claim and based on that two additional issues reDrOduced above cannot be framed as requested by the petitioners. ‘ 8. A bare reading of paragraph 14 of the written statement, the proposed two issues and pleadings of the parties, makes it clear that the additionai issues cannot be framed unless a ‘proper counter ciaim is fiied by the petitioners. 9. This Court is of the considered view that white passing the order impugned dated 4.5.2006 the Court below has rightly exercised its jurisdiction and there is no ittegality apparent on the face of record warranting interference therewith in exercise of the jurisdiction under Article 227 of the Constitution of india. So far as order dated 17.11.2006 is concerned, the review application filed by the petitioners has been substantially decided by the Court below though in the last paragraph it has been mentioned that the same is not maintainable as the application for review was filed under Section 151 of the Code of Civil Procedure. 10. Accordingly, the petition being without substance is liable to be dismissed. it is hereby dismissed. / / / ’i’l. At this stage learned counsel for the petitioners submits that the petitioners may be afforded an opportunity to file the counter claim as directed by the Court below in its order dated 4.5.2006. He submits that the next date fixed before the Court below is in the month of May 2009 itself and the petitioners may be permitted to fiie their counter claim. This request of the counsel for the petitioners seems to be reasonabie. Accordingly, it is directed that if the petitioners make an appiication seeking extension of time for fiiing / the counter ciaim, the same may be considered by the Court below and the petitioners may be given reaeonabte time to file the counter mv/.m., claim. 3d!- Pritinker Diwaker Judge