IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.22626 of 2011 ====================================================== Bishwanath Prasad Jaiswal, S/o late Gopaljee Chaudhary, resident of Mohalla-Bakerganj, P.O. & P.S. Laheriasarai, District-Darbhanga .... .... Petitioner/s Versus 1. Mahadeo Prasad Jaiswal, S/o late Gopaljee Chaudhary, resident of Mohalla-Bakerganj, P.O. & P.S. Laheriasarai, District-Darbhanga 2. Sheojee Chaudhary, S/o late Gopaljee Chaudhary 3. Raghunath Prasad Jaiswal, S/o late Gopaljee Chaudhary 4. Shankar Prasad Jaiswal, S/o late Gopaljee Chaudhary Respondent nos. 2 to 4 residents of Mohalla-Bakerganj (Darubhatti Chowk), P.O. & P.S. Laheriasarai, District-Darbhanga 5. Shambhu Prasad Jaiswal, S/o late Gopaljee Chaudhary, resident of Mohalla-Bakerganj (Darubhatti Chowk), at present residing at Mohalla- Benta Sahganj, P.O. & P.S. Laheriasarai, District-Darbhanga .... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 08. 31-08-2012 Heard Mr. Mahesh Narayan Parbat, learned counsel appearing on behalf of the petitioner. This application under Article 227 of the Constitution of India has been filed questioning the order dated 24.3.2007 / 26.3.2007 passed by learned Munsif-1st , Darbhanga in Title Suit No. 23 of 2003, whereby the learned Munsif has been pleased to dispose of the objection raised by the petitioner under Order 7 Rule 11 (d) of the Code of Civil Procedure in the light of the statutory provisions underlying Section 69 of the Partnership Act (hereinafter referred to as the ‘Act’) for deciding the maintainability of the suit as a preliminary issue. By the order Patna High Court CWJC No.22626 of 2011 (8) dt.31-08-2012 2 impugned the learned Munsif has disposed of the application of the petitioner with an observation that the issue raised would be considered at the stage of the final adjudication as one of the issues. Mr. Parbat, learned counsel for the petitioner has, during the course of proceedings, produced the copy of the plaint and although the reliefs under the plaint do not exactly purport to enforce any of the clauses of the deed of partnership dated 1.1.1995 but Mr. Parbat , with reference to the various paragraphs of the plaint has submitted that a plain reading thereof would manifest that the plaintiff in fact seeks to derive his right from the various clauses of the deed of partnership and it is in the backdrop of those clauses that the relief has been brought in the suit proceedings. It is submitted that it is in the aforesaid background that the petitioner requested for deciding the maintainability issue as a preliminary issue and which has been disposed of by the impugned order. Learned counsel thus submits that although for deciding the issue of maintainability of the proceedings in the light of the provisions of Section 69 of the Partnership Act would require evaluation of the evidence but that would not preclude the trial court from deciding the maintainability issue as a preliminary issue. Mr. Parbat, with reference to the provisions of Section 69 Patna High Court CWJC No.22626 of 2011 (8) dt.31-08-2012 3 and the statement made in paragraph 6 of the petition raising objection placed at Annexure-1, submits that a categorical submission had been made by the defendant-petitioner that the firm not being registered under the provisions of Partnership Act, the suit was not maintainable in view of the provisions of Section 69 of the Act as required under Chapter 7 of the Act. Mr. Parbat, in support of his submission has relied upon a judgment of the Supreme Court reported in A.I.R. 1977 SC 336 (Loonkaran Sethia vs. Mr. Ivan E. John and others), more particularly paragraph 20 and 21 thereof to submit that the learned trial court has committed an infirmity in postponing the decision on the maintainability matter. Though served, the plaintiff-respondents have not chosen to appear. I have heard Mr. Parbat, learned counsel for the petitioner and have perused the materials on record. Prima facie, there does not appear to be any infirmity in the order impugned in the present application warranting any interference. However, considering that the issue raised by learned counsel is an issue of law to be substantiated upon consideration of materials on record, this Court is of the opinion that this application can be disposed of with a liberty to the petitioner to renew his prayer before the trial Patna High Court CWJC No.22626 of 2011 (8) dt.31-08-2012 4 court after the issues have been framed and the learned trial court shall consider and dispose of the same in accordance with law in the light of the provisions of Order 14 Rule 2 of the Code as well as in the light of the observations made in the impugned order dated 24/26.3.2007. S.Sb/- (Jyoti Saran, J)