IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17..07..2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.888 of 2007 1. Spur Tank Road Filling Station rep.by its Partner F.Devendran 2. F.Devendran ... Appellants/Defendants 1 & 2 vs. 1. F.Jayakumar 2. The General Manager Indian Oil Corporation Indian Oil Bhavan No.139, Nungambakkam High Road Chennai 600 034. 3. The Chief Divisional Manager Indian Oil Corporation No.139, Nungambakkam High Road Chennai-34 ... Respondents/Plaintiff and Defendants 3 & 4. This second appeal is filed under Section 100 of C.P.C. against the judgement and decree dated 15.02.2007, passed by the learned Additional District Judge, Fast Track Court No.II, Chennai-1 in A.S.No.158 of 2004 reversing the judgement and decree dated 31.03.2000 passed by the learned XI Assistant Judge, City Civil Court, Chennai in O.S.No.9251 of 1987. For Appellants : Mr.A.Natarajan,Sr.counsel for Mr.M.Vivekanandan For Respondents : Mr.T.S.Baskaran for R1 Mr.Anantha Natarajan for R2 and R3 https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT This second appeal is focussed by the defendants 1 and 2, animadverting upon the judgement and decree dated 15.02.2007, passed by the learned Additional District Judge, Fast Track Court No.II, Chennai-1 in A.S.No.158 of 2004 reversing the judgement and decree dated 31.03.2000 passed by the learned XI Assistant Judge, City Civil Court, Chennai in O.S.No.9251 of 1987. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. Niggard and bereft of details, a summation and summarisation of the relevant facts, as found exemplified from the plaint is set out thus: (i) The plaintiff and his brother defendant No.2 Devendran separately applied to Indian Oil Corporation (D3 and D4) to obtain licence to run a petrol bunk; whereupon, Devendran was selected for the grant of dealership to run the petrol bunk as he happened to be a graduate. (ii) Even though the dealership was in the name of Devendran, nevertheless the plaintiff only invested the funds to run the petrol bunk. Accordingly, the plaintiff invested a sum of Rs.20,000/- and started the petrol bunk on 25.12.1979 under the name and style Spur Tank Road Filling Station. D2 did not contribute any amount towards the said business. (iii) The plaintiff only furnished bank guarantee to the Indian Oil Corporation in connection with the dealership. In addition to opening a Bank account with Indian Overseas Bank, Egmore Branch on 28.06.1980 in the name of the said petrol bunk, the plaintiff deposited money in that account so as to enable the bank to stand as guarantor. The plaintiff was fully running the said petrol bunk. He was going on investing money in the said business and in order to safe guard his position, he wanted some arrangements to be made with his brother Devendran and suggested for forming a partnership between them and get it recorded with the Indian Oil Corporation. (iv) On 06.07.1981, the first defendant sent a letter to the Indian Oil Corporation informing that he was taking the plaintiff as a partner in the petrol bunk business and a reminder dated 09.07.1982 was also sent. Whereupon, Indian Oil Corporation, insisted for sending their request in stamp paper as per the instruction of one Chandrasekaran, the then sales Officer of Indian Oil Corporation. (v) The plaintiff and his brother Devendran sent their willingness in writing in a stamp paper; whereupon Indian Oil https://hcservices.ecourts.gov.in/hcservices/ Corporation sent a proforma of partnership to the plaintiff and D2 and they were asked to fill up the same and submit it to the Indian Oil Corporation. The said partnership proforma form was filled by the plaintiff and it was handed over to one C.V.Devarajan, Sales Officer of the Indian Oil Corporation in person by the plaintiff and D2. In fact, the plaintiff and his brother Devendran signed the said partnership deed in the presence of the said officer in his office premises. The said officer verified the signatures of the plaintiff and the first defendant and he also put his signature in it. One Dr.Santhosem Ex.M.P attested the said partnership deed. (vi) The plaintiff got married on 06.09.1983; whereupon misunderstanding arose between the plaintiff and his brother Devendran. Owing to such misunderstanding D2 Devendran started looking after the petrol bunk. The father of the plaintiff also was siding with D2 and trying to defeat the interest of the plaintiff, who attempted to obtain a copy of the said partnership deed available with Bharat Petroleum in vain. D2 is enjoying the properties of the partnership business without sharing it with the plaintiff. Hence the suit to dissolve this partnership. 3. Per contra, denying and refuting, challenging and impugning the allegations/averments in the plaint, the defendants 1 and 2 filed the written statement, the gist and kernel of them would run thus: The plaintiff had nothing to do with the petrol bunk business. D2 in his individual capacity is owning it as his sole proprietary firm. No money was contributed by the plaintiff for such business. No such partnership agreement was signed by the plaintiff and D2 and it was not sent to Indian Oil Corporation. As such, the prayer for seeking dissolution of the alleged partnership is not tenable. Accordingly, he prayed for the dismissal of the suit. 4. D3 and D4 filed the written statement, remonstrating and refuting the allegations/averments made as against D3 and D4 in the plaint as under: (a) The Indian Oil Corporation(I.O.C) granted dealership only in favour of D2 for running the petrol bunk and as per the terms and conditions of allotment of dealership, any variation in such dealership could be undertaken only with the consent of the Indian Oil Corporation. (b) I.O.C. is not aware of the alleged investment made by the plaintiff and it is for the plaintiff to prove this version. The second defendant for the first time wrote a letter dated 05.02.1982 to I.O.C. seeking approval for the reorganisation of the dealership by the admission of the plaintiff as a partner and enclosed a draft of the proposed partnership deed. https://hcservices.ecourts.gov.in/hcservices/ (c) However, D2 subsequently, informed, vide his letter dated 07.02.1984, the Indian Oil Corporation that he had given up the idea of forming the partnership and he wanted to continue the dealership only in his name and consequently, run the petrol bunk as a sole proprietary firm. Accordingly, D3 and D4 prayed for the dismissal of the suit. 5. D1 and D2 also filed the additional written statement, the warp and woof of it would run thus: As per Section 68 and 69 of the Indian Partnership Act, the suit is not maintainable. The suit filed for dissolution of such alleged unregistered partnership is not tenable. 6. The trial Court framed the relevant issues as under. 7. During trial, the plaintiff examined himself as P.W.1 and Exs.A1 to A30 were marked. On behalf of the defendants, the second defendant examined himself as D.W1 along with D.W.2 and and Exs.B1 and B2 were marked. 8. Ultimately, the trial court dismissed the suit. Being aggrieved by and dissatisfied with the judgement of the lower court, the appeal in A.S.No.158 of 2004 was filed before the learned Additional District Judge, Fast Track Court No.II, Chennai, which Court set aside the judgement of the trial court and decreed the suit. 9. Animadverting upon such decreeing of the suit by the Appellate Court, the defendants 1 and 2, have filed this second appeal on various grounds, the gist and kernel of them would run thus: The first Appellate Court misunderstanding as though there was a partnership, ordered for dissolution and granted the incidental relief. Section 69(3) (a) of the Indian Partnership Act was misunderstood by the first Appellate Court; the lower court failed to note that the partnership proforma agreement was never approved by the Indian Oil Corporation. 10. My learned Predecessor admitted the second appeal and formulated the following substantial questions of law for deciding the second appeal. "a. Whether the judgement of the lower appellate Court in reversing the judgement of the trial Court by misconstruing the provisions of Section 69(3)(a) of the Indian Partnership Act, 1932(9 of 1932) as suit filed by the third party for dissolution of partnership firm is https://hcservices.ecourts.gov.in/hcservices/ maintainable in law. b. Whether the first respondent is entitled to the relief of dissolution of partnership firm in the absence of partnership agreement. c. Whether the first respondent is entitled to file a suit to dissolve a partnership firm which is a proprietor concern as evidenced by Ex.B1 and was never recognised as a partnership firm by the 3rd and 4th respondents. d. Whether the lower appellate Court is right while drawing adverse inference against 3rd and 4th respondent and granting the relief so as to infringe the rights of the appellants." 11. After hearing both sides for sometime, I felt that one other substantial question of law under Section 100 of C.P.C. Should be framed as under:- Whether the judgement of the first appellate Court stands vitiated on the sole ground that verbatim the Judge of the first appellate Court adopted the written arguments submitted by the appellant before it, without applying his mind and discretion as the last Court of fact? 12. Both sides took note of this substantial question of law and advanced their arguments in this connection. 13. The learned Senior counsel for the appellants/defendants 1 & 2 would advance his argument to the effect that the first appellate Court, without adhering to Order 41 Rule 31 of C.P.C dealt with the matter and as such, the matter has to be remitted back to the first appellate to consider afresh the first appeal. 14. Whereas, the learned counsel for the first respondent/plaintiff would advance his argument that the first appellate Court, after getting itself satisfied about the genuineness of the case of the first respondent/plaintiff borrowed certain sentences from the written arguments submitted by the plaintiff and rendered the judgement, which cannot be found fault with. 15. The learned Senior counsel for the second appellants/defendants 1 and 2 herein invited the attention of this Court to paragraph Nos.16 to 23 of the impugned judgement of the first appellate Court, which contained the discussion portion, vis-a- vis the written arguments submitted by the first respondent/plaintiff before the first appellate Court. https://hcservices.ecourts.gov.in/hcservices/ 16. I am fully satisfied that from line No.8 under paragraph No.16 of the judgment onwards till the fag end of paragraph No.22, verbatim word by word the first appellate Judge copied and reproduced, lifted and adopted the written arguments submitted by the plaintiff before the first appellate Court. 17. In respect of issue No.1, which the learned Judge ought to have termed it as point No.1, relating to the maintainability of the suit, he expressed his opinion that the suit was maintainable and even there the arguments or objections advanced on the side of the D1 and D2 have not been considered. 18. The oral evidence and the documentary evidence adduced by both sides have not been discussed, as it ought to have been dealt with by the last Court of fact. 19. It is trite proposition of law that the first appellate Court, which happened to be the last Court of fact, to analyse both oral and documentary evidence afresh and arrive at an independent conclusion. 20. In this case, the judgement of the first appellate Court, to say the least, is far from satisfactory, as the learned District Judge has totally ignored his responsibility to analyse the oral evidence and also the documentary evidence and arrived at the conclusion. 21. At this juncture, the question arises as to whether this Court dealing with the second appeal could ignore the judgement of the first appellate Court and re-appreciate the evidence. 22. At this juncture, I would like to recall and recollect the following decisions of the Honourable Apex Court: (i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL,certain excerpts from its would run thus:- "17. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. . . . . . . ." 18. . . . . . It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory https://hcservices.ecourts.gov.in/hcservices/ right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. . . . . . 21. . . . . However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by sufficing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta the phrase "substantial question of law' as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju(Sir Chunilal case, SCR p.557) "When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law." This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:(Sir Chunilal case, SCR pp.557-58) "The proper test for determining whether a question of law raised in the case is substantial would, in our https://hcservices.ecourts.gov.in/hcservices/ opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or call for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." 23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law his a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.(See Santosh Hazari v. Purushottam Tiwari). 24. . . . (iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well- recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." https://hcservices.ecourts.gov.in/hcservices/ (ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. (iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYA: A plain reading of those precedents would reveal and demonstrate that under Section 100 of the Code of Civil Procedure, Second Appeal cannot be entertained, unless there is substantial question of law involved. 23. It is therefore clear that the second appellate Court cannot evaluate the evidence available on record like a first appellate Court and this Court is only concerned with the substantial questions of law. Hence, in such a case, absolutely there is no chance for this Court to decide the second appeal in the wake of the gross misconduct of the Judge of the first appellate Court in not rendering the judgement in accordance with Order 41 Rule 31. 24. I would like to make the point clear that while disposing of this case I have not in any way decided on merits the case of the respective parties. Wherefore, I would like to set aside the judgement and decree of the first appellate Court and remit the matter back to the first appellate Court to consider the appeal afresh in accordance with law. 25. Since, this is a very old matter, the first appellate Court is expected to dispose of the appeal purely on merits untrammelled and uninfluenced by any of the observations made by this Court, within a period of two months from the date of receipt of copy of this order and report compliance. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar msk To 1. The Additional District Judge, Fast Track Court No.II, Chennai-1. https://hcservices.ecourts.gov.in/hcservices/ 2. The XI Assistant Judge, City Civil Court, Chennai. Copy to The Section Officer, V.R.Section, High Court, Madras. 1 cc To Mr.Anantha Natarajan, Advocate, SR.32463 1 cc To Mr.A.Madhu Mathi, Advocate, SR.32463 1 cc To Mr.Chitra Sampath, Advocate, SR.32332 S.A.No.888 of 2007 bky(co) pmk.24.7.2009 https://hcservices.ecourts.gov.in/hcservices/