Case: Soumitra Kumar Sen Vs. Shyamal Kumar Sen &amp; Others

In a suit filed by respondent No.1, the appellant herein (defendant No.1 in the said suit) moved an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (for short, `CPC) claiming rejection of the plaint on the ground that the suit filed by respondent No.1 was barred by res judicata and also under Section 69 of the Indian Partnership Act, 1932. The Civil Judge dismissed the said application vide orders dated May 03, 2016 with the observations that without taking evidence it would not be proper to reject the plaint on the principles of res judicata as it was not permissible for the Court to look into the statements made in the written submissions while dealing with an application under Order VII Rule 11 CPC. Revision petition preferred by the appellant against the said order also stands dismissed by the High Court vide judgment dated December 12, 2016. Dissatisfied with the outcome, the appellant has approached this Court challenging the aforesaid orders of the courts below. The appellant pleads that the High Court as well as the trial court have failed to appreciate that the plaint in question did not disclose any cause of action and was barred by Order II Rule 2 of the CPC which was writ large on the record and for this no evidence is required. In order to appreciate the issue involved, it would be necessary to traverse through the relevant facts, which are as under:2. (A) Respondent No.1 was the sole proprietor of M/s. Sen Industriesrespondent No.4 herein. A piece of land in an industrial area of District Burdwan was allotted by the Asansol Durgapur Development Authority (ADDA) in the name of respondent No.4 on long term leasehold basis. Subsequently, respondent No.4 was converted into a partnership firm with the appellant, respondent No.1 and respondent No.2Anjan Mallick (other partner proforma respondent in these proceedings) as its partners. In the year 1994, a Memorandum of Understanding was entered into between the said partners wherein respondent No.1 agreed to retire from the said company/partnership firm in return for a payment of Rs. 2,00,000/in lieu of his shares in the firm. Accordingly, the payment was duly made and respondent No.1 executed a deed of retirement. The said company continued under the reconstituted partnership between the appellant and respondent No.2, until the latters retirement after which respondent No.4 continued under the sole proprietorship of the appellant.(B) Respondent No.1 filed two separate suits prior to the title suit in question. The particulars of these two suits are asTitle Suit, being Suit No. 103/1995, was filed by respondent No.1 in the Court of Civil Judge (Junior Division), 1st Court at Durgapur, on May 25, 1995 against the appellant and respondent No.2 praying for the following reliefs:"a) a decree of declaration that "Sen Industries is a sole proprietorship firm and the plaintiff is the proprietor of the said firm" the Defendants are liable to retire from the firm Sen Industries.b) A decree of permanent injunction restraining the defendants from claiming the Sen Industries as partnership."During the pendency of the suit, respondent No.2 also retired from the partnership business of respondent No.4 on June 26, 1996 and the partnership between the appellant and respondent No.2 stood dissolved. As per the appellant, he has been carrying on the business of respondent No. 4 as a sole proprietor ever since. On that basis, he contested the suit filed by respondent No.1.After the trial, the trial court was pleased to dismiss the said suit vide its judgment and decree dated March 31, 1997. While doing so, a specific finding was arrived at by the Civil Judge that respondent No.4 is a partnership firm and that in view of the Memorandum of Understanding dated March 23, 1994, the suit was barred by the principles of estoppels, waiver and acquiescence. The appeal preferred by respondent No.1 against the said judgment and decree was also dismissed by the Civil Judge.(ii) Ten years thereafter, i.e. in the year 2008, respondent No.1 filed second title suit being Suit No. 268/2008 before the Civil Judge (Junior Division), Durgapur against the appellant and others claiming as under:"a) for dissolution of partnership firm "Sen Industries";b) for accounts; andc) appointment of receivers etc. against the appellant and the proforma respondent."By order dated July 31, 2014, the Civil Judge dismissed Suit No. 268/2008 observing as under:"...that the plaintiff was a partner of the firm namely "Sen Industries" but he retired from the firm by executing MOU dated 23.03.1994, in this situation the retired partner cannot claim for dissolution of the firm and as per this MOU, accounts were alreadyrespondent No.1 filed an appeal, being Appeal No. 25/2014, before the Civil Judge (Senior Division), Durgapur, challenging the judgment and orders passed by the Civil Judge (Junior Division) in the aforesaid proceedings. This appeal is still pending adjudication.3. Respondent No.1 has filed the instant suit, being T.S. No. 126 of 2015, in the Court of Civil Judge (Junior Division), 1st Court at Durgapur, which is the subject matter of the present proceedings, claiming to be the alleged lessee of the said leasehold property in question against the appellant and others with the followingfor a decree declaring the every leasehold right of the suit property of suit land of M/s Sen Industries stands in the names of Sri Syamal Kumar Sen, Sri Soumitra Sen and Sri Anjan Mallick and for the purpose of building a factory for M.S. Fabrication Mechanical Jobwork;b) for a decree of permanent injunction against the defendants from changing the nature and character and use of the suit land;c) for a decree of mandatory injunction with a direction upon the defendant Nos. 1 and 2 to remove all the unauthorised articles, obstructions, shades, etc. from the suit property at their own cost within a time fixed by the learnedThe appellant as well as respondent No.2 have filed their respective written submissions in the aforesaid suit. Thereafter, the appellant filed the application under Order VII Rule 11 CPC, on the averments noted in paragraph 2 above and submitted aspetitioner herein is the exclusive owner of M/s Sen Industries and is entitled to manage and administer the said property without being disturbed by the respondent No.1 herein;(ii) M/s. Sen Industries was not a registered partnership firm anymore and as such the instant suit was barred under Section 69 of the Indian Partnership Act;(iii) the suit was barred under Order II Rule 2 of the Code of Civil Procedure;(iv) the suit was barred under the principles of res judicata and/or constructive res judicata.As mentioned above, this application has been dismissed by the trial court and the order of the trial court has been affirmed by the High Court as well.

Reasoning:
8. The approach of the courts below, in the given facts, appears to be correct.In the first instance, it can be seen that insofar as relief of permanent and mandatory injunction is concerned that is based on a different cause of action. At the same time that kind of relief can be considered by the trial court only if the plaintiff is able to establish his locus standi to bring such a suit. If the averments made by the appellant in their written statement are correct, such a suit may not be maintainable inasmuch as, as per the appellant it has already been decided in the previous two suits that respondent no. 1/plaintiff retired from the partnership firm much earlier, after taking his share and it is the appellant (or appellant and respondent no. 2) who are entitled to manage the affairs of M/s. Sen Industries. However, at this stage, as rightly pointed out by the High Court, the defense in the written statement cannot be gone into. One has to only look into the plaint for the purpose of deciding application under Order VII Rule 11, CPC. It is possible that in a cleverly drafted plaint, the plaintiff has not given the details about Suit No. 268 of 2008 which has been decided against him. He has totally omitted to mention about Suit No. 103 of 1995, the judgment wherein has attained finality. In that sense, the plaintiff/respondent no. 1 may be guilty of suppression and concealment, if the averments made by the appellant are ultimately found to be correct. However, as per the established principles of law, such a defense projected in the written statement cannot be looked into while deciding application under Order VII Rule 11, CPC.10. Therefore, insofar as trial court dismissing the said application of the appellant, which is upheld by the High Court, cannot be faulted with.