JUDGMENT - H. SURESH, J.:---This notice of motion for receiver and injunction is in a partnership action. However, in view of the fact that defendant No. 2, who is not a partner, has been a added as party-defendant, a question arises as to whether this Court has jurisdiction to entertain and try this suit. Defendant No. 2 happens to be the owner of the land which according to the plaintiffs, had been let out to the firm for the purpose of doing their quarry business. In the plaint there is a prayer for a declaration that this quarry is an asset of the firm and that the defendants should not interfere with plaintiffs right to carry on quarry operations from the said land. Mr. Mody appearing for defendant No. 2 contends that if one has regard for the plaint, this is a suit between the tenants and the landlord relating to recovery of possession of land and that, therefore, the suit falls within the scope of section 28 of the Bombay Rent Act, 1947. Mr. Mody submits that this plaint has to be rejected on that this question be tried as a preliminary issue as provided under section 9-A of the Code of Civil Procedure

2. I have accordingly framed a preliminary issue under section 9-A of the Code of Civil Procedure as follows :

Whether this Court has no jurisdiction to entertain and try this suit, in view of defendant No. 2's contention that the suit falls within the scope of section 28 of the Bombay Rent Act, 1947 ?

3. It is well settled that the question of jurisdiction will have to be decided on the basis of the averments made in the plaint. Mr. Mody submitted that the Court should look at the substance of the plaint and not attach any importance to ingenius drafting of the pleadings. There is no dispute about this proposition. In my view if one has regard for the plaint, it is essentially a suit for dissolution and for accounts and incidentally, since a part of the assets, has been sought to be diverted by collussion and connivance between defendant Nos. 1 2, the plaintiff had no choice but to add defendant No. 2 as a party to this suit. But before I observe anything further, I will deal with averments made in the plaint.

4. The plaintiff and defendants Nos. 1 3 are the partners of a firm known as M/s. Gulati Associates. They carry on quarrying business from the suit land bearine Survey No. 42-A. Defendant No. 2 is the owner of the said land. The plaintiff says that a portion of the said land admeasuring about 200 feet by 800 feet is of hilly tract and the said hilly tract has been referred to as the suit land. There is a plan, marked and annexed to the plaint as Ex. A, showing the suit land. The plaintiff says further that defendant No. 1 entered into an agreement dated April 16, 1971 with defendant No. 2 whereby defendant No. 1 was given the right to quarry metal stones and other materials from suit land. The plaintiff says further that defendant No. 1 entered into the said agreement on behalf the partnership firm which was to be constituted subsequently and defendant No. 2 at all material times was aware of the fact that defendant No. 1 was entering into the said agreement not in his individual capacity but on behalf of the firm which was agreed to be formed by defendant No. 1 and certain other members of Gulati family. One Mr. Ahuja was also to be taken as a working partner in the said firm.

5. Under the said agreement defendant No. 2 was to be paid Rs. 2.50 per lorry load of metal stone of rubbleet cetera. This right was conferred to carry on quarry operations till the suit land is completely quarried by bringing it to the ground level. A sum of Rs. 30,000/- was paid by way of deposit by defendant No. 1.

6. The plaintiff says that pursuant to this agreement, quarrying operations were started in February 1972, for and on behalf of the said firm of which the said Mr. Ahuja was the managing partner. A deed of partnership was initially entered into on April 24, 1972, consisting of various members of Gulati family including the pl

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