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2005 Supreme(Bom) 1811
IN THE HIGH COURT OF BOMBAY
Sadguru Constructions
VERSUS
Jaimeet Kaur Nirmansingh Sial
Decided no: DECEMBER 23, 2005
Subject
Civil Law - Stay of Suit
Act Referred
CONSTITUTION OF INDIA : Art.227
PARTNERSHIP ACT : S.69(3)(a), S.69
Headnote
Now turning to the third aspect that is whether reliefs claimed are identical and whether it can be said that the issue involved in both the suits is wholly or substantially the same. It is not in dispute that prayers which are made in the present suit are much larger including the 1/4th of the total share of deceased in the partnership firm. It is also not in dispute that the suit is also filed for accounts by the respondent No. 1 whereas in the first suit no such reliefs are sought. The issue as to the accounts of the deceased partner in the firm of petitioner is not a subject matter of the issue in the first suit. Thus it cannot be said that relief sought and/or issue involved in both the suits are identical and therefore the second suit should be stayed under Section 10 of the CPC.
Civil Procedure Code, 1908 - Section 10 Stay of suit First suit filed by wife of deceased partner in an unregistered partnership Second suit filed by daughter of deceased partner and plaintiff in the first suit Parties, cause of action and reliefs claimed in both the suits held are not identical Second suit rightly not stayed. Where one partner of the unregistered firm died, his wife filed a suit seeking induction as a partner in the said firm. The first suit is filed by mother of respondent No. 1 claiming her own independent right as legal heir of deceased partner. The right claimed by the mother is claimed in her own individual capacity in respect of estate of the deceased. Merely because the claim is made in respect of estate of deceased it cannot be said that the plaintiff in that suit is claiming right through the deceased. Second suit was filed by the daughter of the deceased partner for a declaration that she is entitled to 1/4th share of the deceased ’s interest in the said partnership firm as legal heir and representative. She has also claimed that she is also entitled to accounts of the firm. The right claimed by respondent No. 1 daughter in the suit is claimed by her in her own individual capacity. Both the parties in the first suit and second suit cannot be treated as the same parties on the ground that they are claiming through the deceased partner. The cause of action in both the suits is also different. In the first suit cause of action which has been sought to be established is by the mother for her share and in the second suit cause of action is sought to be established is by respondent No. 1 for her own share. Once both are claiming their individual shares it cannot be said that cause of action in both the suits is identical. Now turning to the third aspect that is whether reliefs claimed are identical and whether it can be said that the issue involved in both the suits is wholly or substantially the same. It is not in dispute that prayers which are made in the present suit are much larger including the 1/4th of the total share of deceased in the partnership firm. It is also not in dispute that the suit is also filed for accounts by the respondent No. 1 whereas in the first suit no such reliefs are sought. The issue as to the accounts of the deceased partner in the firm of petitioner is not a subject matter of the issue in the first suit. Thus it cannot be said that relief sought and/or issue involved in both the suits are identical and therefore the second suit should be stayed under Section 10 of the Civil Procedure Code. Therefore, t he impugned order dated 6.10.2005 passed by Jt. Civil Judge, Senior Division, Pune dismissing the application under Section 10, Civil Procedure Code filed by the petitioners does not require any interference under Article 227 of the Constitution of India.
( 2 ) IN 1985 a firm of Satguru Construction was constituted with three partners namely Sardar Nirman singh, Sardar Harpal Singh and Sardar Sujan Singh. The said partnership was unregistered. As per the terms and conditions of the said partnership agreement the partnership commenced w. e. f. 1985. All the three partners had equal share. Under clause 14 of the said partnership it was provided that on the death of a partner partnership does not come to an end and shall be continued by the surviving partners. On 20. 10. 02 one of the partner Shri Nirman Singh Sial died leaving behind respondent no. 1 to 4 as legal heirs. Dr. Smt. Gurucharan Kaur Nirmansingh Sial who was the wife of the deceased and mother of respondent no. 1 filed a suit being RCS Suit No. 220 of 2003 sometime in or about 1. 2. 03 before the Civil Judge Senior Division pune. The reliefs which were sought in the said suit were that it be declared and ordered that the plaintiff should be inducted as a partner of the said firm and the second relief sought is that the defendants should be restrained from selling or entering into any transaction relating to the property of the firm till suit is finally disposed of. Prayers in the said suit no. 220 of 2003 preferred by Dr. Smt. Gurucharan Kaur nirmansingh Sial are reproduced hereunder:"10. (a) It is to be declared and ordered that the plaintiff is to be inducted as a partner of the Defendant no. 1 firm. (b) The Defendants permanently may be restrained from sale or any transaction relating to the suit property till the suit is finally disposed off or decided. (c) The costs of the suit may be awarded to the Plaintiff from the Defendants. "
( 3 ) ON 7. 11. 03 suit was dismissed as not maintainable because of non-registration of firm under s. 69 3 (A) of the Indian Partnership Act, 1932. The first appeal was allowed holding that the said suit is maintainable. Against the said order and judgement dt. 7. 1. 04 second appeal was filed being second appeal no. 489 of 2004. The said second appeal is admitted and is pending before this court and there is a stay of further proceedings in the suit filed by the deceased wife Dr. Smt. Gurucharan Kaur Nirmansingh Sial.
( 4 ) ON 1. 9. 05 the present respondent no. 1 filed a suit being R. C. Suit No. 1160 of 2005. The respondent no. 1 is a daughter of the said Dr. Smt. Gurucharan Kaur nirmansingh Sial and the deceased partner Nirmansingh sial. The said suit was filed interalia for a declaration that she is entitled to 1/4th share of the deceaseds interest in the said partnership firm as legal heir and representative she has also claimed that she is also entitled to accounts of the firm. The respondent no. 1 has also prayed in the said suit as heir of Nirmansingh Sial that she is also entitled to partnership in the said firm and sought injunction against the co-partners for disposing of the properties of the said partnership firm. The prayers in the said suit reads as under:"19. (a) It be declared that plaintiff is entitled to claim share to the extent of one fourth of the total out of the share of her father. (b) That plaintiff being legal heir of the deceased Nirmansingh Sial is entitled to claim partner in the defendant no. 1 firm. (c) That defendant no. 1 and 2 individually or on behalf of their assignee, executors, administration etc. be restrained by order of permanent injunction not to transfer by way of sale, agreement or any other manner or further not to improve the suit property. (d) That defendant no. 1 and 2 be directed to settle the accounts of the plaintiff after determ
