JUDGMENT :

K.R. Shriram, J.

1. Appellant is impugning an order dated 16.01.2021 passed by the Additional Judge, Small Cause Court, Pune, rejecting the plaint under Order VII Rule 11(d) of the Code of Civil Procedure (CPC). The Trial Court came to a conclusion that Plaintiffs’ firm M/s. Gangotri Developers was not existing in the records of Registrar of partnership firms and Plaintiffs did not produce any document to show that Plaintiff No.1 and Plaintiff No.2 were mentioned as partners in the Register of Firms on the date the suit was filed, and hence the suit was barred under the provisions of Section 69 of the Indian Partnership Act, 1932.

2. Appeal was listed for admission today. Since the issue was short, i.e., could trial court summarily reject the plaint under Order VII Rule 11(d) of CPC on the ground of barred by law in force, with the consent of the counsel we decided to take up the Appeal for final hearing, at admission stage.

3 The law on the provisions of Order VII Rule 11 of CPC is quite settled. An application for rejection of plaint under Order VII Rule 11 of CPC can be entertained only if the plaint on the face of it discloses that the suit is barred by any law in force, and not by referring to materials which are sought to be placed on record by defendant in answer to the plaint. In case, defendant requires to refer to any material other than the plaint, like in this case has happened, certainly such an exercise is permissible by way of leading evidence after framing issues and satisfying the court about non-maintainability of the suit. But the same exercise cannot be done under Order VII Rule 11(d) of CPC. The courts have held on account of any material being available with defendant to prove that the suit being not maintainable, the same cannot be a ground to non-suit Plaintiff by exercise of power under Order VII Rule 11(d) of CPC. In order to get the necessary relief on the basis of such materials defendant will have to lead necessary evidence by producing such materials on record in accordance with the provisions of law and only thereupon the court can take appropriate decision as regards the objection sought to be raised by Respondents regarding non- maintainability of the suit.

4. Plaintiff had filed the suit on the basis that Plaintiff No.1 and Plaintiff No.2 are partners of Gangotri Developers a registered partnership firm. In paragraph 4 of the plaint, there are averments to the effect how Plaintiffs’ claim to be admitted as partners, and there are positive averments that Registrar of Firms has been informed about the same and presently, i.e., when the suit was filed, Plaintiff No. 1 and Plaintiff No. 2 were the existing partners of the firm. There is also an averment in the plaint that from 31.12.2009 Plaintiff firm was continuing with two partners, namely, Plaintiff No.1 and Plaintiff No.2, and after Plaintiff No.2 died, Plaintiff No.2A came to be added as partner. The dispute relates to accounts and declaration.

It is Plaintiffs’ case that the erstwhile partner of the firm, Defendant No.1 in collusion with Defendant No.2 to Defendant No.4 had filed a suit behind Plaintiffs’ back and though the firm was shown as Defendant No.1 in the suit, the summons was never served upon the firm and a consent decree was obtained by which Defendants herein grabbed properties of the firm.

5. Hence, the Special Civil Suit No. 607 of 2014 was filed for declaration and cancellation or setting aside the fraudulent decree and suit is also for permanent injunction against defendants.

6. While considering the application taken out under Order VII Rule 11 of CPC, the Trial Court has not just considered the plaint, but also has gone into various material that defendants produced. The Trial Court has also, while hearing the application under Order VII Rule 11 of CPC, called upon Plaintiffs to prove that Plaintiff No.1 and 2A are partners of Gangotri Developers. The Trial Court has proceeded on the basis that Plaintiffs have not prod