JUDGMENT :

C.L. Soni, J.

1. Respondent No.2 is shown as not served. However, since he is not a necessary part for the purpose of deciding this petition, learned advocate Mr. A.J. Shastri rightly requested to permit him to delete respondent No.2 from the title clause of the petition. Permission as sought is granted. The respondent No.2 stands deleted from the title clause of the petition.

2. In this petition filed under Article 226 of the Constitution of India, the petitioner (defendant No.1) has challenged the order dated 12.7.2012 passed by the Principal Senior Civil Judge, Porbandar below application Exh.96 in Special Civil Suit No.40 of 2009 preferred by the petitioner under Order 7, Rule 11 of the Code of Civil Procedure (the Code) for rejection of the plaint on the ground that the suit filed by respondent No.1 herein is barred by Section 69 of the Indian Partnership Act, 1932 (the Act).

3. Learned Judge has come to the conclusion that the respondent No.1 has prayed for one third share in the joint family (partnership business) and for getting the accounts of that business as well as for dissolution of the partnership in the suit and therefore, such suit is not barred under Section 69 of the Act.

4. I have heard learned advocates for the parties.

5. Learned advocate Mr. A.J. Shastri for the petitioner submitted that there is no material placed by respondent No.1 with the suit to establish that he was a partner of the firm. Mr. Shastri submitted that prima facie there is no existence of partnership and it is just a bald assertion of the respondent No.1 in his plaint that the business was carried on between the parties in the partnership firm but there is no written document for so-called partnership and such partnership since cannot be registered, the suit filed by the respondent No.1 arising out of the alleged contract between the parties is barred under Section 69 of the Act and thus not maintainable. Mr. Shastri submitted that the learned Judge has not properly approached the issues raised by the petitioner inasmuch as the learned Judge has considered the issue as regards the partition of the family business which is not germane for decision on the application preferred by the petitioner under Order 7, Rule 11 of the Code. Mr. Shastri submitted that there is no cogent cause of action stated in the plaint and claim in the suit without such cogent cause of action cannot be entertained and therefore, the application preferred by the petitioner was required to be allowed. Mr. Shastri submitted that the petitioner had successfully made out a case under Order 7, Rule 11 of the Code in the context of provisions of Section 69 of the Act vis-a-vis the claim made in the plaint and therefore, the application preferred by the petitioner was required to be allowed.

6. In support of his arguments, learned advocate Mr. Shastri has relied on the following decisions:-

(1) In the case of Laljibhai Ramjibhai Hamirani v. Lavjibhai Haribhai Mandanka and Others reported in 2009(1) GLR 879;

(2) In the case of Loonkaran Sethia etc. v. Mr. Ivan E. John and others etc. reported in AIR 1977 (SC) 336;

(3) In the case of Maniyar Solanki & Co. v. Sanghi Nathalal Allarakhabhai & Anr. reported in 2001(3) GLR 2041.

7. As against the above arguments, learned advocate Mr. Apurva Jani for learned advocate Mr. Ashish Dagli for respondent No.1 submitted that the suit is for share in the joint family business. Mr. Jani submitted that for the suit claiming to be a partner in the partnership firm, for the accounts of the partnership firm and for dissolution of the partnership firm, there is no bar under Section 69 of the Act. Mr. Jani submitted that sub-section (3) of Section 69 of the Act clearly provides that the bar contemplated under sub-section (1) of Section 69 of the Act shall not apply to the suit for enforcement of the claim of dissolution of the partnership and for accounts of the partnership business. Mr. Jani submitted that there is no provision in the Partner