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2023 Supreme(Raj) 1943
IN THE HIGH COURT OF RAJASTHAN
Rekha Borana, J.
M/s Sai Polyplast and Others – Petitioners
Versus
Santosh Jain – Respondent
S.B. Civil Revision Petition Nos. 13, 15 of 2023
Decided On : 20-01-2023
Advocate Appeared:
For the Petitioner: Kishan Lal Bansal
For the Respondent: C.P. Soni
Headnote:(A) Code of Civil Procedure, 1908 - Order VII Rule 11 - Partnership Act, 1932 - Revision petition against rejection of application claiming suit is not maintainable due to non-impleadment of necessary party and lack of cause of action - Court confirms findings of lower court that specific pleadings regarding loan repayment were made and that non-joinder does not render the suit barred - Limitation excluded due to COVID-19 pandemic as per Apex Court’s directives - Revision petition dismissed. (Paras 1-7, 9-12)
Facts of the case:
The petitioners contended that the respondent’s suit was not maintainable due to the absence of the partnership deed and a necessary party. Respondent asserted a cause of action based on unpaid loan amounts and closure of business by defendants.
Findings of Court:
The court found no fault with the lower court’s reasoning, emphasizing the specific pleading of loan amount non-repayment and that the suit was not time-barred due to the extension of limitation under the COVID-19 pandemic.
Issues: The main issues were whether the plaint disclosed a cause of action and whether the suit was maintainable without a necessary party.
Ratio Decidendi: The court ruled that the absence of a necessary party does not warrant dismissal under Order VII Rule 11, CPC, and that the suit is not time-barred due to the exclusion applicable for the pandemic period.
Result: Revision petitions dismissed.
| Table of Content |
|---|
| 1. revision petition against order rejecting application. (Para 1) |
| 2. plaintiff's failure to annex partnership deed. (Para 2) |
| 3. specific pleadings for recovery of loan established. (Para 4 , 5) |
| 4. non-joinder of party not grounds for dismissal. (Para 6) |
| 5. revision petitions dismissed with directions. (Para 7 , 8 , 17 , 18) |
| 6. limitation raised but excluded due to covid-19. (Para 9 , 10 , 11) |
| 7. preliminary issue regarding limitation to be framed. (Para 12 , 15 , 16) |
ORDER :
S.B. Civil Revision Petition No. 13/2023
1. The present revision petition has been filed against the order dated 21.11.2022 passed by the Additional District Judge No. 2, Jodhpur Metropolitan, Jodhpur whereby an application under Order VII Rule 11 of the Code of Civil Procedure as preferred by the defendants has been rejected.
2. The case of the petitioners/defendants is that the respondent/plaintiff has not annexed the partnership deed along with the plaint and further did not implead one of the partners who was a necessary party to the suit, therefore, the suit, in absence of the impleadment of a necessary party, was not maintainable. He submitted that therefore, the suit was barred in terms of the provisions of Partnership Act. In support of his submission, learned counsel relied upon the Hon'ble Apex Court judgment in the case of Seth Loonkaran Sethiya and Ors. v. Mr. Ivan E. John and Ors.; [1977 (1) SCC 379]. Counsel further submitted that the plaint did not disclose any cause of action and therefore also, the suit was liable to be dismissed.
3. Heard learned counsel for the parties and perused the order dated 21.11.2022.
4. The order specifically takes note of the pleadings as made by the plaintiff in her plaint. The suit is for recovery of certain amounts and it has been specifically pleaded in the plaint that the amount which was given as a loan to the defendants was not repaid to her and therefore, she was entitled for recovery of the said amount from the defendants. A specific pleading has been made that the defendants have closed down their business premise and have left from the said premise 18 months ago. Therefore, the cause of action arose to the plaintiff from that date.
5. A bare perusal of the plaint makes it clear that the specific pleadings regarding the loan amount being given and the same having not been repaid have been made in the plaint. Further, the closure of the factory premises has been pleaded to be a cause of action for filing of the present suit. In the opinion of this Court, the findings as arrived by the court below cannot be faulted with as the same are totally reasoned and in terms of the provisions of Order VII Rule 11, CPC.
6. So far as the ground of non-impleadment/non-joinder of a necessary party is concerned, the same cannot be a ground for dismissal of a suit in terms of Order VII Rule 11, CPC. So far as the judgment relied upon by learned counsel for the petitioners is concerned, the same reiterates the proposition of law of a suit being barred against an unregistered firm in terms of section 69 of the Partnership Act, 1932. There can at all be no dispute about the said legal proposition but evidently, the said proposition would not apply to the present matter as it is not the case of the defendants that the suit was filed against an unregistered firm.
7. In view of the above observations, the present revision petition being devoid of merits is dismissed.
8. The stay petition also stands dismissed accordingly.
S.B. Civil Revision Petition No. 15/2023
9. The present revision petition has been filed against the order dated 21.11.2022 passed by the Additional District Judge No. 2, Jodhpur Metropolitan, Jodhpur whereby an application under Order VII Rule 11 of the Code of Civil Procedure as preferred by the defendant has been rejected.
10. In the present revision petition besides the grounds as raised in the revision petition No. 13/2023, the ground of limitation has also been raised.
11. It has been argued that even if
