This Civil Revision Petition is focussed against the order dated 24.10.2005 in I.A.No.1066 of 2005 in O.S.No.592 of 2004 on the file of the I Additional District Munsif, Nagercoil.
2. Heard both sides.
3. The facts giving rise to the filing of this Civil Revision Petition as stood exposited from the records would run thus:
The respondent herein viz. Hindustan Trading Company, which according to the plaintiff, an unregistered partnership, filed the suit in O.S.No.592 of 2004, in the District Munsif Court, Nagercoil, for recovery of certain sum of money from the petitioner/defendant, in connection with some business transaction. During the pendency of the suit, the written statement was filed raising objection that the suit filed by the by the respondent as such was not tenable in view of the embargo as found embodied under
Section 69 of the Partnership Act. I.A.No.1066 of 2005 was filed by the respondent/plaintiff for impleading the other partners in addition to the Managing partner who was already on record. Thereupon the trial Court after hearing both sides, allowed the I.A.
4. Being aggrieved by and dissatisfied with such an order of the lower Court, this Civil Revision has been focussed on the main ground that when the suit is not maintainable in view of
Section 69 of the Partnership Act, the application should have been dismissed.
5. The point for consideration is as to whether the trial Court's order is fraught with infirmity and that too, in view of having passed the order ignoring
Section 69 of the Indian Partnership Act.
The Point:
6. Ex facie and prima facie, I could see some procedural irregularities which was ignored by the trial Court in entertaining the I.A. Here, the proposed parties to be added are the plaintiffs along with the existing plaintiff viz. Hindustan Trading Company.
7. The normal procedure is that the existing plaintiff should have been cited as the first petitioner/plaintiff and the proposed plaintiffs should have been shown as the remaining petitioners/proposed plaintiffs in the short cause title and they should have been described as proposed plaintiffs in the list amended. But, the cause title would show as under: "1.M/s.Hindustan Trading Company, Rep. by its Managing Partner, Edwin Alex ... 1st Respondent/ Plaintiff
2.Mrs.Roseline E Alex
3.Beena E Alex
4.Regith E Alex ... Respondents 2 to 4
8. In fact, the address for service of notice on the plaintiffs was shown at the end of the petition. The procedure adopted by the trial Court is not correct.
9. Be that as it may, now the objection by the Revision petitioner/defendant herein is that the trial Court ignoring
Section 69 of the Indian Partnership Act, simply allowed the petition. I could see considerable force in the submission made by the learned Counsel for the petitioner herein. Already, in the written statement, the petitioner/defendant has raised a general plea that the suit framed is not maintainable.
10. The learned Counsel for the plaintiffs/ respondents would correctly submit that the denial should not be evasive as per Order 8 Rules 3 and 4 of the Civil Procedure Code. There should have been a specific plea invoking
Section 69 of the Partnership Act.
11. Be that as it may, now then, in the grounds of appeal, as a legal plea, it has been raised that the suit itself is bad in view of
Section 69 of the Act and such a legal plea can be raised at any stage and it could be entertained.
12. However, I am of the considered opinion that instead of this Court while hearing the Civil Revision Petition as against the order allowing the I.A for impleading the plaintiffs and deciding the maintainability of the suit, could set aside the order passed by the trial Court in the said I.A and remit the matter back to the trial Court for deciding the legal issue relating to the maintainability of the suit. As such, direction is issued to frame a preliminary issue in accordance with Order 14 Rule 2(a) and (b) of the Code of Civil Procedure, as the legal plea raised is capable of cutting at the root of the case if it is found to be proper by the trial Court.
13. In the result, the Civil Revision Petition is disposed of with the following direction:
The order in I.A.No.1066 of 2005 in O.S.No.592 of 2004 on the file of the I Additional District Munsif, Nagercoil, is set aside and the I.A.No.1066 of 2005 is remitted back to the trial Court with the direction to frame a preliminary issue relating to the jurisdiction of the Court to entertain the suit and that too in the wake of the embargo as contemplated under
Section 69 of the Indian Partnership Act and accordingly, process the matter. Consequently, connected Miscellaneous Petition is closed. No costs.
sj/rsb To The I Additional District Munsif, Nagercoil.