1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant- original plaintiff to quash and set aside the impugned judgment and order passed by the learned Joint District Judge, Bharuch, Rajpipla dated 29/03/2003 in Regular Civil Appeal No. 70/1985 by which the learned appellate Court has allowed the said appeal preferred by the respondents-original defendants by quashing and set aside the judgment and decree passed by the learned trial Court dated 27/03/1985 in Regular Civil Suit No. 100/1982.
2. The facts leading to the present Second Appeal in a nutshell are as under;
2.1. The appellant-original plaintiff instituted Regular Civil Suit No. 100/1982 against the respondents-original defendants in the Court of learned Civil Judge (Junior Division), Rajpipla for recovery of the suit premises alleging interalia that the suit premises was leased/rented to him and the respondents- original defendants have illegally locked the suit premises affecting the tenancy rights. The suit was resisted by the respondents-original defendants on number of grounds by filing the written statement at Exh. 18. The learned trial Court framed the issues at Exh. 44. Both the sides led the evidence, oral as well as documentary and on appreciation of evidence, the learned trial Court specifically held that the suit property was let to the appellant-original plaintiff and the respondents- original defendants have illegally put the lock on the suit premises and has dispossessed the appellant-original plaintiff illegally and forcibly and consequently the learned trial Court decreed the suit vide judgment and decree dated 27/03/1985. Being aggrieved and dissatisfied with the judgment and decree passed by the learned Civil Judge (Junior Division), Rajpipla dated 27/03/1985 in Regular Civil Suit No. 100/1982 the respondents-original defendants preferred Regular Civil Appeal No. 70/1985 and vide judgment and order dated 29/05/2003 the learned appellate Court has allowed the said appeal quashing and setting aside the judgment and decree passed by the learned trial Court and has non-suited the appellant- original plaintiff mainly on the ground that as the partnership firm was not a registered partnership firm the suit would be barred under Section 69(2) of the Indian Partnership Act. It appears that the learned appellate Court non-suited the appellant-original plaintiff under Section 69(2) of the Indian Partnership Act on its own as neither there was any pleading on the part of the respondents-original defendants that the suit was hit by Section 69(2) of the Indian Partnership Act and the learned trial Court also did not frame any issue on the said question. It appears that the learned appellate Court did not consider any other documentary evidence such as partnership deed etc. on the ground that the suit is hit by Section 69(2) of the Indian Partnership Act and the partnership firm is not registered one and consequently the learned appellate Court allowed the said appeal preferred by the respondents-original defendants quashing and setting aside the judgment and decree passed by the learned trial Court decreeing the suit. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned appellate Court in allowing the appeal preferred by the respondents-original defendants and quashing and setting aside the judgment and decree passed by the learned trial Court decreeing the suit the appellant-original plaintiff has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3. At the outset, it is required to be noted that while admitting the present Second Appeal the learned Single Judge has framed the following substantial question of law.
(i) Whether the first appellate Court was justified in non-suiting the plaintiff on the application of Section 69(2) of the Indian Partnership Act specially when the question was not raised in the pleadings and the trial Court did not cast any issue on the subject and no such application for amendment of the pleadings was ever made by the defendant before the lower appellate Court?
(ii) Whether the finding recorded by the first appellate Court in so far as those relate to creation of partnership are concerned, are perverse and are liable to be interfered with in the second appellate jurisdiction?
4. Today, when the present Second Appeal is taken up for final hearing and after the matter was argued at length, Shri Vimal Patel, learned advocate appearing on behalf of the respondents-original defendants has fairly conceded that the impugned judgment and order passed by the learned appellate Court non-suiting the appellant-original plaintiff on the ground that the suit was hit by Section 69(2) of the Indian Partnership Act cannot be sustained. He has fairly conceded that in the facts and circumstances of the case, there will not be any bar under Section 69(2) of the Indian Partnership Act, more particularly, in view of the fact that the suit was filed by the appellant-original plaintiff claiming tenancy in his individual capacity and not against the partners.
5. In view of the above and considering the fact that the entire decision of the learned appellate Court is based upon the bar under Section69(2) of the Indian Partnership Act and the learned appellate Court has not considered any other documentary evidences, there is a broad consensus between the learned advocates appearing on behalf of the respective parties to remand the matter to the learned appellate Court to decide and dispose of the same in accordance with law and on its own merits considering the documentary evidence and pass an appropriate order on appreciation of the entire evidence on record. The learned advocates appearing on behalf of the respective parties do not invite any further reasoned order while quashing and setting aside the impugned judgment and order passed by the learned appellate Court and remanding the matter to the learned appellate Court.
6. Under the circumstances, this Court is not passing any reasoned order while quashing and setting aside the impugned order passed by the learned appellate Court and remanding the matter to the learned appellate Court. However, the learned advocates appearing on behalf of the respective parties have requested to make suitable observation that this Court has not expressed any opinion on merits in favour of either parties and the learned appellate Court to decide and dispose of the same in accordance with law and on its own merits on appreciation of the entire evidence on record. In view of the above broad consensus between the learned advocates appearing on behalf of the respective parties recorded hereinabove, the present Second Appeal is allowed in part and the impugned judgment and order passed by the learned Joint District Judge, Bharuch, Rajpipla dated 29/03/2003 in Regular Civil Appeal No. 70/1985 is hereby quashed and set aside and without further expressing any opinion on merits in favour of either parties, the matter is remanded to the learned appellate Court to decide and dispose of the appeal in accordance with law and on its own merits afresh and on appreciation of entire evidence on record. The said exercise shall be completed within a period of six months from the date of receipt of the present order. All the parties concerned are directed to co operate for early disposal of the appeal within the stipulated time stated hereinabove. The learned appellate Court to decide and dispose of the appeal in accordance with law and on its own merits.
7. With this, the present Second Appeal is allowed to the aforesaid extent. No cost.
(M.R. SHAH, J.) siji