Punjab-Haryana High Court
Chandimandir Stone Crusher vs Smt. Nirmala Devi And Anr. on 26 July, 2007
Equivalent citations: (2008)149PLR153, AIR 2007 (NOC) 2536 (P. & H.), 2008 AIHC (NOC) 242 (P. & H.)
JUDGMENT Vinod K. Sharma, J.
1. By way of this regular Second Appeal the challenge is to the judgments and decrees passed by the learned Courts below dismissing the suit filed by the plaintiff-appellant for permanent injunction.
2. The suit filed by the plaintiff-appellant was dismissed, firstly on the ground that the same was not competent in view of the provisions under Section 69(2) of the Partnership Act. The other ground for dismissal was that the plaintiff had concealed material facts from the Court and, therefore, was not entitled to discretionary relief of injunction. The plaintiff-appellant had failed to disclose the lease deed-as his period had already expired and he was unauthorized occupant of the property in dispute.
3. Mr. Harkesh Manuja, learned Counsel appearing on behalf of the appellant has challenged the finding recorded by the learned Courts below on the ground that no objection to maintainability of the suit was taken by the defendant-respondents in the written statement filed by them and, therefore, the objection with regard to maintainability of the suit being in violation of Section 69(2) of the Partnership Act stood waived. In support of this contention, the reliance was placed on the judgment of the Madras High Court in the case of V.V. Textiles v. Mahavir Fabrics 2001(1) Civil Court Cases 475. The Hon'ble Madras High Court in the said case was pleased to lay down that if no objection qua the maintainability of the suit in view of Section 69(2) of the Partnership Act is taken, the suit cannot be dismissed by the Court suo motu.
3.1 The learned Counsel for the appellant also placed reliance on the judgment of Kerala High Court in Popular Automobiles v. Eddy Current Controls India Ltd. 2003 (1) R.C.R. (Civil) 741. Learned Counsel for the appellant also referred to the judgment of Karnataka High Court in the case of Andavar Finance Corporation v. Murthy A.I.R. 2000 Karnataka 236. In all the judgments, it has been held that if the question of maintainability is not taken in the written statement, the Court is not competent to go into this matter and to decide the matter as to whether the suit was competent or not.
3.2 The learned Counsel for the appellant by placing reliance on the judgment of Hon'ble the Supreme Court in the case of Raptakos Brett and Co. Ltd. v. Ganesh Property contends that the provisions of Section 69(2) of the Partnership Act were not applicable in the present case as claim of the appellant was not based on a contract with the partnership firm as the lease-deed executing with the plaintiff-appellant had already expired and therefore, the provisions of Section 69(2) of the Partnership Act were not applicable.
3.3 Learned Counsel for the appellant challenged the finding of learned Courts below with regard to concealment of fact by contending that the plaintiff-appellant had clearly mentioned that the lease was for a period of 20 years and therefore, it could not be said that there was any concealment.
4. On the other hand, learned Counsel appearing for respondents placed reliance on the judgment of this Court in the case of New Bharat Chemical Industry v. Om Parkash to contend that the suit filed by the plaintiff was not competent and therefore, was rightly dismissed. Learned Counsel for the respondents further placed reliance on the judgment of Supreme Court in Raptakos Brett & Co. Ltd.'s case (supra) to contend that the suit as filed was not competent and was rightly dismissed as it was proved on record that the plaintiff-appellant was a partnership firm and by way of suit, the terms of lease were sought to be enforced. Though, the said lease had expired, still the plaintiff was seeking to enforce his right under the said lease and therefore, the suit was hit by the provisions of Section 69(2) of the Partnership Act.
5. After hearing learned Counsel for the parties and pursuing the record, I find that the plaintiff had failed to disclose that the lease had expired and he was seeking injunction on the basis of possession after the expiry of the lease period. Thus, there was concealment of fact as held by the learned Courts below. The suit was also not competent as the suit was filed with respect to the contract entered into with the partnership firm and thus the suit in absence of firm being registered was not competent in view of the provisions of 69(2) of Partnership Act.
6. It may also be noticed that it was an admitted case of the appellant-plaintiff that the period of lease has already expired and he had no legal right to continue with the possession of the property and therefore the learned courts were right in declining to grant discretionary relief of permanent injunction.
Consequently, there is no merit in this appeal.
Dismissed.