Karnataka High Court
Raghava Reddy And Associates vs People Charity Fund Or The People on 13 January, 2017
Equivalent citations: AIR 2017 KARNATAKA 174, 2017 (4) AKR 99
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
R.F.A NO. 102/2017 (INJ)
BETWEEN
1. RAGHAVA REDDY & ASSOCIATES,
A PARTNERSHIP FIRM REGISTERED
UNDER THE PROVISIONS OF THE
PARTNERSHIP ACT, 1932, HAVING
ONE OF ITS OFFICE AT ROYAL
RESIDENCY, G 1, BLOCK 1, NO 8,
BRUNTON ROAD, BANGALORE - 560 025
REP. BY ONE OF ITS PARTNERS
K. RAGHAVA REDDY.
2. K RAGHAVA REDDY & ASSOCIATES
A PARTNERSHIP FIRM REGISTERED
UNDER THE PROVISIONS OF THE
PARTNERSHIP ACT 1932, HAVING
ONE OF ITS OFFICE AT ROYAL
RESIDENCY, G 1, BLOCK 1, NO 8,
BRUNTON ROAD, BANGALORE - 560025
REP. BY ONE OF ITS PARTNERS
K. RAGHAVA REDDY.
3. SRI K. RAGHAVA REDDY,
S/O LATE SRI K. VENKATASUBBA REDDY,
AGED ABOUT 71 YEARS,
4. K. R. KUMAR REDDY
S/O SRI K. RAGHAVA REDDY,
AGED ABOUT 45 YEARS,
5. K. R. SRINIVAS REDDY,
S/O SRI K. RAGHAVA REDDY,
AGED ABOUT 35 YEARS,
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APPELLANTS 3 AND 5 ARE
R/AT " SHRAVAN", HIG NO. 536,
12TH CROSS, 5TH MAIN,
RMV 2ND STAGE,
BANGALORE - 560 094. ... APPELLANTS
(BY SRI ARUN KUMAR K., ADVOCATE)
AND
1. PEOPLE CHARITY FUND OR
THE PEOPLE CHARITY FUND,
A PUBLIC CHARITABLE TRUST
HAVING ITS OFFICE AT NO. 27/1,
COMMISSARIAT ROAD,
BANGALORE - 560 025.
2. A. RAMALINGAM,
S/O LATE SRI V. RAMALINGAM,
MAJOR, RESIDING AT NO.27/1,
COMMISSARIAT ROAD,
BANGALORE - 560 025. ... RESPONDENTS
(BY SRI ANAND KUMAR R., ADV. FOR
C/R-1 AND 2 [CP NO.25/17])
THIS RFA IS FILED U/O XLI RULE 1 R/W SEC.96
OF THE CODE OF CIVIL PROCEDURE, 1908 AGAINST
THE JUDGMENT AND DECREE DATED 02.01.2017
PASSED IN OS NO.8357/2008 ON THE FILE OF THE V
ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY, DISMISSING THE SUIT FOR PERPETUAL
INJUNCTION.
THIS RFA COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The appellants who are the plaintiffs before the Trial Court in OS No.8357/2008 have called in question the order passed by the Trial Court in rejecting their plaint and allowing the application filed under Order VII Rule 11(a) and (d) of CPC by the defendants, on the ground that the suit is not maintainable as the plaintiffs' Partnership Firm is not registered under the Indian Partnership Act. Secondly, the plaintiffs have no cause of action for filing the suit.
2. Before adverting to the rival contentions and submissions made by the learned counsels, it is just and necessary to have the brief factual matrix which are virtually admitted by both the parties particularly, with reference to the previous legal proceedings taken place between the parties.
3. The plaintiffs' claim is that they have entered into an agreement of sale dated 13.6.1984 for purchase of immoveable property and filed a suit for specific performance to enforce the said agreement in OS No.2495/1987 on 12.6.1987. After due contest, the 4 said suit came to be decreed on 21.2.1997. Aggrieved by the said judgment and decree, the defendants have preferred an appeal in RFA No.306/1997. The defendants/appellants in the said appeal have taken up the contention by way of amendment to the written statement that the suit itself is not maintainable as the suit has been filed by an un-registered partnership firm. Having allowed the said application for amendment, this court has referred the issue for the consideration of the Trial Court keeping the RFA pending. The Trial Court while considering the said issue has come to the conclusion that the suit is not maintainable in view of the non registration of the partnership firm u/s.69(2) of the Indian Partnership Act. As per the said findings given by the Trial Court, this court has concurred with the opinion and allowed RFA and consequently dismissed the suit of the plaintiff vide judgment dated 13.6.2008. Being aggrieved by the said judgment, passed by this court, the plaintiffs herein have preferred SLP CA before the Supreme Court in C.A. No.5122/2009. During the pendency of the said appeal before the Hon'ble Apex Court, the Hon'ble Apex Court 5 has directed both the parties to maintain statusquo and thereafter dismissed the said appeal on 25.10.2016.
4. In the mean time, when the matter was pending before the Hon'ble Apex Court, the plaintiffs have approached the Trial Court by way of a suit in OS No.8357/2008 (present suit) seeking the relief of permanent injunction restraining the defendants from interfering with the possession and enjoyment of the suit schedule property. The said suit was filed on 18.12.2008 stating that the cause of action for the said suit arose on 12.12.2008 as the defendants have made attempts to interfere with the peaceful possession and enjoyment of the suit schedule property and also claim that the cause of action arose on the date of execution of the agreement itself.
5. Interalia in the said suit, the plaintiffs have also sought for temporary injunction. After appearance of the defendants, the Trial Court has granted an order of statusquo pending disposal of the suit. The court after framing of issues, proceeded to record the evidence of the parties. During this juncture, it appears 6 the defendants have filed an application under Order VII Rule 11 (a) and (d) of CPC seeking rejection of the plaint.
6. The Trial Court has heard the application filed under Order VII Rule 11(a) and (d) of CPC and came to the conclusion once again that the suit is not maintainable in view of the non registration of the partnership firm reckoning the said cause of action from the date of agreement of sale entered into between the parties and further holding that there was no cause of action for the purpose of filing the suit.
7. It is also not disputed by the parties that after dismissal of the SLP before the Supreme Court on 25.10.2016 the plaintiffs have also filed another suit in OS No.7566/2016 for specific performance of the agreement to sell dated 13.6.1984 and the same is pending for consideration as of now.
8. The learned counsel for the appellants strenuously contends before this court that looking to the above said proceedings before the trial court, it goes without saying that the plaintiffs by virtue of the 7 General Power of Attorney and the agreement of sale executed by the defendants have acquired possession of the property by evicting the tenants and they continued to be in possession of the property since 1995. When the suit was filed earlier in the year 1984, they were not having possession over the property. They actually acquired the possession in the year 1995, by evicting the tenants of the defendants by virtue of the General Power of Attorney dated 13.6.1984. Therefore, it is submitted that plaintiffs have not pleaded for any injunction order but he sought for possession of the property from the defendants in his earlier suit. But when he took possession of the property in the year 1995 when the matter was pending before this Court in RFA No. 306/1997, at that time there was interference by the defendants which prompted the plaintiffs to file a separate suit in OS No.8357/2008. Therefore, he contended that though they acquired possession over the property by virtue of the General Power of Attorney, but in view of the agreement of sale executed on the same day and possession being not taken by the defendants but the possession continued with the 8 plaintiffs, therefore they have been in continuous legal possession over the property and therefore they filed the suit for injunction and the same is maintainable and the Trial Court is wrongly recorded its finding that the suit is not maintainable. Secondly, he contends that when the Civil Appeal No.5122/2009 was dismissed by the Hon'ble Apex Court in view of the principles laid down in a case reported in 2000 (3) SCC 250 between M/s. Haldi Ram Bhujiawala & Another Vs. M/s. Anand Kumar Deepak Kumar and Another, after curing the defect of non registration of the partnership firm, plaintiffs once again filed a suit for specific performance in O.S. No. 7566/2016 and the same is pending and the rights of the parties arising out of the agreement dated 13.6.1984 have to be adjudicated in the said suit. Further, he contends that till that point of time, the Trial Court cannot dispose of the matter under Order VII Rule 11(a) or (d) and therefore, the said order passed by the Trial Court is erroneous. He also contends that as on the date of filing of the suit in OS No.8357/2008, the partnership firm is registered in accordance with law. Therefore, the court should not have dismissed the suit 9 on this technical ground. Further, he contends that, the cause of action pleaded by the plaintiffs is from the date of agreement till the date of interference by the defendants, he contends that a single cause of action cannot be taken into consideration because the cause of action shall be considered on the basis of the bundle of facts on sequencewise pleaded by the parties. Therefore, at this stage taking into consideration the earliest cause of action trial Court should not have dismissed the suit. Therefore, he pleaded that the order of the Trial Court is erroneous and the same is liable to be set aside.
9. Per contra, the learned counsel for the respondents (defendants before the Trial Court) has strenuously contended that the cause of action pleaded by the plaintiffs is from the date of their agreement and on 12.12.2008 when the plaintiffs' alleged the interference by the defendants. The cause of action arose for the plaintiffs in the year 1987 itself, therefore no permanent injunction suit is maintainable as the previous suit has been dismissed for want of registration of the partnership firm, the said opinion expressed by 10 the Trial Court in OS No.2495/1987 is still holds good with reference to the cause of action. Therefore, the Trial Court is right in holding that there was no cause of action for the suit.
10. The learned counsel also contended that there are so many inconsistent pleadings with reference to the possession over the property and the execution of the agreement and the General Power of Attorney in favour of the plaintiffs, etc., Therefore, when the plaintiffs approached the court with inconsistent pleas, they are not entitled to maintain a suit. Hence, the Trial Court is also right in dismissing the suit. He further contends before the court that though the defendants have admitted that, the plaintiffs have acquired possession of the suit schedule property in the year 1995 by, evicting the tenants of the defendants but the said possession cannot be termed as a legal exclusive possession of the plaintiffs. At the most, it can only be said that it is the possession of the defendants which acquired by them on the basis of the General Power of Attorney executed by the defendants. Therefore, when they acquire possession by virtue of the power of 11 attorney, it is deemed that the defendants are in legal possession of the property. Therefore, plaintiffs cannot maintain a suit against a true owner for injunction. Therefore, he contends that the suit itself is not maintainable on these grounds.
11. In view of the above said rival contentions, the court has to consider -
"Whether the Trial Court has
committed any serious legal error in
dismissing the suit under Order VII Rule 11(a) & (d) of CPC.?"
12. Of course, Order VII Rule 11(a) & (d) of CPC empowers the court to reject the plaint at the threshold itself, if it is made out that there is no cause of action for the suit or the court has no jurisdiction to entertain the suit.
13. Now, coming to the first point which is in controversy between the parties, is whether suit is maintainable on the ground that the plaintiffs partnership firm has not been registered. 12
14. It is evident from the pleadings of the parties and materials on record that the original agreement of sale entered into between the defendants with one Raghava Reddy & Associates & Others which was admittedly not registered, but subsequently, the said partnership Firm was registered; one in the year 1991 and another in the year 2008. This particular aspect is evident from the records. The Trial Court order discloses that the said documents have been marked as Ex.P-28 i.e., the Certified Copy of Form- C issued by the District Registrar's Office, Bengaluru. The said document is also available before this court for perusal, which clearly establish the said fact that the said partnership firm was registered in the year 1991 and 2008, which are much prior to the filing of the suit in OS No.8357/2008. Technically speaking though defence has been taken by the respondents herein, that the agreement was entered into between Raghava Reddy and Associates, a Partnership Firm at that point of time, but later two firms in the name and style of Raghava Reddy Associates and K. Raghavareddy Associates are registered. The point, whether the agreement entered 13 into between Raghava Reddy and Associates would enure to the benefit of the appellants, has to be tested by oral and documentary evidence during the course of trial in OS No.7566/2016 and as well in OS No.8357/2008. At the threshold it cannot be decided. Therefore, in my opinion, the Trial Court is not right in holding that the plaintiff firm was not registered as on the date of the suit. Therefore the submission made by the learned counsel that the benefit of the subsequent registration will not enure to the plaintiffs herein, cannot be accepted.
15. Sofar as Section 69(2) of Indian Partnership Act is concerned, of course, it debarred un-registered firms from filing a suit. Nevertheless, it is crystal clear that the suit is one for injunction. Plaintiffs are not claiming any substantive right arising out of an agreement between the parties, a separate suit is already pending before the court in OS No.7566/2016. What is contemplated u/s.69(2) of the Act is, if any right is accrued on the basis of any contract between the parties, such contract cannot be enforced in the court of law by an un-registered partnership firm in view 14 of the bar u/s.69(2) of the said Act. Even otherwise as I have already referred to the two documents which are marked before the Trial Court Ex.P-28 establishes that as on the date of this suit for injunction, prima facie the Plaintiff's firms are registered. Therefore, technical deficiency or flaw has been removed by means of registration of the firms. When such being the case, the court should not gone back to the date of agreement so as to hold that as on the date of the agreement the partnership firm was not registered. It is the duty of the Court to examine only as on the date of the suit whether the partnership firm was registered or not, that ought to have been taken into consideration. Therefore, the court cannot imagine something which is not allowed under law or under the provisions of the Indian partnership firm.
16. Under the above said circumstances, I am of the opinion that the court should not have allowed the application under Order VII Rule 11(a) & (d) of CPC on the ground that the partnership firm was not registered as on the date of the suit. Therefore, this ground is not 15 tenable and the judgment of the trial Court is liable to be set aside.
17. The argument of the learned counsel that the plaintiffs are not in actual possession of the property and they cannot maintain a suit for injunction also cannot be accepted as he has already argued that the plaintiffs possession is as good as an agents possession on behalf of the defendants being the principal. This argument in my opinion is not acceptable because there are various types of possession recognized under the law.
18. In view of recognized principles of civil jurisprudence two types of possession can be gathered in this case. One is 'immediate' or direct possession and another is 'mediate' or 'direct' possession. If the owner of a property by means of any contract or agreement or by way of permission/licence or by any other mode recognised under law, permits any other person to, recover the possession of the property from the person who was in actual possession under the owner, then on the basis of such agreement or 16 permission, if a person acquires possession of the property he would get the actual or direct possession over the property i.e., recognized as immediate possession. However, the owner continues to be in dejure possession of the property as a mediate possessor of the property. There is a clear distinction between mediate and immediate possession sofar as third party is concerned. Mediate possession and immediate possession merges together to enforce the possessory rights against third parties. If the dispute arises between the mediate possessor and immediate possessor of the property then the actual possession over the property has to be taken into consideration.
19. On the touch stone of the above principle of law if it is tested, the transaction between the parties herein, as admitted by the defendants that, the defendants have also executed a General Power of Attorney on 13.6.1984 itself as on the date of agreement of sale executed in favour of the plaintiff. They have authorized the plaintiffs to recover possession of the suit schedule property from their tenants. Accordingly, in the year 1985, the plaintiffs 17 have acquired the actual possession over the property by evicting the tenants. So this clearly discloses that the plaintiffs have acquired immediate possession over the suit schedule property and they continued to be in actual possession of the property, though it can be safely said that the defendants also continued to be in legal deemed possession over the property i.e., mediate possession over the property and not actual possession. Therefore, in my opinion the argument of the learned counsel that the plaintiffs have not been in physical, actual possession over the property and therefore they cannot claim any right over the property, can not be accepted.
20. Under the above said facts and circumstances of the case, in my opinion the trial court should not have rejected the plaint under Order VII Rule 11(a) and (d) of CPC. Hence, the trial court has committed a serious legal error on fact and law. Under the above said facts and circumstances of the case the order impugned under the appeal deserves to be set aside and the matter deserves to be remitted, to deal with the suit in accordance with law.
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21. As could be seen from the entire proceedings between the parties, the statusquo order has been in force throughout even when the matter was pending before the Supreme Court in Civil Appeal No.5122/2009 which was disposed of on 25.10.2016, till that date it was in force. Further added to that, after appearance of the parties before the Trial Court, the Trial Court has also granted an order of statusquo till the disposal of the application under Order VII Rule 11(a) & (d) of CPC. Therefore in my opinion, the said order shall be continued till the disposal of the suit. Hence, in view of the above said reasons, I proceed to pass the following:
ORDER The appeal is allowed. The order passed by the Trial Court in OS No.8357/2008 dated 2.1.2017 is hereby set aside and the suit is restored on to the file of the Trial Court with a direction to continue the suit from the stage where it was left and dispose of the suit in accordance with law as early as possible, on merits. It is made clear that, whatever the observation made by this Court in the body of this order is only tentative. The trial Court without being influenced by this order shall take its own 19 decision on the appreciation of the case on merits.
The parties are directed to maintain status-quo till the disposal of the suit on merits.
The parties are directed to appear before the Trial Court on 13.2.2017.
Sd/-
JUDGE PL*