Gujarat High Court
Vinodbahi Manilal Vora vs Partner Of Dissolved Partnership Firm ... on 10 April, 2017
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SA/195/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 195 of 2016
With
CIVIL APPLICATION NO. 7769 of 2016
In
SECOND APPEAL NO. 195 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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VINODBAHI MANILAL VORA....Appellant(s)
Versus
PARTNER OF DISSOLVED PARTNERSHIP FIRM VINAY CERAMIC &
1....Respondent(s)
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Appearance:
MR. SHASWAT SHUKLA, ADVOCATE for MR SP MAJMUDAR, ADVOCATE
for the Appellant(s) No. 1
MR AMARNATH G ARYA, ADVOCATE for the Respondent(s) No. 1 - 2
HARNISH V. DARJI, ADVOCATE with MR BHUNESH C RUPERA,
ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 10/04/2017
ORAL JUDGMENT
1. The present Second Appeal is filed by the Appellant / Original Plaintiff under Section 100 of the Code of Civil Procedure being aggrieved with the judgment and order in Regular Civil Appeal No.57 of 2012 by the learned Additional District Judge, Surendranagar dated 26.11.2014 confirming the judgment and order passed in Regular Civil Suit No. 32 of 2008 by the learned Principal Senior Civil Judge, Surendranagar dated 31.8.2012 dismissing the Suit filed by the Plaintiff posing the substantial questions of law as follows:
(1) Whether both the courts below gravely erred by misreading the evidence on record of the case and, therefore, committed substantial error of law?
(2) Whether both the courts below committed grave error of law in holding that the suit is time barred?
(3) Whether both the courts below committed error in misreading and misinterpreting the documents at Exh.95 and Exh.96?
(4) Whether both the courts below have committed substantial error of law in not properly appreciating the provisions of Indian Partnership Act, 1932 with regard to dissolution of firm?
(5) Whether the courts below have committed error in not
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framing proper points of determination as per the provisions of Order 41 Rule 31 of the Code of Civil Procedure? (6) Whether the Courts below have committed error in not appreciating the fact that the accounts of firm were never settled? (7) Whether both the courts below committed a substantial error of law by misreading and misconstruing the deposition of the witness?
2. Heard learned Advocate Shri Shaswat Shukla for learned Advocate Shri S.P.Majmudar for the Appellants / Original Plaintiff and learned Advocate Shri Harnish Darji for learned Advocate Shri Bhunesh C. Rupera for the Respondents / Original Defendants.
3. Learned Advocate Shri Shaswat Shukla referred to the paper book as well as the R&P and tried to submit referring to the substantial question of law posed that both the courts below have committed an error in referring to the documents particularly Exh.95. He submitted that the first appellate court should have framed the issues under Order 41 Rule 31 of the Code of Civil Procedure. He submitted that the issues are not framed and that the judgment of the appellate court is erroneous. He has also referred to the paper- book and submitted that the accounts of the partnership firm are not settled. He referred to the deposition of the Respondent produced in the paper-book stating that it is admitted that the Page 3 of 10 HC-NIC Page 3 of 10 Created On Tue Aug 15 19:59:06 IST 2017 C/SA/195/2016 JUDGMENT accounts have not been settled. He therefore submitted that if the accounts are settled the partnership would not be dissolved and the issue with regard to the retirement is concocted. He has also referred to the aspect of lease deed and tried to submit that it was signed by the Appellant / Original Plaintiff and submitted that unless there is relinquishment of the right qua such property or the lease hold right, he cannot be deprived of. He therefore tried to add to the controversy to the issues which were not there to contend that it was not even the suit for the accounts, and his right in the property or the land given on lease by GIDC would be a separate and independent right. In support of his contention he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Sneh Gupta v. Devi Sarup and ors. reported in (2009) 6 SCC 194.
4. Learned Advocate Shri Harnish V. Darji for learned Advocate Shri Bhunesh Rupera for the Respondents has referred to the background of the facts and submitted that the partnership firm which is said to have dissolved in 1989 and the suit indeed was filed being Civil Suit No. 22 of 2004 which came to be withdrawn with liberty to file a fresh Suit. He submitted that thereafter Regular Civil Suit No. 32 of 2008 was preferred which came to be dismissed and against which the Appeal was preferred which was Page 4 of 10 HC-NIC Page 4 of 10 Created On Tue Aug 15 19:59:06 IST 2017 C/SA/195/2016 JUDGMENT also dismissed considering all the contentions raised. Learned Advocate Shri Darji has also referred to the relevant documents including his own notice produced on record and also referred to the evidence contending that it is an admitted fact that the Appellant / Original Plaintiff had sought dissolution and subsequently he had retired accepting the amount of Rs.51000/- in full and final settlement of the amount, for which the receipt is also produced on record at Exh.96. He therefore submitted that all these issues, which are sought to be raised are without any substance. Learned Advocate Shri Darji has submitted that the issues with regard to the right qua the lease of land granted by GIDC could not be raised in the Second Appeal. He also submitted that the judgment of the Hon'ble Apex Court could not have any application as the lease was granted to the firm and not to him in his individual capacity. Learned Advocate Shri Darji therefore submitted that in view of the concurrent findings of facts after appreciating the relevant material and evidence the present Second Appeal may not be entertained in view of the scope of Section 100 of the Code of Civil Procedure in Second Appeals.
5. In rejoinder, learned Advocate Shri Shaswat Shukla again referred to the background of the facts and strenuously submitted with regard to the right in the lease granted by GIDC contending that it Page 5 of 10 HC-NIC Page 5 of 10 Created On Tue Aug 15 19:59:06 IST 2017 C/SA/195/2016 JUDGMENT was an independent and individual right and again he referred to the averments in the plaint with regard to the aspect of limitation that the subsequent suit was filed for declaration. Learned Advocate Shri Shukla therefore submitted that considering the substantial question of law, the present Second Appeal may be admitted.
6. In view of the rival submissions, it is required to be considered whether the present Second Appeal deserve consideration.
7. As could be seen from the background of the facts, the Appellant / Original Plaintiff and the Respondent / Original Defendant are the brothers. Notice for dissolution was given by the Appellant / Original Plaintiff which has been placed on record and it is of 1989 and ultimately in view of the receipt Exh. 96 by which the Appellant / Original Plaintiff is said to have accepted in full and final settlement his share in the partnership would clinch the issue and it is too late to permit any such submission. It is required to be stated about the conduct of the Appellant / Original Plaintiff that earlier Civil Suit No. 22 of 2004 is filed in the year 2004 and withdrawn with liberty to file another Suit which is filed subsequently being Civil Suit No. 32 of 2008 i.e. after four years. In the meanwhile, it appears from the paper-book produced, he has addressed the letters and correspondence. However, there is a Page 6 of 10 HC-NIC Page 6 of 10 Created On Tue Aug 15 19:59:06 IST 2017 C/SA/195/2016 JUDGMENT retirement deed also which clearly referred to the aspect of retirement of the present Appellant / Original Plaintiff and the same is Exh.95 and the amount which he has received in full and final settlement is the receipt at Exh.96, which would clinch the issue, and any such contentions which are sought to be raised by learned Advocate Shri Shukla are only as and by way of an afterthought. Similarly, the contentions which have been raised with regard to the right in the land given by the GIDC to the firm on lease that the Appellant would have an independent right in the said land or leasehold right is thoroughly misconceived. The lease deed itself refers to the fact that it is given to the partnership firm coupled with the fact that the lease deed itself provides that any change or reconstitution would not make any difference, meaning thereby, reconstitution is permissible as no partner could claim individual right in his individual capacity. This itself is taken care thereof, and therefore, any such contentions which are sought to be raised are misconceived. The judgment of the Hon'ble Apex Court in case of Sneha Gupta v. Devi Sarup and Ors. (supra) referred to and relied upon by learned Advocate Shri Shukla is also without any application to the facts of the case. Paragraph 32 referred to the aspect of title to the property with reference to the provisions of Hindu Succession Act which has no relevance in the facts of the Page 7 of 10 HC-NIC Page 7 of 10 Created On Tue Aug 15 19:59:06 IST 2017 C/SA/195/2016 JUDGMENT case at all.
8. The submissions which have been made by learned Advocate Shri Shaswat Shukla referring to Order 41 Rule 31 that the issues are not framed by the first appellate court, which is necessary, referring to the judgment in case of Shah Keshavji Pashuji Vira (Decd.) v. Shah Mavji Pasu (decd.) reported in 2014 (0) GLHEL-HC 231554, is also required to be read in context and background of the statutory provisions which have been interpreted by the Hon'ble Apex Court in a judgment in case of Syeda Rahimunnisa v. Malan Bi (Dead) by L.R.s & Another reported in AIR 2016 SC 4653 wherein it has been observed:
".......................both the courts held on appreciation of evidence that the respondents were failed to establish their adverse possession over the suit-land qua State for want of adequate evidence. It being a question of fact, a finding on this question was binding on the High Court unless any error of law in such finding had been pointed out. It was not so pointed out."
Therefore, in view of these observations, it is clearly laid down that what is required to be considered that if the first appellate court has addressed all the relevant issues, it would be sufficient and therefore there cannot be said to be any error.
9. The Hon'ble Apex Court has laid down the broad guidelines in Page 8 of 10 HC-NIC Page 8 of 10 Created On Tue Aug 15 19:59:06 IST 2017 C/SA/195/2016 JUDGMENT catena of judicial pronouncements with regard to the scope of discretion under Section 100 of the Code of Civil Procedure after the amendment in the year 1976. A word of caution has been expressed that normally the High Court may not disturb the concurrent findings unless there is a substantial question of law involved. As discussed above, there is no question of law much less any substantial question of law which can be said to have been involved and the present Second Appeal therefore cannot be entertained. Moreover, the Hon'ble Apex Court in a judgment in case of Gurdev Kaur & Ors. V/s Kaki & Ors. reported in 2007 (1) SCC 546 has clearly observed;
"Now, High Courts can interfere thereunder only where substantial questions of law are involved and have been formulated in the memorandum of appeal - The amendment clearly indicates that the legislature never intended the second appeal to become a 'third trial on facts' or 'one more dice in the gamble'."
Therefore in view of these broad guidelines laid down by the Hon'ble Apex Court in catena of judicial pronouncements, the present Second Appeal cannot be entertained and deserve to be dismissed and accordingly stands dismissed.
10.Civil Application accordingly stands disposed of.
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