Andhra Pradesh High Court - Amravati
Chunduru Visalakshi, vs Chunduru Rajendra Prasad, on 22 April, 2022
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
&
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
CIVIL REVISION PETITION No.1173 of 2020
JUDGMENT:(per Hon‟ble Sri Justice Ravi Nath Tilhari) Heard Sri P. Rajasekhar, learned counsel for the petitioner, Sri Ravi Cheemalapati, learned counsel for the respondents and perused the material on record.
2. This civil revision petition under Article 227 of the Constitution of India has been filed by the petitioner/defendant in COS No. 6 of 2019 challenging the order dated 17.03.2020 passed in I.A.No. 223 of 2019, whereby the application for rejection of the plaint was dismissed by the Special Judge for trial and disposal of Commercial Disputes, Visakhapatnam.
3. The respondents/plaintiffs filed COS No.06 of 2019 against the defendant/petitioner for dissolution of the partnership firm and consequently to partition the properties belonging to the partnership firm described in the plaint schedule into two equal shares and put the plaintiffs in possession of their respective shares; also directing the defendant/petitioner to render the accounts for the period commencing from 01.04.2010 to 31.03.2018 and to pay a sum of Rs.40,00,000/- being the half share of the plaintiffs in the profits of the firm during the said period.
4. The case of the respondents/plaintiffs in the suit is that the 1st plaintiff and the defendant entered into a partnership and agreed to do business in the name and style of Hindustan Construction Chemicals and Allied Products for manufacturing and marketing construction Chemicals and Allied products. The 1st plaintiff and the defendant entered into a 2 CPK, J & RNT, J CRP.No.1173 of 2020 partnership deed on 26.02.2004, providing that the partnership shall be at will. The management of the firm shall be by both the partners. The 1st plaintiff and the defendant invested funds towards the share capital equally. The 1st plaintiff has contributed equally towards the working capital. The partnership was reconstituted by induction of the 2nd plaintiff as the third partner in the firm. Accordingly a reconstituted partnership deed was executed by the plaintiffs and the defendant on 08.09.2006. As per the terms of the reconstituted partnership deed the profit and loss in the firm shall be apportioned in the ratio of 50% to the defendant 45% to the 1st plaintiff and 5% to the 2nd plaintiff. All the three partners are the working partners empowered to represent the firm with equal rights. The business was running in profits. While so, certain disputes arose between the partners. The plaintiffs permitted the defendant to continue the business with an understanding to apportion the profit and loss in the proportion agreed. Mediation was held in the year 2010. It was resolved to dissolve the partnership. A dissolution deed dated 24.04.2010 was executed by the partners. The dissolution deed between the partners was however not acted upon. Since the year 2010 the defendant alone is running the business without intervention of the plaintiffs. The defendant did not furnish the accounts to the plaintiffs and seek their approval. The defendant is misconducting the management of the business to the detriment of the firm. The plaintiffs got issued a Lawyers notice demanding the defendant to dissolve the partnership and for furnishing the accounts of the firm for the period commencing from 1.4.2010 to 31.3.2017. However, the defendant neither delivered possession of „B‟ schedule property nor registered dissolution deed with Registrar Firms. As such, the dissolution deed dated 24.4.2010 was not acted upon and is 3 CPK, J & RNT, J CRP.No.1173 of 2020 non-est in the eye of law. Since a partnership was not legally dissolved, the plaintiffs continued to be the partners in the partnership firm. The plaintiffs are not interested in continuing the firm. The defendant has not been submitting the accounts ever since 2010 in spite of the demands made by the plaintiffs but is liable to furnish the accounts to the remaining partners. The defendant failed in obligation to furnish the accounts. The plaintiffs seek the interference of the Court to direct the defendants for rendition of the accounts for the period 2010-11 to 2017- 18 i.e., for a period of 8 years.
5. The petitioner/defendant filed an application under Order 7 Rule 11 CPC praying the Court to reject the plaint, on 30.09.2019. In support of said I.A.No. 223 of 2019 the petitioner/defendant filed affidavit submitting that the suit is not maintainable under law and there is no cause of action to file the suit in the forum they have chosen. The partnership deed dated 26.02.2004 and the reconstitution of the firm dated 08.09.2006 clearly spell out that if any dispute arises out of the partnership, shall be resolved on applying the provisions under Arbitration Act as per clause-18 of the partnership deed dt.26.2.2004 and clause-18 of the reconstituted partnership deed dt.8.9.2006. Giving a go-bye to the terms of contract, the plaintiffs opted to file the suit without exhausting the remedies provided under the Arbitration Act. Apart from the said fact, the suit is liable to be dismissed in limini even without conducting any trial and enquiry. Reading of the totality of the plaint, the plaintiffs have not averred and pleaded that the disputes referred in the proceedings constitute a commercial dispute. In the absence of pleadings, the Court has no territorial jurisdiction to entertain the proceedings. The plaintiffs have to aver and plead through his pleadings, as defined in Section -2 (1) 4 CPK, J & RNT, J CRP.No.1173 of 2020
(c) of the Commercial Courts Act, that the dispute as narrated by the plaintiffs constitutes a commercial dispute. Since the partnership is dissolved by mutual consent in accordance with the provisions of Section 40 of Partnership Act by all the parties on 24.4.2010, the plaintiffs being the retired partners of the firm, are not entitled to file any suit seeking for rendition of accounts and for dissolution. The proceedings are barred by limitation under Article 113 of the Limitation Act. The plaintiffs have no cause of action to file the suit and the cause of action as narrated by the plaintiffs that the plaintiffs leased out a part of the property to Smart Wash Care is a created cause of action for the purposes of the suit. The leasing out of a part of the property cannot be a cause of action for filing of the proceedings before the Court. If leasing out the property to anybody, creates a cause of action, the cause of action arose only in 2011 and the suit is filed beyond the period of limitation which is liable to be dismissed. The defendant prayed the Court to reject the plaint with costs, applying the provisions of Order 7 Rule 11 CPC.
6. The plaintiff/respondent herein, filed counter to the application under Order VII Rule 11 CPC, inter alia, submitting that dissolution deed was not acted upon which became ineffective. The issue regarding the dissolution deed is factual in nature and is to be decided based upon the evidence adduced by the parties. The objection with respect to arbitration agreement between the parties is not maintainable under Order VII Rule 11 CPC. In any case, the plaint cannot be rejected on the ground of existence of arbitration clause in the partnership deed. The partnership continued in all aspects and as such, the plea that the suit was barred by limitation cannot be a ground for rejection of a plaint which can be appreciated only during trial. The partnership deed dated 26.02.2004 was 5 CPK, J & RNT, J CRP.No.1173 of 2020 registered with the Registrar of Firms in the name of "Hindustan Construction Chemicals and Allied Products, Visakhapatnam". The reconstituted firm was also entered in the Office of the Registrar of Firms, but the said dissolution of firm was not registered, as such, the dissolution deed did not take place at any point of time and the plaintiffs continued to be partners of the firm and they cannot be termed as retired partners. The defence of the defendant cannot be relied upon for the purposes of rejecting a plaint. The contentions and issues arising out of factual aspects and application of law there to cannot be decided at the stage of rejection of plaint but can only be decided after the trial is concluded.
7. The petitioner/defendant filed written statement on 25.11.2019.
8. However, any application under Section 8 of the Arbitration and Conciliation Act, 1996 was not filed by the defendant/petitioner.
9. The learned Court of Special Judge for trial and disposal of Commercial Disputes, Visakhapatnam by order under challenge dated 17.03.2020 dismissed the application under Order 7 Rule 11 CPC.
10. Learned Court below held that the question of limitation involved, is a mixed question of fact and law in the present case and therefore, to decide the said aspect, the Court was required to go into the merits and demerits of the suit and that was not the stage to decide whether the dissolution deed was or was not acted upon. Whether the respondents/plaintiffs have retired from the partnership firm as per the dissolution deed dated 24.04.2010 as alleged by the petitioner/defendant should be decided in the main suit after both parties adducing their respective evidence. It further held that in any application filed under Order 7 Rule 11 CPC the Court has to see whether the petitioner/defendant has established the grounds as contemplated under 6 CPK, J & RNT, J CRP.No.1173 of 2020 Order 7 Rule 11 CPC for rejection of the plaint or not, on the averments of the plaint alone. The learned Court below recorded that the averments in the plaint prima facie disclosed the partnership between the plaintiffs/respondents and the defendant/petitioner and that the dissolution deed dated 24.04.2010 was not acted upon by the petitioner/defendant, the partnership continued to exist and as such as per the plaint averments the suit for dissolution of partnership and rendition of accounts and partition of accounts was not barred by limitation on the face of the plaint. The learned Court below also held that as seen from para-4 of the plaint at page-7, cause of action was categorically disclosed.
11. With respect to the plea of the petitioner/defendant, under Section 8 of the Arbitration and Conciliation Act, the learned Court below held that the said plea was not tenable as the petitioner/defendant did not avail the remedy by filing a petition/application under Section 8 of the Arbitration and Conciliation Act, 1996.
12. Learned counsel for the petitioner/defendant submitted that the application filed by the petitioner/defendant was a composite application under Order 7 Rule 11 CPC and under Section 8 of the Arbitration and Conciliation Act, 1996. He submitted that the partnership deed as also the reconstituted partnership deed contained arbitration clause in clause-18 thereof which provides that "any dispute between the partners hereto shall be referred to arbitration mutually accepted as governed by the Indian Arbitration Act any such decision shall be binding and conclusive among the partners". He submitted that in view thereof the dispute between the partners arising out of the maintenance and management of the firm can be referred to an arbitration mutually 7 CPK, J & RNT, J CRP.No.1173 of 2020 accepted as governed by Indian Arbitration Act, and the suit is barred. He further submitted that merely because of non-filing of the arbitration agreement or certified copy thereof along with the application under Order VII Rule 11 CPC, it cannot be treated as not a composite application.
13. Learned counsel for the petitioner further submitted that the Court below erred in holding that the issue of limitation is a mixed question of fact and law, ignoring the fact that when the firm stood dissolved, the suit for rendition of accounts shall be filed in three years from the date of dissolution under Article 5 of the Limitation Act and hence the suit was ex facie barred by law, and there was no pleading in terms of Order VII Rule 6 CPC i.e., pleading the grounds of exemption from limitation law.
14. Learned counsel for the petitioner further submitted that the plaint was not as per Form-49 in Appendix II of CPC and it did not contain the essential averments, as in Form - 49, so as to disclose cause of action.
15. Sri P. Rajsekhar, learned counsel for the petitioner, relied upon Vidya Drolia v. Durga Trading Corporation1, Ananthesh Bhakta v. Nayana S. Bhakta2, Syed Irfan Sulaiman v. M/s. New Amma Hospital, Saroornagar3, Church of Christ Charitable Trust and Educational Charitable Society, rep. by its Chairman v. M/s. Ponniamman Educational Trust rep. by its Chairperson/Managing Trustee4, Raghwendra Sharan Singh v. Ram Prasanna Singh 1 (2021) 2 SCC 1 2 AIR 2016 SC 5359 : (2017) 5 SCC 185 3 AIR 2017 Hyderabad 18 4 AIR 2012 SC 3912 : (2012) 8 SCC 706 8 CPK, J & RNT, J CRP.No.1173 of 2020 (ded) By Lrs.5 and Ketineni Chandrasekhar Rao v. Boppana Seshagiri Rao6 in support of his submissions.
16. Learned counsel for the respondents/plaintiffs submitted that while considering the application under Order 7 Rule 11 CPC, only the plaint averments are to be read and the defence case is not to be considered. As per the plaint, the dissolution deed dated 24.04.2010 was not acted upon. The defendant failed to act in terms of the dissolution deed and continued the business in the name of the firm. On 03.10.2018, the plaintiffs issued lawyer‟s notice to the defendant which was replied on 28.11.2018. There was cause of action which was disclosed in the plaint. The plaint contained necessary averments as per Form 49-A. The suit was not barred by any law of limitation and consequently the provisions of Order 7 Rule 6 CPC are not attracted.
17. Learned counsel for the respondents/plaintiffs submitted that plea of arbitration cannot be taken to reject the plaint under Order 7 Rule 11 CPC. The arbitration clause does not come in the way of filing of suit.
18. The learned counsel for the plaintiffs/respondents further submitted that the petitioner/defendant filed written statement on 25.11.2019 i.e., on the last date of statutory period of 120 days, but did not seek the remedy by filing a petition as contemplated under Section 8 of the Arbitration and Conciliation Act, 1996 prior to filing of the written statement. The application under Order 7 rule 11 CPC is not under Section 8 of the Arbitration and Conciliation Act, and it can not be considered as a composite application, under Section 8 of the Arbitration Act, 1996, as well.
5 AIR Online 2019 SC 136 6 2017 (1) ALT 715 (D.B) 9 CPK, J & RNT, J CRP.No.1173 of 2020
19. Sri Ravi Cheemalapati, learned counsel for the respondents/plaintiffs has placed reliance on M. Shankara Reddy and another v. Amara Ramakoteswara Rao and 3 others7.
20. We have considered the submissions advanced by the learned counsels for the parties and perused the material on record.
21. In view of the submissions advanced, following points arise for our consideration:
i. "Whether the plaint deserved rejection under Order 7 Rule 11 CPC?"
ii. "Whether the impugned order refusing to reject the plaint deserves interference?"
22. We proceed to first consider the legal provisions and the legal position on Order 7 Rule 11 CPC and if the suit was barred by any law in particular by law of limitation.
23. Order VII Rule 11 CPC reads as under:
"11. Rejection of plaint.- The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;7
2017 LR (Hyd) 521 : 2017 SCC Online Hyd. 426 10 CPK, J & RNT, J CRP.No.1173 of 2020
(f) where the plaintiff fails comply with the provision of Rule 9. Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff."
24. In Church of Christ Charitable Trust and Educational Charitable Society (supra) the Hon‟ble Apex Court held that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the Court, insufficiently stamped and not rectified within the time fixed by the Court, barred by any law, failed to enclose the required copies and the plaintiff failed to comply with the provisions of Rule 9, the Court has no other option except to reject the same. The power of rejection of plaint under Order VII Rule 11 CPC can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial, however, for purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order VII CPC, the averments only in the plaint are germane. The pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. It is the duty of the Court to scrutinize the averments/pleas in the plaint as a whole.
25. Paragraphs - 9, 10 and 11 of the judgment in Church of Christ Charitable Trust (supra) are reproduced as under:
"Points for consideration
9. The points for consideration in this appeal are:
11 CPK, J & RNT, J CRP.No.1173 of 2020
(a) Whether the learned Single Judge of the High Court was justified in ordering rejection of the plaint insofar as the first defendant (the appellant herein) is concerned? and
(b) Whether the Division Bench of the High Court was right in reversing the said decision?
10. Since the appellant herein, as the first defendant before the trial Judge, filed application under Order 7 Rule 11 of the Code for rejection of the plaint on the ground that it does not show any cause of action against him, at the foremost, it is useful to refer the relevant provision:
Order 7 Rule 11 CPC
"11.Rejection of plaint.--The plaint shall be rejected in the following cases--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of Rule 9:
Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp paper shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp paper, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff."
It is clear from the above that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the court, insufficiently stamped and not rectified within the time fixed by the court, barred by any law, failed to enclose the required copies and the plaintiff fails to comply with the provisions of Rule 9, the court has no other option except to reject the same. A reading of the above provision also makes it clear that power
12 CPK, J & RNT, J CRP.No.1173 of 2020 under Order 7 Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial.
11. This position was explained by this Court in Saleem Bhai v. State of Maharashtra [(2003) 1 SCC 557] , in which, while considering Order 7 Rule 11 of the Code, it was held as under: (SCC p. 560, para 9) "9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit--before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court." It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [(2006) 3 SCC 100] .
26. In the case of Madanuri Sri Rama Chandra Murthy v. Syed Jalal8 the Hon‟ble Apex Court held that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole 8 (2017) 13 SCC 174 13 CPK, J & RNT, J CRP.No.1173 of 2020 on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order VII Rule 11 CPC can be exercised.
27. In Urvashiben v. Krishnakant Manuprasad Trivedi9 the Hon‟ble Apex Court held that the merits and demerits of the matter cannot be gone into while deciding an application filed under Order VII Rule 11 CPC. It is fairly well settled that at this stage only averments in the plaint are to be looked into.
28. In Urvashiben (supra) plea was taken that the suit was barred by limitation. The Hon‟ble Apex Court held that under Article 54 of the Limitation Act, when the time is not fixed in the agreement, the limitation of three years to file a suit for specific performance would begin when the plaintiff has noticed that the defendant has refused the performance of the agreement. This date of notice is the matter of trial on the basis of evidence and consequently where the time for performance of the contract is not fixed, the question of limitation is not a pure question of law but it is a mixed question of fact and law, which cannot be gone into at the stage under Order VII Rule 11 CPC.
29. It is apt to refer paragraphs - 15, 16, 18 and 19 of Urvashiben (supra) as under:
"15. It is fairly well settled that, so far as the issue of limitation is concerned, it is a mixed question of fact and law. It is true that limitation can be the ground for rejection of plaint in exercise of powers under Order 7 Rule 11(d) CPC. Equally, it is well settled that for the purpose of deciding application filed under Order 7 Rule 11 only averments stated in the plaint alone can be looked into, merits and demerits of the matter and the allegations by the parties cannot be gone into. Article 54 of the Limitation Act, 1963 prescribes the limitation of three years, for suits for specific performance. The said Article reads as under:9
(2019) 13 SCC 372 14 CPK, J & RNT, J CRP.No.1173 of 2020 Description of suit Period of Time from which period begins to run limitation * * *
54. For specific 3 years The date fixed for the performance, or, if no performance of a such date is fixed, when the plaintiff has contract notice that performance is refused.
From a reading of the aforesaid Article, it is clear that when the date is fixed for performance, limitation is three years from such date. If no such date is fixed, the period of three years is to be computed from the date when the plaintiff, has notice of refusal. When rejection of plaint is sought in an application filed under Order 7 Rule 11, same is to be considered from the facts of each case, looking at the averments made in the plaint, for the purpose of adjudicating such application.
16. As averred in the plaint, it is the case of the plaintiff that even after payment of the entire consideration amount registration of the document was not made and prolonged on some grounds and ultimately when he had visited the site on 25-5-2017 he had come to know that the same land was sold to third parties and the appellants have refused performance of contract. In such event, it is a matter for trial to record correctness or otherwise of such allegation made in the plaint. In the suits for specific performance falling in the second limb of the Article, period of three years is to be counted from the date when it had come to the notice of the plaintiff that performance is refused by the defendants. For the purpose of cause of action and limitation when it is pleaded that when he had visited the site on 25-5-2017 he had come to know that the sale was made in favour of third parties and the appellants have refused to execute the sale deed in which event same is a case for adjudication after trial but not a case for rejection of plaint under Order 7 Rule 11(d) CPC.
18. On the other hand, in the judgment in Gunwantbhai [Gunwantbhai Mulchand Shah v. Anton Elis Farel, (2006) 3 SCC 634] this Court has held as under: (SCC p. 639, para 8) "8. We may straightaway say that the manner in which the question of limitation has been dealt with by the courts below is highly unsatisfactory. It was rightly noticed that the suit was governed by Article 54 of the Limitation Act, 1963. Then, the enquiry should have been, first, whether any time was fixed for performance in the agreement for sale, and if it was so fixed, to hold that a suit filed beyond three years of the date was barred by limitation unless any case of extension was pleaded and established. But in a case where no time for performance was fixed, the court had to find the date on which the plaintiff had notice that the performance was refused and on finding that date, 15 CPK, J & RNT, J CRP.No.1173 of 2020 to see whether the suit was filed within three years thereof. We have explained the position in the recent decision in R.K. Parvatharaj Gupta v. K.C. Jayadeva Reddy [R.K. Parvatharaj Gupta v. K.C. Jayadeva Reddy, (2006) 2 SCC 428]. In the case on hand, there is no dispute that no date for performance is fixed in the agreement and if so, the suit could be held to be barred by limitation only on a finding that the plaintiffs had notice that the defendants were refusing performance of the agreement. In a case of that nature normally, the question of limitation could be decided only after taking evidence and recording a finding as to the date on which the plaintiff had such notice. We are not unmindful of the fact that a statement appears to have been filed on behalf of the plaintiffs that they did not want to lead any evidence. The defendants, of course, took the stand that they also did not want to lead any evidence. As we see it, the trial court should have insisted on the parties leading evidence on this question or the court ought to have postponed the consideration of the issue of limitation along with the other issues arising in the suit, after a trial." In the aforesaid case, it is clearly held that in cases falling in second limb of Article 54 finding can be recorded only after recording evidence. The said view expressed by this Court supports the case of the respondent-plaintiff.
19. In the judgment in Rathnavathi [Rathnavathi v. Kavita Ganashamdas, (2015) 5 SCC 223 : (2015) 2 SCC (Civ) 736] in paras 42 and 43 it was clearly held that when the time is not fixed in the agreement, the limitation of three years to file a suit for specific performance would begin when the plaintiff has noticed that the defendant has refused the performance of the agreement. In the judgment in Ahmadsahab Abdul Mulla (2) v. Bibijan [Ahmadsahab Abdul Mulla (2) v. Bibijan, (2009) 5 SCC 462 : (2009) 2 SCC (Civ) 555] while interpreting Article 54 of the Limitation Act, it is held that the words "date fixed for the performance" is a crystallised notion. The second part "time from which period begins to run" refers to a case where no such date is fixed. In BalasariaConstruction (P) Ltd. v. Hanuman Seva Trust [Balasaria Construction (P) Ltd. v. Hanuman Seva Trust, (2006) 5 SCC 658] and Chhotanben [Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar, (2018) 6 SCC 422 : (2018) 3 SCC (Civ) 524] this Court clearly held that issue of limitation, being a mixed question of fact and law, is to be decided only after evidence is adduced."
16 CPK, J & RNT, J CRP.No.1173 of 2020
30. Recently, in the case of Biswanath Banik and another v. Sulanga Bose and others10 the Hon‟ble Apex Court held that so far as the issue whether the suit can be said to be barred by limitation or not, at the stage of consideration of application filed under Order VII Rule 11 CPC, what is required to be considered is the averments in the plaint. Only in a case where on the face of the plaint, it is seen that the suit is barred by limitation, then only a plaint can be rejected under Order VII Rule 11 (d) CPC on the ground of limitation.
31. Paragraph - 16 of Biswanath Banik (supra) is reproduced as under:
"16. Now, so far as the issue whether the suit can be said to be barred by limitation or not, at this stage, what is required to be considered is the averments in the plaint. Only in a case where on the face of it, it is seen that the suit is barred by limitation, then and then only a plaint can be rejected under Order VII Rule 11(d) CPC on the ground of limitation. At this stage what is required to be considered is the averments in the plaint. For the aforesaid purpose, the Court has to consider and read the averments in the plaint as a whole. As observed and held by this Court in the case of Ram Prakash Gupta v. Rajiv Kumar Gupta, (2007) 10 SCC 59, rejection of a plaint under Order VII Rule 11(d) CPC by reading only few lines and passages and ignoring the other relevant parts of the plaint is impermissible. In the said decision, in paragraph 21, it is observed and held as under:--
"21. As observed earlier, before passing an order in an application filed for rejection of the plaint under Order 7 Rule 11(d), it is but proper to verify the entire plaint averments. The abovementioned materials clearly show that the decree passed in Suit No. 183 of 1974 came to the knowledge of the plaintiff in the year 1986, when Suit No. 424 of 1989 titled Assema Architect v. Ram Prakash was filed in which a copy of the earlier decree was placed on record and thereafter he took steps at the earliest and filed the suit for declaration and in the alternative for possession. It is not in dispute that as per Article 59 of the Limitation Act, 1963, a suit ought to have been filed within a 10 2022 SCC Online SC 314 17 CPK, J & RNT, J CRP.No.1173 of 2020 period of three years from the date of the knowledge. The knowledge mentioned in the plaint cannot be termed as inadequate and incomplete as observed by the High Court. While deciding the application under Order 7 Rule 11, few lines or passage should not be read in isolation and the pleadings have to be read as a whole to ascertain its true import. We are of the view that both the trial court as well as the High Court failed to advert to the relevant averments as stated in the plaint."
32. Learned counsel for the petitioner has placed reliance in Raghwendra Sharan Singh (supra), to contend that the plaint can be rejected in exercise of powers under Order 7 Rule 11 (d) CPC on the ground of limitation, if the suit is barred by law of limitation. In that case, the application under Order 7 Rule 11 CPC was rejected by the Court after holding that the question with respect to the limitation is a mixed question of law and facts, which can be decided only after the parties lead the evidence. The Hon‟ble Apex Court, reiterated that in cases of Sham Lal alia Kuldip v Sanjeev Kumar {(2009) 12 SCC 454}, N. V. Srinivas Murthy v. Mariyamma (dead) by proposed Lrs. {AIR 2005 SC 2897} and Ram Prakash Gupta v. Rajiv Kumar Gupta {(2007) 10 SCC 59} it was held that considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11 (d) CPC. There is no dispute on such proposition of law that a suit can be dismissed under Order 7 Rule 11 CPC on the ground of law of limitation, but the suit must appear on the face of the averments in the plaint as barred by limitation.
33. After going into the plaint averments, it cannot be said that the suit is barred by limitation on the face of it. In the plaint, it has been specifically stated that the Deed of Dissolution of partnership was not acted upon, the partnership continued and the firm carried out its 18 CPK, J & RNT, J CRP.No.1173 of 2020 business; the defendant did not register the partition deed and did not deliver the possession of the land to the plaintiffs. Since the year 2010 the partnership business was running in profits, but the defendant did not furnish the accounts to the plaintiff and seek their approval. The dissolution deed was non est. The defendant was mis-conducting the management of the business to the detriment of the firm as a part of the property was let out to the third party without knowledge and consent of the plaintiff; and therefore, the suit for rendition of the accounts and for dissolution of the partnership was within limitation. On the averments in the plaint it cannot be said that the suit is barred by limitation on the face of the plaint. The plea of the defendant that the suit is barred by limitation, requires consideration during trial after leading of evidence and is dependent upon the finding recorded on the point whether the partnership is dissolved in the year 2010 or not. Consequently, it cannot be said that on the averments made in the plaint, the suit is barred by limitation. The plea which is to be considered on the basis of evidence during trial, may be a plea of limitation, on such a plea, the plaint cannot be rejected under Order VII Rule 11 CPC.
34. We are of the considered view that in the present case the answer to the question whether the suit is barred by limitation or not depends upon the answer to the question whether the partnership is dissolved pursuant to the Deed of Dissolution or notwithstanding the Deed of Dissolution the same was not given effect to and the firm continued its business. The question of limitation in the present case is not a pure question of law but a mixed question of law and facts which cannot be considered at this stage of rejection of the plaint under Order VII Rule 11 CPC.
19 CPK, J & RNT, J CRP.No.1173 of 2020
35. We do not find any illegality in the order passed by the learned Court below in not rejecting the plaint under Order VII Rule 11 CPC on the defendant‟s plea that the suit was barred by limitation.
36. The next submission of the learned counsel for the petitioner is based on Section 8 of the Arbitration and Conciliation Act, 1996. We now proceed to consider the same.
37. Section 8 of the Arbitration and Conciliation Act, 1996 reads as under:
"8. Power to refer parties to arbitration where there is an arbitration agreement.--
(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof;
{Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court} (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made."
20 CPK, J & RNT, J CRP.No.1173 of 2020
38. In Rashtriya Ispat Nigam Ltd. V. Verma Transport Co.11 The Hon‟ble Apex Court held that Section 8 of the Arbitration and Conciliation Act confers a power on the judicial authority. He must refer the dispute which is the subject matter of an arbitration agreement if an action is pending before him, subject to the fulfilment of the conditions precedent. The said power, however, shall be exercised if a party so applies not later than when submitting his first statement on the substance of the dispute.
39. Paragraph - 19 of Rashtriya Ispat Nigam Ltd. (supra) is reproduced as under:
"19. Section 8 confers a power on the judicial authority. He must refer the dispute which is the subject-matter of an arbitration agreement if an action is pending before him, subject to the fulfilment of the conditions precedent. The said power, however, shall be exercised if a party so applies not later than when submitting his first statement on the substance of the dispute."
40. In M. Shankara Reddy (supra) the Division Bench of this Court held that when a statue prescribes or requires a thing to be done in a particular manner, it should be done in that manner or not at all. The popular principle of law is settled in the very old case of Taylor v. Taylor (1876) Ch.D 426 which is cited with approval by the Hon‟ble Supreme Court of India in Shiv Kumar Chandha v. Municipal Corporation of Delhi 1993 SCC (3) 161 and also in Ram Chandra Keshav Adke v. Govind Joyti (1975) 1 SCC 559. An application under Section 8 of the Act is an application that should be made in a particular manner and at particular time. The application should be accompanied by the original arbitration agreement or a certified copy thereof under Section 8 (2) of the Act. Even the Andhra Pradesh Arbitration Rules, 2000 as framed by this Court 11 (2006) 7 SCC 275 21 CPK, J & RNT, J CRP.No.1173 of 2020 require that every application under Section 8 of the Act shall be duly signed and verified. It shall state the provision of law under which it is filed and contain a statement as described in Rule 4 of the Rules. Rule 4 (2) also states a certified copy of the arbitration agreement and certified copies of the relevant document shall be annexed to every such application. Otherwise, it was held that, the application which was filed was not under Section 8 of the Act. It was only an application under Order VII Rule 11 CPC seeking rejection of the plaint on the ground that the arbitration clause bars the suit. This Court further held that Section 8 of the Act only empowers the Court to refer the parties to arbitration but does not give the Court an option to reject a plaint. Order VII Rule 11 CPC empowers the Court to reject the plaint, when there is bar to the suit because of any law. Section 8 of the Act was not a bar to a Civil Court. It provides an alternative to a defendant against whom a civil suit is initiated to submit to the jurisdiction of the civil Court or to make an appropriate application at appropriate time under Section 8 of the Act seeking an order to refer the parties to arbitration. The powers under Section 8 of the Act cannot be considered as a bar to the civil suit to entertain under Order VII Rule 11 CPC.
41. In the present case, any application under Section 8 of the Arbitration and Conciliation Act, 1996 was not filed at the appropriate stage i.e., till the time of submission of the first statement i.e., the written statement. The submission of the learned counsel for the petitioner that the application which was filed is a composite application under Order VII Rule 11 CPC and Section 8 of the Arbitration and Conciliation Act, cannot be accepted, as this is simply an application for rejection of the plaint under Order VII Rule 11 CPC in which one of the grounds taken by the 22 CPK, J & RNT, J CRP.No.1173 of 2020 defendant to reject the plaint is that there was an arbitration clause in the partnership deed i.e., clause - 18, and in view thereof, the plaint should be rejected, without making any prayer in terms of Section 8 of the Arbitration and Conciliation Act to refer the parties to arbitration. In Rashtriya Ispat Nigam Ltd. (supra), the Hon‟ble Apex Court held that power under Section 8 of the Arbitration and Conciliation Act shall be exercised, if a party so applies.
42. The aforesaid application also did not comply with the mandatory requirements under Section 8 (2) of the Arbitration and Conciliation Act. In Ananthesh Bhakta (supra), upon which reliance is placed by the learned counsel for the petitioner to contend that an application under Section 8 of the Arbitration and Conciliation Act could not be rejected if it is not accompanied by the original arbitration agreement or a duly certified copy thereof, it has been held that Section 8 (2) of the Act has to be interpreted to mean that the Court shall not consider any application filed by the party under Section 8 (1) of the Act unless it is accompanied by original arbitration agreement or duly certified copy thereof. The filing of the application without such original or certified copy of the arbitration agreement, but bringing original arbitration agreement or the certified copy thereof on record at the time when the Court is considering the application shall not entail rejection of the application under Section 8 (2) of the Act.
43. The submission of the learned counsel for the petitioner based on the law laid down in Ananthesh Bhakta (supra), as aforesaid, may be correct, but the same is not applicable as in the present case. Any application under Section 8 of the Arbitration and Conciliation Act, 1996 was not filed and the application which was filed was under Order VII 23 CPK, J & RNT, J CRP.No.1173 of 2020 Rule 11 CPC, which We have already held is not a composite application, also under Section 8 of the Arbitration and Conciliation Act, 1996. The Law as laid down in Ananthesh Bhakta (supra) shall apply where an application has been filed under Section 8 of the Arbitration and Conciliation Act, 1996, which did not accompany with the original arbitration agreement or certified copy thereof, which was filed later on, before the application was being entertained, which is not the case here.
44. In Syed Irfan Sulaiman (supra), upon which reliance has been placed by the learned counsel for the petitioner, it was held by the composite High Court of Andhra Pradesh that the application/petition under Section 8 of the Act, 1996, notwithstanding the failure on the part of the defendant to produce the original/certified copy of the reconstitution deed containing the arbitration clause, was maintainable and ought not to have been dismissed on that ground. The said application merited consideration as Section 8 of the Act, 1996 mandates in no uncertain terms that the judicial officer concerned shall refer the parties to the arbitration. It was held that in view of the arbitration clause, the suit was barred in terms of the Section 8 of the Act, 1996.
45. A perusal of the judgment in Syed Irfan Sulaiman (supra) shows that in that case the defendant had filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 seeking reference of the dispute to arbitration in terms of the arbitration clause contained in the partnership deed. He had also filed an application in the suit under Order 7 Rule 11 CPC seeking rejection of the plaint. In the present case, any application under Section 8 of the Arbitration and Conciliation Act, 1996 seeking reference of the dispute to the arbitration in terms of the arbitration clause in the partnership deed was not filed. We have already 24 CPK, J & RNT, J CRP.No.1173 of 2020 held that the application under Order 7 Rule 11 CPC in the present case cannot be termed as composite application. The judgment in the case of Syed Irfan Sulaiman (supra) is as such distinguishable.
46. We find that in M. Shankara Reddy (supra), the Coordinate Bench of this Court held that Section 8 of the Act, 1996 cannot be considered as bar to the civil suit to entertain application under Order 7 Rule 11 CPC. On the other hand, in Syed Irfan Sulaiman (supra), a Coordinate Bench of this Court held that once the suit was barred in terms of Section 8 of the Act, 1996, Order 7 Rule 11 (d) CPC applied. In M. Shankara Reddy (supra), there was no application under Section 8 of the Arbitration and Conciliation Act, 1996 and the only application was under Order 7 Rule 11 CPC, whereas in Syed Irfan Sulaiman (supra), besides an application under Order 7 Rule 11 CPC an application under Section 8 of the Act, 1996 was also filed. Considering the Hon‟ble Apex Court judgment in Rashtriya Ispat Nigam Ltd. (supra) that power under Section 8 of the Arbitration and Conciliation Act shall be exercised if a party so applies, in Our view, the exercise of power under Section 8 of the Arbitration and Conciliation Act is dependent upon a party applying under Section 8 of the Act, 1996 to refer the parties to the arbitration.
47. In view of the aforesaid, We are of the considered view that; i. If an application is filed under Section 8 of the Act, 1996, the Court on being satisfied with the pre-conditions shall refer the parties to the arbitration and shall reject the plaint under Order 7 Rule 11 (d) CPC as barred by law; But, ii. If no application is filed as per Section 8 of the Act, 1996, and there is no prayer to refer the parties to arbitration, the 25 CPK, J & RNT, J CRP.No.1173 of 2020 existence of the arbitration clause would not be a ground to reject the plaint under Order 7 Rule 11 CPC;
48. Following the judgment of this Court in M. Shankara Reddy (supra) by a Coordinate Bench, which applies to the facts of the present case, We are of the considered view that Section 8 of the Arbitration and Conciliation Act, 1996 does not furnish a ground for rejection of the plaint, under Order VII Rule 11 CPC. The Court below did not commit any illegality in not rejecting the plaint on the plea of the defendant that there was an arbitration clause.
49. In Vidya Drolia v. Durga Trading Corporation12, upon which the learned counsel for the petitioner has placed reliance, referring to paragraph-154, it has been held as under:
"154. Discussion under the heading "Who Decides Arbitrability?" can be crystallised as under:
154.1. Ratio of the decision in Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] on the scope of judicial review by the court while deciding an application under Sections 8 or 11 of the Arbitration Act, post the amendments by Act 3 of 2016 (with retrospective effect from 23-10-2015) and even post the amendments vide Act 33 of 2019 (with effect from 9-8-2019), is no longer applicable.
154.2. Scope of judicial review and jurisdiction of the court under Sections 8 and 11 of the Arbitration Act is identical but extremely limited and restricted.
154.3. The general rule and principle, in view of the legislative mandate clear from Act 3 of 2016 and Act 33 of 2019, and the principle of severability and competence-competence, is that the Arbitral Tribunal is the preferred first authority to determine and decide all questions of non-arbitrability. The court has been conferred power of "second look"
on aspects of non-arbitrability post the award in terms of sub-clauses (i),
(ii) or (iv) of Section 34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration Act.
12 (2021) 2 SCC 1 26 CPK, J & RNT, J CRP.No.1173 of 2020 154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably "non-arbitrable" and to cut off the deadwood. The court by default would refer the matter when contentions relating to non-arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism."
50. In Vidya Drolia (supra), it was held that the expression "existence of an arbitration agreement" in Section 11 of the Arbitration Act, would include aspect of validity of an arbitration agreement, albeit the Court at the referral stage would apply the prima facie test on the basis of the principles set out, in that judgment. In the present case, the question of deciding the arbitrability does not arise as any application under Section 8 of the Arbitration and Conciliation Act was not filed by the defendant before the Court below.
51. The next submission of the learned counsel for the petitioner is that the plaint is not as per Form No.49 and therefore, it did not disclose the cause of action with the necessary averments in a suit with respect to partnership firm for its dissolution and accounts. According to his submission, the pleadings of the plaint are not in inconformity with Order VI Rule 3 CPC read with Form No.49 in Appendix-A
52. We are not convinced.
53. Order VI Rule 3 CPC reads as under:
27 CPK, J & RNT, J CRP.No.1173 of 2020 "3. Forms of pleading:
The forms in Appendix A when applicable, and where they are not applicable forms of the like character, as nearly as may be, shall be used for all pleadings."
54. Order VI Rule 3 CPC therefore provides that the forms in Appendix-A when applicable, and where they are not applicable forms of the like character, as nearly as may be, shall be used for all pleadings.
55. Form 49 in Appendix-A upon which reliance is placed by the learned counsel for the petitioner provides as under: No. 49
PARTNERSHIP (Title) A.B., the above-named plaintiff, states as follows:--
1. He and C.D., the defendent, have been for......................years [or months] past carrying on business together under articles of partnership in writing [or under a deed, or under a verbal agreement].
2. Several disputes and differences have arisen between the plaintiff and defendant as such partners whereby it has become impossible to carry on the business in partnership with advantage to the partners. [or the defendent has committed the following breaches of the partnership articles:--(1) (2) (3)
[As in paras. 4 and 5 of Form No. 1.]
5. The plaintiff claims--
(1) dissolution of the partnership;
(2) that accounts be taken;
(3) that a receiver be appointed (N.B.--In suits for the winding-up of any partnership, omit the claim for dissolution; and instead insert a paragraph stating the facts of the partnership having been dissolved.)
56. Upon a careful reading of the plaint, We find that the plaint contains the material pleadings and particulars in as much as the details of the business under Partnership Deed, in writing, from the date of its 28 CPK, J & RNT, J CRP.No.1173 of 2020 commencement and for the period it was carried on, the nature of the dispute and differences between the plaintiff and defendants as partners, whereby it becoming not possible to carry on the business in partnership, the commission of the breaches of partnership articles, are very much mentioned therein. The plaintiff‟s claim has also been specifically pleaded for dissolution of partnership and rendition of accounts. Learned counsel for the petitioner could not specify as to what, if any, particulars necessary to be disclosed in terms of Form-49, for disclosing the cause of action, or complete cause of action, the plaint failed to disclose.
57. We find that the plaint is in conformity with Order VI Rule 3 CPC read with Form No.49 in Appendix-A.
58. In Sukhbir Singh v Brij Pal Singh13 the Hon‟ble Apex Court in paragraph-4 held as under:
"In paras 5, 9 and 10 of the plaint the respondents have in substance pleaded that they had been and were still willing to perform their part of the agreement and the defendants did have notice in that behalf. It is seen that averments made in the above paras are in substance as per Forms 47 and 48 prescribed in Appendix AA of the Code as amended by the High Court. What requires to be considered is whether the essential facts constituting the ingredients in Section 16(1)(c) of the Act were pleaded and that found mentioned in the said forms do in substance point to those facts. The procedure is the handmaid to the substantive rights of the parties. It would, therefore, be clear from a perusal of the pleadings and the forms that the averments are consistent with the forms....."
59. In Anwarul Haq vs. Nizam Uddin14, the Allahabad High Court held that Rule 3 of Order VI CPC evidently permits a departure from the language used in the Forms in Appendix-A, provided that the substance remains fulfilled. Paragraph-13 is reproduced as under: 13
(1997) 2 SCC 200 14 AIR 1984 All. 136 29 CPK, J & RNT, J CRP.No.1173 of 2020 "13. Rule 3 of Order VI Civil P.C. itself specifies that the Forms in appendix A of the First Schedule when applicable, as nearly may be, shall be used for all pleadings. This evidently permits a departure from the language used provided the substance remains fulfilled. The substantive provision contained in S. 16(c) does not insist upon a particular set of words to be used: the averment must in substance indicate the continuous readiness and willingness on the part of the person suing. The Form prescribed under O. 6. R. 3 is procedural, it is a rule of pleading, this has for its object the advance of cause of justice and it is not intended to short circuit decision on merits. It is procedural, something designed to facilitate justice and further its end not a penal enactment see Smt. Dipo v. Wassam Singh ((1983) 3 SCC 376 :
AIR 1983 SC 846): Kalipada Day v. B.K. Sen Gupta ((1983) 1 SCC 14 : AIR 1983 SC 876): Sangram Singh v. Election Tribunal, Katak (AIR 1955 SC 425) I am inclined for these reasons to agree with respect with the view expressed in Virendra Kumar v. Daya Nand (1982 All WC
176): Prag Datt v. Smt. Saraswati Devi (AIR 1982 All
37). Shakoor v. Palakdhari (1983 All WC 737) that the court in suitable cases should look into the totality of circumstances and the allegations made in the plaint and from them come to a conclusion whether necessary allegations have been made by the plaintiff in that regard. No particular language or phraseology need be employed by the plaintiff. A literal compliance to the language appearing in Forms 47 and 48 of the Appendix A is not imperative nor is this the requirement of law."
60. In Bijai Bahadur v. Shiv Kumar15 also the Allahabad High Court held as under in paragraphs - 7 & 8:
"7. O. VI R. 3, C.P.C. provides that the forms in Appendix A (of the Code) when applicable, and where they are not applicable, forms of the like character, as nearly as may be, shall be used for all pleadings.
Although these forms are not of a mandatory or statutory nature yet they are in substance meant for the guidance and naturally the essential requirements of the pleadings as indicated therein must find place in the pleadings of the parties. From the very nature of facts, it is not necessary that various allegations in a particular lis may be confined to the very language utilised in these forms but substantially the requirements of law must be complied with. I am not prepared to lay 15 AIR 1985 All 223 30 CPK, J & RNT, J CRP.No.1173 of 2020 down that the only way in which a pleading in a suit for specific performance can be made is the one drafted in Appendix A but I must emphasise that whatever be the language employed in the pleadings, the essential ingredients and statutory requirements must find a place in the pleadings failing which the parties may incur dismissal of their suit.
8. The model forms of pleadings in a suit based on specific performance of an agreement are given in Appendix A of the Civil P.C. They are Forms Nos. 47 and 48. In Form No. 47 paras 2 and 3 mention the necessary ingredients of such pleadings and these show that in one para the thrust of the pleading is on the demand being made by the plaintiff on the defendant to perform the agreement and in the other the true emphasis is on the plaintiff's own readiness and willingness to perform his part of the agreement. In Form No. 48, these very requirements have been diversified into four paragraphs. Paras 2 and 3 deal with the tender of money and the demand being made from the defendant to execute the deed and the repetition of such demand by the plaintiff, while paras 4 and 5 of the form show the reluctance of the defendant to comply with the plaintiff's demand and the plaintiff's own continuous readiness and willingness to pay the purchase money. The language employed in both these forms, though different, is essentially and in substance the same. In both after making an averment about the fact that an agreement to sell exists between the parties, the allegations are supposed to be made about the demand for performing the agreement and also specific assertion about the plaintiff's own readiness and willingness to perform his part of the agreement."
61. In Church of Christ Charitable Trust and Educational Charitable Society (supra), upon which reliance has been placed by the learned counsel for the petitioner to contend that plaint not being in conformity with the provisions of Order VI Rule 3 CPC read with Form No.49 in Appendix-A, requires rejection under Clause (d) of Order VII Rule 11 CPC, the Hon‟ble Apex Court held that while scrutinizing the plaint averments, it is the bounden duty of the trial Court to ascertain the materials for cause of action. The cause of action is a bundle of facts 31 CPK, J & RNT, J CRP.No.1173 of 2020 which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. A cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is relevant to re-produce paragraph Nos.8 to 10 of Church of Christ Charitable Trust and Educational Charitable Society (supra) as under:
"Cause of action
8. While scrutinising the plaint averments, it is the bounden duty of the trial court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action". A cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue.
9. In A.B.C. Laminart (P) Ltd. v. A.P. Agencies [(1989) 2 SCC 163] , this Court explained the meaning of "cause of action" as follows: (SCC p. 170, para 12) "12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the
32 CPK, J & RNT, J CRP.No.1173 of 2020 defendant nor does it depend upon the character of the relief prayed for by the plaintiff."
10. It is useful to refer the judgment in Bloom Dekor Ltd. v. Subhash Himatlal Desai [(1994) 6 SCC 322] , wherein a three-Judge Bench of this Court held as under: (SCC p. 328, para 28) "28. By „cause of action‟ it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court, (Cooke v. Gill [(1873) LR 8 CP 107] ); in other words, a bundle of facts which it is necessary for the plaintiff to prove in order to succeed in the suit."
It is mandatory that in order to get relief, the plaintiff has to aver all material facts. In other words, it is necessary for the plaintiff to aver and prove in order to succeed in the suit."
62. In Church of Christ Charitable Trust and Educational Charitable Society (supra), which was a suit for specific performance of a contract, in the plaint paragraph-4 thereof, it was alleged that the 2nd defendant as the agreement holder of the 1st defendant and also as registered power of attorney holder of the 1st defendant executed the agreement of sale, but any particulars showing as to the documents referred as „agreement holder‟ could not be found in the plaint, nor any such document was filed. The Hon‟ble Apex Court held that neither the documents were filed along with the plaint nor terms thereof have been set out in the plaint, whereas those documents were to be treated as part of the plaint as being the part of the cause of action. It was held that it is settled in law that where a document is sued upon and its terms are not set out in the plaint but referred to in the plaint, the said document does not get incorporated by reference in the plaint. In that case, though the plaint averred that the 2nd defendant is the agreement holder of the 1st defendant, but the said agreement was not produced and the date of the agreement was also not given in the plaint, as per Form Nos.47 and 48 of 33 CPK, J & RNT, J CRP.No.1173 of 2020 the Appendix-A of the Code, as involved therein. Mentioning of the date was material to attract the bar of limitation and such material date not having been pleaded, the failure to mention the date violated the requirements under Order VII Rule 6 read with Order VI Rule 3 CPC and Form Nos.47 and 48 of Appendix-A, which was done in order to get over the bar of limitation. It is relevant to re-produce paragraph Nos.13 and 15 of the judgment in Church of Christ Charitable Trust and Educational Charitable Society (supra) as under:
"13. In the light of the controversy, we have gone through all the averments in the plaint. In Para 4 of the plaint, it is alleged that the second defendant as agreement-holder of the first defendant and also as the registered power-of-attorney holder of the first defendant executed the agreement of sale. In spite of our best efforts, we could not find any particulars showing as to the documents which are referred to as "agreement-holder". We are satisfied that neither the documents were filed along with the plaint nor the terms thereof have been set out in the plaint. The abovementioned two documents were to be treated as part of the plaint as being the part of the cause of action. It is settled law that where a document is sued upon and its terms are not set out in the plaint but referred to in the plaint, the said document gets incorporated by reference in the plaint. This position has been reiterated in U.S. Sasidharan v. K. Karunakaran [(1989) 4 SCC 482] and Manohar Joshi v. Nitin Bhaurao Patil [(1996) 1 SCC 169].
15. It is clear that from the date the power of attorney is executed by the principal in favour of the agent and by virtue of the terms, the agent derives a right to use his name and all acts, deeds and things done by him are subject to the limitations contained in the said deed. It is further clear that the power-of-attorney holder executes a deed of conveyance in exercise of the power granted under it and conveys title on behalf of the grantor. In the case on hand, though the plaint avers that the second defendant is the agreement-holder of the first defendant, the said agreement is not produced. It was also pointed out that the date of agreement is also not given in the plaint. We have already mentioned Forms 47 and 48 of Appendix A and failure to mention the date violates the statutory requirement and if the date is one which attracts the bar of 34 CPK, J & RNT, J CRP.No.1173 of 2020 limitation, the plaint has to conform to Order 7 Rule 6 and specifically plead the ground upon which exemption from limitation is claimed. It was rightly pointed out on the side of the appellant that in order to get over the bar of limitation all the required details have been omitted."
63. We are of the considered view that the judgment in the case of Church of Christ Charitable Trust and Educational Charitable Society (supra) on the point reliance has been placed upon by the learned counsel for the petitioner in support of his contention does not advance his submission any further.
64. Learned counsel for the petitioner next submitted, placing reliance on the judgment in Ketineni Chandrasekhar Rao (supra), that there cannot be any partition of the partnership property. Firstly, the said judgment is not on the point of rejection of plaint and secondly, in that case, in spite of dismissal of earlier suit, O.S.No.596 of 2001 for partition and for separate possession of the subject property, the defendant No.4 of that suit filed another suit, as plaintiff for injunction, but did not disclose the fact of dismissal of the first suit. The material fact was not revealed. It was held that even in the absence of application of doctrine of res judicata, decree for partition in respect of the property of a partnership firm cannot be granted. It was further held that once plaintiff is not entitled to passing of a preliminary decree for partition, all that he can see, in the suit filed for passing of decree for dissolution of the partnership and rendition of accounts as per the existing partnership deed. In the present case, the suit is for dissolution of the partnership firm and consequently, to partition the properties belonging to the partnership firm described in the schedule into two equal shares and put the plaintiff in possession of the respective shares with further prayer to direct the defendant to render the accounts for a specified period and to pay the 35 CPK, J & RNT, J CRP.No.1173 of 2020 requisite sum, i.e., half of the plaintiff‟s share in the profits of the firm. It is not a suit only for the prayer of partition. If according to the submission of the learned counsel for the petitioner, based on the judgment cited, that the partnership property cannot be partitioned, the said objection can be raised during trial, in which case, the Court will certainly consider, the true nature of the prayer, for partition as made along with the prayer for dissolution of the partnership firm and for rendition of accounts and shall accordingly pass the decree.
65. We are of the considered view that in view of the specific prayer for dissolution of the partnership firm and also for rendition of the accounts made by the plaintiff/respondent in the plaint, merely because the plaintiff also prayed for partition of the properties of partnership firm and to pay the sum to the plaintiff as per his share, the plaint cannot be rejected on this ground at the stage of under Order 7 Rule 11 CPC.
66. For overall view of the aforesaid, We do not find any illegality in the impugned judgment of the Court below. The Civil Revision Petition is devoid of any merit and is accordingly dismissed. No order as to costs.
Pending miscellaneous petitions, if any, shall stand closed in consequence.
____________________ C.PRAVEEN KUMAR,J _______________________ RAVI NATH TILHARI,J Date: 22.04.2022 Dsr Note:
LR copy to be marked B/o Dsr