Gujarat High Court
Dwarika Prasad Agarwal & Brothers - ... vs Writers And Publishers Limited & on 11 February, 2013
Author: Ravi R.Tripathi
Bench: Ravi R.Tripathi
DWARIKA PRASAD AGARWAL & BROTHERS - THROUGH PARTNERS....Appellant(s)V/SWRITERS AND PUBLISHERS LIMITED O/OJA/51/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD O.J.APPEAL NO. 51 of 2012 ================================================================ DWARIKA PRASAD AGARWAL & BROTHERS - THROUGH PARTNERS....Appellant(s) Versus WRITERS AND PUBLISHERS LIMITED & 1....Opponent(s) ================================================================ Appearance: MR PRADEEP KANT, SENIOR ADVOCATE WITH MR D SAHAY ADVOCATE WITH MR VISHWAS SHAH, ADVOCATE WITH MR MASOOM K SHAH, ADVOCATE for the Appellant(s) No. 1 MR SN SOPARKAR SENIOR ADVOCATE WITH MR AS VAKIL, ADVOCATE AND MR ANKUR MODI, ADVOCATE for the Opponent(s) No. 1 - 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE R.D.KOTHARI Date : 11/02/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. The present appeal is filed by M/s. Dwarika Prasad Agarwal & Brothers through its Partner- Smt. Kishori Devi.
2. Learned senior advocate appearing for the appellant moves draft amendment, the same is allowed.
3. Mr. Saurabh Soparkar, learned Senior advocate appearing for the contesting opponents raised a preliminary objection. The learned Senior Advocate submitted that the present appeal is not maintainable at the hands of Smt. Kishori Devi describing herself as a Partner of M/s. Dwarika Prasad Agarwal. In this regard, he invited attention of the Court to order dated 08/09/2003 passed by the Registrar, Firms, Societies and Chits, U.P., Lucknow. A copy of which is found at Page nos.460 to 462.
4. Learned senior advocate also invited attention of the Court to the fact that the order passed by the Registrar was subject matter of Writ Petition No.2996(MS) of 2004 before the Allahabad High Court, which came to be disposed of by judgment and order dated 21/09/2011. The operative part of which reads as under:-
In view of the above, the impugned orders dated 08.09.2003, 03.12.2003 and 07.01.2004 are hereby quashed. Registrar shall pass fresh order after affording personal hearing to all the parties concerned and in accordance with law. It is further provided that in case any document is not available on the official file of the Registrar, he shall ask the parties to furnish the same. It will be open for the Registrar to examine the genuineness of the documents so furnished by the parties and record a clear-cut finding on this point.
With the aforesaid observations and directions, this writ petition is disposed of finally. No order as to costs. (emphasis supplied)
5. Learned senior advocate submitted that against this order of the learned single judge an appeal was filed before the Allahabad High Court being Special Appeal No.711 of 2011 and Special Appeal No.731 of 2011, which came to be decided by judgment and order dated 15/11/2011. The operative part of which reads as under:-
We, under the circumstances, set aside the impugned order dated 21.09.2011 passed by the Learned Single Judge in Writ Petition No.2996(MS) of 2004 in re:M/s. Dwarka Prasad Agarwal and another vs. Registrar, Societies and Chits, U.P. Lucknow and remand the matter to the learned Single Judge for deciding the same afresh on merits. It will be open for the respondents to move application for stay before the learned Single Judge.
Both the special appeals are allowed. (emphasis supplied)
6. Learned Senior Advocate invited attention of the Court to the fact that learned Counsel Mr. Pradip Kant was one of the Members of the Division Bench who decided the said appeal.
7. Learned senior advocate submitted that once the judgment and order of the learned Single Judge dated 21/09/2011 was quashed by the Division Bench, the order of Registrar became operative. Learned Senior Advocate submitted that it is a settled legal position that until the said order is stayed by the Competent Court, it will continue to remain operative. Learned senior advocate submitted that the Division Bench was pleased to order that, 'i t will be open for the respondents to move application for stay before the learned Single Judge.' The learned senior advocate submitted that by judgment and order dated 21/09/2011 the learned Single Judge was pleased to quash and set aside the order passed by the Registrar, but then on 15/11/2011 when the appeal filed against the order of the learned Single Judge came to be allowed, the order of the Registrar became operative. The learned Senior Advocate submitted that the present appellant can contend that she had a right to represent the Partnership Firm during the period in which the judgment and order of the learned Single Judge remained operative, but the moment the Division Bench quashed the judgment and order of the learned Single Judge, the order passed by the Registrar became operative, and the right of the appellant again became non-operative.
8. Learned Senior Advocate for the appellant in this regard has submitted that the order of Registrar of Firms is nullity, as Registrar has no jurisdiction to pass such an order. The order may be nullity for many reasons. Therefore, even when an 'order' is urged to be a 'nullity' ought to be challenged before the Competent Court. Learned Senior Advocate has not shown that the order of Registrar of Firms has not revived after the order of the Division Bench. Besides learned Senior Advocate has not shown that the order of Registrar is challenged before the Competent Court. In Short, except bald assertion as to nullity, there is nothing else coming on record.
9. The learned senior advocate appearing for the appellant could not convince this Court. The order passed by the Registrar is not stayed by any Competent Court. In view of that the incapacity, which came to be attached to the present appellant by virtue of order of Registrar continues. Only on that short ground, this appeal is held to be not maintainable at the instance of the present appellant. The same is dismissed.
10. At the request of learned Senior Advocate for the appellant, it is clarified that the Court has not examined any other aspects of the matter.
(RAVI R.TRIPATHI, J.) (R.D.KOTHARI, J.) aruna Page 5 of 5