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Naresh Chand Agrawal Vs. Om Prakash Agrawal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1358 of 1975
Judge
Reported inAIR1977All416
ActsCode of Civil Procedure (CPC) , 1908 - Order 26, Rule 11
AppellantNaresh Chand Agrawal
RespondentOm Prakash Agrawal and anr.
Appellant AdvocateSwamy Dayal, Adv.
Respondent AdvocatePrakash Gupta, Adv.
DispositionRevision allowed
Excerpt:
.....the court and set up hie objection and a prima facie enquiry at least in the dispute could be held in the trial court. the trial court itself can consider the said question and the matter will be decided by the court below on its own merit but it seems to me that naresh chand's objection should not have been rejected simply on the ground that he was not a party to the suit when he was clearly alleging that he was the sole owner of the goods and articles kept in the go-down of nand bhawan......was resisted when he went to the godown situate at nand bhawan, jeoni mandi, agra. thereafter, one naresh chand, son of the defendant fateh chand, moved an application dated 28th april, 1975 (34-c) and therein he claimed that the court's order appointing the commissioner to prepare an inventory in respect of godown at nand bhawan was not justified as he was the sole owner of the goods and articles kept therein and the alleged partnership had no concern with the same. he further claimed that the business in the name of m/s. joint trade corporation was being carried on by him as the sole owner thereof and the same was not the branch of the alleged partnership firm as alleged in the plaint.2. the trial court by its impugned order under revision rejected the said application and feeling.....
Judgment:
ORDER

M.P. Mehrotra, J.

1. This revision is directed against an order which was passed in a suit between the ex-partners of a dissolved partnership firm for accounting. One Om Prakash Agrawal has filed the suit against Fateh Chand claiming that there was a partnership firm between them in the name of M/s. Fateh Chand & Sons and the same had been dissolved by a notice given by the defendant to the paintiff before the institution of the suit. The said firm was said to have carried on business at Indra Mill Compound, Jeoni Mandi, Agra. It was alleged that godowns for storing the goods were also taken at Indra Mill Compound, Jeoni Mandi, Agra, Johns Mills No. 2, Jeoni Mandi, Agra and in Nand Bhawan (Old Mahalaxmi Oil Mills) at Jeoni Mandi, Agra and at other places. It was further alleged that the partnership firm also opened a retail shop in the name of M/s. Joint Trade Corporation at Shyam Market Jeoni Mandi, Agra. It seems when the suit was filed, the plaintiff moved an application for the appointment of aCommissioner who should prepare an inventory of the partnership assets and for signing the account books. The court allowed the said application. The Commissioner went and prepared inventories but he was resisted when he went to the godown situate at Nand Bhawan, Jeoni Mandi, Agra. Thereafter, one Naresh Chand, son of the defendant Fateh Chand, moved an application dated 28th April, 1975 (34-C) and therein he claimed that the court's order appointing the Commissioner to prepare an inventory in respect of godown at Nand Bhawan was not justified as he was the sole owner of the goods and articles kept therein and the alleged partnership had no concern with the same. He further claimed that the business in the name of M/s. Joint Trade Corporation was being carried on by him as the sole owner thereof and the same was not the branch of the alleged partnership firm as alleged in the plaint.

2. The trial court by its impugned order under revision rejected the said application and feeling aggrieved, Naresh Chand has come up in the instant revision to this court and in support and opposition thereof, I have heard learned counsel for the parties.

3. Reliance has been placed on Order 40, Rule 1 (2), C.P.C. which in substance lays down that the possession of a third party whose possession cannot be disturbed by any of the parties to the suit shall not be disturbed by appointment of the receiver. The principle of that provision may have relevance but the Rule itself strictly has no applicability to the facts of the present case. We are concerned with a situation where a third party to a suit says that no Commissioner can be appointed to prepare an inventory of his business. It seems to me that if it be a fact that Naresh Chand, the applicant, was really the owner of the goods kept in the godown at Nand Bhawan, then surely the trial court will have no jurisdiction in respect of the said goods and articles. The court's jurisdiction will be limited to the partnership assets whose accounting is sought in the suit. However, the mere application made by Naresh Chand cannot be accepted without some enquiry in the matter. The trial court did not go into this question at all. It thought that unless Naresh Chand got himself impleaded under Order 1, Rule 10, C.P.C. the court could not entertain the objection. In my opinion, this approach is legally not correct. Whenever a third party is sought to be interfered with in his pos-session of any property or in the carrying on of his business under any order of the court, it is open to him to come forward to the court and set up a claim that his possession or his carrying on business should not be interfered with because it is beyond the subject-matter of the suit. There is nothing in the Code of Civil Procedure to prevent the court from holding a prima facie enquiry into the objection made by such a third party. The court has always jurisdiction to decide Whether it has jurisdiction over a particular subject-matter. In a situation where a plaintiff alleges a particular asset to be a partnership asset and a third party claims that the same has nothing to do with the partnership, if an inter-locutary order is passed in respect of such an asset, I think the third party can very well come before the court and set up hie objection and a prima facie enquiry at least in the dispute could be held in the trial court.

4. It is true that under Order 1, Rule 10, C.P.C. the court has jurisdiction to implead proper parties even on its own. However, it is not necessary that such impleadment must have been forthcoming before the court could entertain the objections of Naresh Chand. Moreover, it is open to the (plaintiff to apply for the impleadment of Naresh Chand but I make it very 'dear that in passing the order deciding this revision, I am making no observation in respect of the right or expediency of impleading Naresh Chand in the suit in question. If the plaintiff so thinks, he can make an application under Order 1, Rule 10, C.P.C. seeking the impleadment of Naresh Chand. The trial court itself can consider the said question and the matter will be decided by the court below on its own merit but it seems to me that Naresh Chand's objection should not have been rejected simply on the ground that he was not a party to the suit when he was clearly alleging that he was the sole owner of the goods and articles kept in the go-down of Nand Bhawan. I do not think that powers under Section 151, C.P.C. can be extended to enable the court to direct inventories being prepared of the assets of third party who have nothing to do with, the subject-matter of dispute in a suit. In this view of the matter, this revision is allowed and I direct that the trial court shall decide the objection of Naresh Chand on merit. It shall be open to the said court to implead Naresh Chand as a party in case the plaintiffapplies and succeeds in making out acase for such impleadment after hearing the objection of Naresh Chand and defendant on record to such an application. It shall also be open to the said court to make such impleadment on its own under Order 1, Rule 10, C.P.C. if it thinks necessary for the purposes of adjudicating the controversies between the parties. I do not wish to hedge the discretion of the trial court in this matter. In the circumstances, there will be no order as to costs.


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