Amit Sharma vs Rakesh Kumar Sharma And Others

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Petitioner in this CMP seeks to assail the order dated 17th July, 2023 (Annexure-1) passed by learned 3rd Additional Senior Civil Judge, Cuttack in C.S. No.229 of 2008, whereby an application filed by the Plaintiff-Petitioner to call for the deed of dissolution of partnership from the Defendant No.1, has been rejected.

Mr. Bose, learned counsel for the Petitioner submits that the suit has been filed for declaration that the dissolution of partnership firm is an outcome of fraud and misrepresentation along with other reliefs. After closure of evidence of D.W.1, the Petitioner filed the aforesaid two petitions which were rejected vide a common order under Annexure-1. Hence, this CMP has been filed.

It is his submission that D.W.1 in his cross-examination has categorically stated that his father had submitted the original deed of partnership dated 1st April, 1994 in the officer of the Sales Tax. He further stated that his father knows why the deed of dissolution was prepared. The deed of dissolution of partnership was an unregistered document like the partnership deed and the said original deed of dissolution is kept in the office of his advocate, namely, Sri. Kartik Charan Sahoo, who was looking after the tax matters. He further submitted that he has no objection, if the said document dated 1st April, 1994 is called for the Office of his advocate, Lt. D.N. Mohanty, at Buxi-Bazar. Since the Defendant No.1 does not have any objection to call for the deed of dissolution form the officer of the advocate, there was no difficulty on the part of learned trial Court in directing the Defendant No.1 to bring the same from his advocate and present it before the Court. This aspect was not considered by learned trial Court while adjudicating the petitions. He, therefore, prays for setting aside the impugned order.

Considering the submission made by learned counsel for the Petition and on perusal of the impugned order it appears that learned trial Court rejected the petition on the ground that the suit is of the year 2008 and in such situation any order on the petition will unnecessarily linger the proceeding without any fruitful result. From the above, it appears that learned trial Court has not considered the petition on its own merit.

Accordingly, this Court, while setting aside the impugned order under Annexure-1 in respect of the calling for the deed of dissolution of partnership from Defendant No.1, directs learned trial Court to consider the said petition afresh giving opportunity of hearing to the parties concerned.

Since the suit of the year 2008, learned trial Court should consider the petition at once without granting any adjournment to the parties.

Since the order is passed without issuing notice to the Opposite Parties, they are at liberty to seek for variation of this order, if they feel aggrieved.

Urgent certified copy of this order be granted on proper application.

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