Jaswant Kaur Virk vs Mrs. Gurdip Kaur and Another

Sat Pal, J.—This petition has been directed against the order dated 7-2-1996 passed by the Additional District Judge, Chandigarh. By this order the learned Additional District Judge has upheld the order dated 22-3-1995 passed by the learned trial Court by which the application filed by the petitioner under Order 20, Rule 9, Order 41, Rule 1 and Order 39, Rules 1 and 2 of the CPC was dismissed. Notice of this petition was issued to the respondents.

Mr. Gupta, the learned senior counsel appearing on behalf of the petitioner submits that the petitioner had earlier filed an eviction petition against the respondent No. 1 on 23-11-1993 on the ground that the said respondent had not been paying the rent since 1990. He submits that in the written statement tiled on behalf of respondent No. 1, it was pleaded that there is no lease agreement between the petitioner and the said respondent and on the contrary there was a partnership deed between the parties and as such the eviction petition was not maintainable. It was in these circumstances that the petitioner filed a suit against respondent No. 1 for winding up of the partnership and also for recovery of Rs. 1,05,000/- being the share of the petitioner for the period April, 1990 to 30-11-1993. Along with this suit the application under Order 20, Rule 9 for appointment of the Local Commissioner, Order 41, Rule 1 for appointment of the Receiver and under Order 39, Rules 1 and 2 for interim injunction was filed by the petitioner. The said application was dismissed by the learned trial Court and the order of the learned trial Court has been upheld by the learned lower appellate Court, as stated herein- above. Against the aforesaid orders passed by the Courts below, the present petition has been filed by (he petitioner,

Mr. Gupta, the seamed counsel of the petitioner has drawn my attention to para 9 of the impugned order passed by the learned lower appellate Court and submits that the petitioner as per terms of (he partnership deed, was entitled to fixed monthly profits and he was not to share the losses of the firm. He submits that such a partnership where one of the partners need not share the Josses, is permissible under law and in support of this submission he has plaeed reliance on a judgment of this Court in B.C.G.A. (Pb.) Ltd. v. Commr. of Income Tax, Punjab N.W.F. and Delhi Provinces AIR 1937 P&H 338. He further submits that in any case the partenership had been admitted by the respondent himself and as such the prayer of the petitioner for appointment of local commissioner and receiver and for interim injunction are valid. The learned counsel further submitted that though the land in dispute has been acquired by Chandigarh Administration in the year 1989 but the husband of the petitioner Hakam Singh (who is respondent No. 2 in this petition) had filed the writ petition bearing CWP No. 14058 of 1990 and this writ petition was admitted on 8-11-1990 and dispossession was prayed. It may be noted here that this writ petition is still pending.

Mr. V. Ramswaroop, the learned counsel appearing on behalf of the respondents, however, submits that since the petitioner herself had admitted that she was not to share the losses, the alleged partnership itself is invalid and contrary to law. In support of this submission the learned counsel has placed reliance on a judgment of the Supreme Court in Helper Girdharbhai Vs. Saiyed Mohmad Mirasaheb Kadri and Others, and a judgment of this Court in Delhi Beopar Mandal Vs. Commissioner of Income Tax, . He further submits that in any case petitioner was not the owner of the land in dispute as the writ petition mentioned hcreinabove was filed by her husband who claims to be the owner of the land in dispute.

I have heard the learned counsel for the parties and have perused the records. The case of the petitioner admittedly is now based on the partnership deed executed on 14-6-1988. It is also not disputed that in terms of the said partnership deed, the petitioner was to share only the profit and not the losses. The question whether the genuine partnership existed between the parties is a mixed question of law and fact and the same cannot be decided in the present proceedings which have arisen from the application filed by the petitioner-plaintiff for interim injunction and for appointment of Local Commissioner and Receiver. Further as held by the Supreme Court in the ease of Helper Girdharbhai Vs. Saiyed Mohmad Mirasaheb Kadri and Others, sharing of profits and contributing to the losses are the basic elements in the partnership and without expressing any opinion at this stage, this point will have to be looked into during the trial, by the learned trial Court. The admission of the respondent No. 1 in the rent case with regard to partnership can also be looked into by the learned trial Court.

In view of the above discussion I am of the opinion that the orders passed by the Courts below do not call for any interference by this Court in exercise of its jurisdiction u/s 115, C.P.C. The only direction which can be given at this stage is that the respondent shall not alienate or part with possession of the land in dispute. Accordingly, the respondent is directed not to alienate or part with possession of the suit land during the pendency of the suit. With this direction, the petition stands disposed of.