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Judgment
Heard the learned counsel for the appellant and the respondents.
This appeal is filed by the plaintiff. He is aggrieved by the order dated 07.09.2017 passed on an application filed under Order 39 Rule 4 CPC by defendant No.5 in O.S.No.1071/2015. By the impugned order the learned trial Judge vacated the order of status quo granted against defendant No.5.
Briefly stated the facts are that the appellant being the plaintiff brought a suit for partition in respect of five items of the property. According to the plaintiff himself, Item No.5 belongs to a partnership firm and that she has 32% share in the said firm. Because the 1st defendant sold this Item No.5 to the 5th defendant by executing a sale deed dated 31.03.1999, the plaintiff included this property in the suit and they sought an order of temporary injunction restraining the 5th defendant from alienating the suit property. The learned trial Judge, instead of granting an order of temporary injunction passed an order of status quo with respect to Item No.5 of the suit property. The 5th defendant made the application for vacating the injunction which was allowed.
The learned counsel for the appellant submits that knowing fully well that the Item No.5 of the property belongs to the partnership firm and that the plaintiff has 32% share in the firm, it was sold to 5th defendant who inturn was intending to alienate the property to some others and therefore an application was made seeking an order of temporary injunction against the 5th defendant. Initially status quo order was granted. Now the said order has been vacated. The order of status quo granted earlier was binding on both the parties. The reasons assigned by the trial judge for vacating the order of status quo are not supported by valid reasons. Therefore the said order needs to be set aside and the earlier order of status quo restored.
The learned counsel for the 1st respondent submits that the suit is not maintainable in view of Section 69 of the Partnership Act. When the plaintiff says that she has 32% share in the firm and that admittedly Item No.5 of the suit property is the property of the firm, the plaintiff could not have included that property in the suit for partition and that the firm being unregistered, suit itself is not maintainable. Therefore he argues that rightly the trial court came to the conclusion that interim order requires to be vacated. There is no illegality in the impugned order and he argues for sustaining the said order.
After hearing both sides, I am of the opinion that Section 69 of the Partnership Act is not applicable to the facts of the case. Section 69(1) says that a suit cannot be filed to enforce a right arising from a contract or conferred by the said Act by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. Sub-section (2) says that a suit cannot be instituted arising from a contract in any court or by or on behalf of a firm against any 3rd party unless the firm is registered.
Learned counsel for respondent No.1 refers to Sub-section (2) to argue that even against the 3rd party suit is not maintainable. It is true that the plaintiff has stated very clearly that Item No.5 of the suit property belongs to the firm and that she has 32% share in the firm. In a suit for partition enforcement of contractual right does not arise. What is to be proved is the right to seek partition. Whether Item No.5 of the suit property could have been included in the suit for partition is the matter to be decided by the trial court and the 1st respondent has a right to contend before the trial court that Item No.5 has to be excluded from partition if really it is the partnership firm property. Therefore, it is a matter of trial. The grievance of the plaintiff is that this property could not have been sold to the 5th defendant by the 1st defendant in his individual capacity. Therefore there should not be any further alienation by the 5th defendant. Under these facts and circumstances, the order of status quo with regard to alienation passed by the trial court earlier would safeguard the interest of both the parties. There was no need to vacate the said order. Therefore, I come to the conclusion that this appeal needs to be allowed. Accordingly the following:
ORDER
i. Appeal is allowed.
ii. Order dated 07.09.2017 is set aside.
iii. The status quo order granted by the trial court on earlier occasion is restored.
iv. Learned counsel for the respondent No.1 seeks a direction that the trial court shall dispose of the case within a time bound limit. In my view, such a direction cannot be given. If the parties are interested in early disposal of the suit, they can request the trial court for early disposal of the suit.