Case Note & Summary
The case involves a second appeal filed by the original defendants (appellants) against the judgment of the Ad-hoc District Judge-2, Nagpur, dismissing their appeal in Regular Civil Appeal No.43 of 2010. The suit was originally filed by the respondent (plaintiff) in the Small Causes Court, Nagpur, seeking recovery of possession of a shop premises and arrears of rent. The plaintiff claimed that the defendants were tenants in the suit premises. The defendants contended that there was a partnership between the parties, and the suit was not maintainable before the Small Causes Court. The trial court partly decreed the suit, and the first appellate court confirmed the decree. The second appeal was admitted on three substantial questions of law: (1) whether the Small Causes Court had jurisdiction to try the suit given the bar under Items 19 and 29 of the Second Schedule of the Provincial Small Cause Courts Act, 1887; (2) whether oral evidence inconsistent with the partnership deeds (Exh.62 and Exh.92) could be considered; and (3) whether a fixed payment of Rs.1,500/- provided in the partnership deed was permissible for a valid partnership. The High Court held that the suit was for recovery of possession and arrears of rent, not for dissolution of partnership or accounts, and thus the Small Causes Court had jurisdiction. It further held that oral evidence contrary to the written terms of the partnership deed cannot be considered under Sections 91 and 92 of the Indian Evidence Act, 1872. Regarding the third question, the court held that a fixed monthly payment to a partner is permissible under the Indian Partnership Act, 1932, as it is a mode of sharing profits. The appeal was dismissed, and the decree of the courts below was confirmed.
Headnote
A) Civil Procedure - Jurisdiction of Small Causes Court - Suit based on partnership seeking declaratory relief - Bar under Item 19 and Item 29 of Second Schedule of Provincial Small Cause Courts Act, 1887 - The suit was for recovery of possession and arrears of rent, not for dissolution of partnership or accounts, hence Small Causes Court had jurisdiction. (Paras 1-3)
B) Evidence - Oral evidence inconsistent with written contract - Sections 91 and 92 of Indian Evidence Act, 1872 - Oral evidence contrary to the terms of a written partnership deed cannot be considered. (Para 2)
C) Partnership Law - Fixed monthly payment to partner - Section 4 and Section 6 of Indian Partnership Act, 1932 - A fixed payment of Rs.1,500/- to one partner is permissible and does not invalidate the partnership, as it is a mode of sharing profits. (Para 3)
Issue of Consideration
Whether the Small Causes Court had jurisdiction to try a suit based on partnership relationship seeking declaratory relief, in view of the bar created by Item 19 and Item 29 of the Second Schedule of the Provincial Small Cause Courts Act, 1887; whether oral evidence inconsistent with the terms of the partnership deed could be considered; and whether a fixed payment of Rs.1,500/- provided in the partnership deed was permissible for a valid partnership.
Final Decision
The second appeal is dismissed. The judgment and order dated 10.9.2013 passed by the Ad-hoc District Judge-2, Nagpur, in Regular Civil Appeal No.43 of 2010, and the judgment and order dated 21.11.2009 passed by the Additional Judge, Small Causes Court, Nagpur, in Regular Civil Suit No.44 of 2004, are confirmed. No order as to costs.
Law Points
- Jurisdiction of Small Causes Court
- Partnership Act
- 1932
- Section 4
- Section 6
- Section 30
- Evidence Act
- 1872
- Section 91
- Section 92
- Provincial Small Cause Courts Act
- 1887
- Second Schedule
- Item 19
- Item 29
Case Details
2014 LawText (BOM) (04) 132
Second Appeal No.494 of 2013
Shri A. Shelat for Appellants, Shri U. P. Deopujari for Respondent
Smt. Chandabai wd/o Devidas Mahule and Prakash s/o Devidas Mahule
Mehmood Khan Abdul Hamid Khan
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Nature of Litigation
Second appeal against dismissal of regular civil appeal in a suit for recovery of possession and arrears of rent.
Remedy Sought
Appellants sought to set aside the decree for possession and arrears of rent passed by the Small Causes Court and confirmed by the first appellate court.
Filing Reason
Appellants challenged the jurisdiction of the Small Causes Court and the consideration of oral evidence inconsistent with the partnership deed.
Previous Decisions
The trial court (Additional Judge, Small Causes Court, Nagpur) partly decreed the suit on 21.11.2009. The first appellate court (Ad-hoc District Judge-2, Nagpur) dismissed the appeal on 10.9.2013.
Issues
Whether the Small Causes Court had jurisdiction to try the suit based on partnership relationship seeking declaratory relief, in view of the bar under Item 19 and Item 29 of the Second Schedule of the Provincial Small Cause Courts Act, 1887.
Whether oral evidence inconsistent with and contrary to the terms of partnership deeds (Exh.62 and Exh.92) could have been considered.
Whether a fixed payment of Rs.1,500/- provided in the partnership deed was permissible for a valid partnership, especially when the premises of the partnership was to be used as shop premises.
Submissions/Arguments
Appellants argued that the suit was based on partnership and sought declaratory relief, which is barred by Items 19 and 29 of the Second Schedule of the Provincial Small Cause Courts Act, 1887, and thus the Small Causes Court lacked jurisdiction.
Appellants contended that oral evidence inconsistent with the written partnership deed should not have been considered.
Appellants submitted that a fixed payment of Rs.1,500/- to one partner is not permissible under partnership law.
Respondent argued that the suit was for recovery of possession and arrears of rent, not for dissolution of partnership or accounts, and thus the Small Causes Court had jurisdiction.
Respondent submitted that oral evidence contrary to the written terms is inadmissible under Sections 91 and 92 of the Indian Evidence Act, 1872.
Respondent contended that a fixed payment to a partner is a mode of sharing profits and is permissible under the Indian Partnership Act, 1932.
Ratio Decidendi
The Small Causes Court has jurisdiction to try a suit for recovery of possession and arrears of rent even if the relationship between the parties is that of partners, as the suit is not for dissolution of partnership or accounts. Oral evidence inconsistent with the written terms of a partnership deed is inadmissible under Sections 91 and 92 of the Indian Evidence Act, 1872. A fixed monthly payment to a partner is permissible under the Indian Partnership Act, 1932, as it is a mode of sharing profits.
Judgment Excerpts
This second appeal is directed against judgment and order dated 10.9.2013, passed by the learned Ad-hoc District Judge-2, Nagpur, in Regular Civil Appeal No.43 of 2010, whereby the appeal was dismissed...
Whether in the facts and circumstances of the case Small Causes Courts could be said to have jurisdiction to try the suit, when the suit is based on relationship of partnership and seeks a declaratory relief, in view of the bar created by Item 19 and Item 29 of 2nd Schedule of the Provincial Small Causes Court Act, 1887?
Whether in the facts and circumstances of the case, it can be said that fixed payment of Rs.1,500/- provided in the partnership deed was permissible for a valid partnership, specially when the premises of the partnership was to be used as shop premises?
Procedural History
The respondent filed Regular Civil Suit No.44 of 2004 in the Small Causes Court, Nagpur, for recovery of possession and arrears of rent. The trial court partly decreed the suit on 21.11.2009. The appellants filed Regular Civil Appeal No.43 of 2010 before the Ad-hoc District Judge-2, Nagpur, which was dismissed on 10.9.2013. The appellants then filed the present second appeal, which was admitted on 19.12.2013 on three substantial questions of law.
Acts & Sections
- Provincial Small Cause Courts Act, 1887: Second Schedule, Item 19, Item 29
- Indian Evidence Act, 1872: Section 91, Section 92
- Indian Partnership Act, 1932: Section 4, Section 6
