Harish Tandon JUDGMENT
Harish Tandon, J.
1. Thoroughly confused and unmerited points have been agitated in this revisional application, as the preliminary point requiring this Court to invest lot of its time to deal with them.
2. The first point of attack before this Court is that the suit as well as the revisional application is not maintainable at the instance of the plaintiffs/petitioners when one of the plaintiffs, who happened to be the partner of a partnership firm showed his intention to retire therefrom. To elaborate the said point, it is further submitted that the resultant effect of a person retiring from the partnership firm and a partner having died are one and the same.
3. The other point, which, according to the learned advocate, strike at the root is that one of the partners having joined a government service cannot continue with the business or in the other words engage himself into a direct or indirect avocation and, therefore, the suit is not maintainable.
4. Before proceeding to deal with the aforesaid points taken before this Court it would be necessary to adumbrate the facts germane from the pleadings of the parties.
5. The plaintiffs/petitioners filed a suit against the defendant Nos. 1 to 5 for declaration that they have a right to continue with the partnership business from the property described in schedule 'A' to the plaint and the defendants have no right, title and interest to interfere and/or obstruct in running the business.
6. Admittedly, the plaintiffs were granted off-shop licence to sale the foreign liquor from the previous premises and applied for shifting the licence to 'A' scheduled property. It is also not in dispute that the competent authority permitted the shifting of the licence, as a result whereof, the partnership business was allowed to be carried on from the other premises, i.e., 'A' scheduled property.
7. The defendant Nos. 1 to 5, who are represented before this Court and have taken those preliminary objections, are admittedly neither the owner of the 'A' scheduled property nor have any semblance of right, title and interest therein.
8. The objection to an application for injunction is taken that permitting to sale the foreign liquor from the 'A' scheduled property shall have a social impact and the authorities could not have permitted the shifting of the licence.
9. Various provisions of the Partnership Act have been placed before this Court to buttress the aforesaid submissions. According to the contesting defendants/opposite parties, the partnership connotes the involvement of more than one person and cannot be carried out by a single person. According to them, the partnership was created by two persons, one of whom have recently joined the service and signifies his intention to retire from the partnership leaving the other partners to remain, ipso facto, leads to dissolution of partnership. In support of the same, reliance is placed upon Section 41(b) of the Indian Partnership Act, 1932 (hereinafter referred to as 'said Act'), which, according to the contesting opposite parties, has relevancy in the present context. Further reliance is placed upon Section 42(c) of the said Act for the proposition that partnership is dissolved on certain contingencies, one of such contingency is the death of a partner, which can be applied in case of retiring partner as well and, therefore, a dissolved firm can neither sue or be sued before the Court of Law and placed reliance upon a judgment of the Hon'ble Supreme Court in case of Commissioner of Income Tax, M.P., Nagpur and Bhandara vs. Seth Govindram Sugar Mills, reported in MANU/SC/0170/1965 : AIR 1966 Supreme Court 24.
10. It is audaciously submitted by the contesting opposite parties that the licence granted by the competent authority was valid till 31st March, 2015 and in absence of any renewal, the plaintiffs cannot continue with the said business.
11. Taking an analogy from the observations made ........