REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL No.3399 OF 2019 (Arising out of S.L.P.(C) No.21469 of 2012)

Bhagwan Das Goel(Dead) Through His L.Rs. & Ors. ….Appellant(s)

VERSUS

Pyare Kishan Agarwal       ….Respondent(s)

                 J U D G M E N T

Abhay Manohar Sapre, J.  

1. Leave granted.

2. This appeal is directed against the final

judgment and  order  dated  14.05.2012  passed  by

the High Court of Judicature at Allahabad in Writ

C. No.14839/1993 whereby the High Court

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dismissed the writ petition filed by the appellants

herein and upheld the order dated 18.03.1993

passed by the Civil Judge, Jhansi in O.S.

No.140/1992.

3. A few facts need mention hereinbelow for the

disposal of this appeal, which involves a short point.

4. The appellants are the legal representatives of

the original defendants and the respondent herein

is the plaintiff of the suit out of which this appeal

arises.

5. The respondent filed an application under

Section 20 of the Arbitration Act, 1940 (since

repealed) against the appellants’ predecessors­in­

title. The application was founded on the allegations

inter alia  that there was a partnership between the

appellants’ predecessors­in­title with the

respondent on 05.07.1960 by name "Gupta Bus

Service".  

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6. However, the disputes arose between the

partners of this firm(Gupta Bus Service), which

resulted in its dissolution. It was alleged that

Clause 11 of the Partnership Deed provides for

resolution of disputes arising out of the partnership

between the parties by an Arbitrator. The

respondent, therefore, prayed that an Arbitrator be

appointed in terms of Clause 11 of the Partnership

Deed for deciding the disputes, which have arisen

between the parties relating to the partnership.  

7. The appellants (defendants) on being served

raised a preliminary objection contending therein

that since the partnership in question on which the

application under Section 20 of the Partnership Act

was founded was an “unregistered partnership",

therefore, in  the  light  of the bar  contained under

Section 69 (3) of the Partnership Act, the application

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filed by the respondent was not maintainable,

therefore, it was liable to be dismissed as such.

8. The Civil Judge by order dated 18.03.1993

overruled the objection raised by the appellants

(defendants) and held that the application filed by

the respondent (plaintiff) is maintainable. The

appellants (defendants) felt aggrieved and filed writ

petition in the High Court at Allahabad under

Article 227 of the Constitution of India.  

9. By impugned order, the High Court dismissed

the writ petition and upheld the order of the Civil

Judge, which has given rise to filing of this appeal

by way of  special leave by the defendants  in this

Court.

10. So, the short question, which arises for

consideration in this  appeal, is  whether the  High

Court was justified in dismissing the appellants’

writ petition.

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11. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are inclined to allow this appeal and while setting

aside the impugned order remand the case to the

High Court for deciding the writ petition afresh on

merits in the light of the observations made infra.

12. In our considered view,   the need to remand

the case has occasioned because we find that the

High Court did not decide the issue, which was the

subject matter of the writ petition, keeping in view

the law  laid  down by this  Court in the case   of

Krishna Motor Service by its  Partners vs.  H.B.

Vittala Kamath, 1996 (10) SCC 88.

13. In our view, the High Court should have

noticed the aforementioned decision and decided

the question accordingly in the light of law laid

down therein. The High Court unfortunately did not

take note of the said decision and has thus

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committed an error requiring interference of this

Court.

14. It is for this reason, we are of the considered

view that the matter should be remitted to the High

Court for deciding the writ petition afresh on merits

keeping in view the law laid down by this Court in

the case of Krishna Motor Service (supra).

15. In view of the foregoing discussion, the appeal

succeeds and is accordingly allowed. The impugned

order is set aside. The case is remanded to the High

Court for  deciding the  writ  petition,  out  of  which

this appeal arises, afresh on  merits as observed

above.

16. Since we have  formed an opinion to remand

the case to the High Court instead of deciding the

issue for the first time in this appeal on facts, we

refrain ourselves from exercising the issue on

merits.  The High Court  will, therefore,  decide the

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matter strictly in accordance with law uninfluenced

by any observations made  in  the impugned order

and this order.  

17.   Since the matter is quite old, we request the

High Court to dispose of the writ petition as

expeditiously as possible preferably within six

months.

                                     .………...................................J.                                    [ABHAY MANOHAR SAPRE]    

                                      …...……..................................J.

            [DINESH MAHESHWARI] New Delhi; April 04, 2019

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