- (1.) THE petitioners through this writ petition have challenged the orders dated 8.9.2003, 3.12.2003 and 7.1.2004, contained in Annexure Nos. 1 to 3 to the writ petition. The facts giving rise to the present petition, are that firm namely, M/s Dwarika Prasad Agarwal and Bothers (for short' the firm') was constituted consisting of four members, namely, Dwarika Prasad Agarwal, Bishambhar Dayal, Mahesh Prasad Agarwal and Ramesh Chandra Agarwal on 10.4.1972 and the aforesaid firm was registered with the Assistant Registrar, Firms, Societies and Chits, Jhansi having its registered office at 28 Rani Mahal, Jhansi on 15.11.1976. The said firm was also registered in Form -I under the Indian Partnership Act ( for short ' the Act') and continued to run its business. The firm itself was not doing any business, but in fact the partners of the firm in their individual capacity were running separate businesses regarding publication of newspaper from different cities owned by different entities in publishing the newspaper in the name and style "Dainik Bhaskar." These firms were known as Bhaskar Publication and Allied Industries, Pvt. Ltd. at Gwalior managed by Sri Ramesh Chandra Agarwal with majority shares; Bhaskar Graphics, Pvt. Ltd. at Indore managed by Sri Ramesh Chandra Agarwal with majority shares; Writers and Publishers Pvt. Ltd. at Bhopal managed by Sri Ramesh Chandra Agarwal with majority shares. Sri Bhishambhar Dayal Agarwal was publishing the newspaper at Jabalpur, whereas Sri Sanjay Agarwal was publishing the newspaper at Jhansi. It appears that there was some misunderstanding and bickering between the partners, so on 25.11.1987 Mahesh Prasad Agarwal gave a notice under Section 43 of the Act to dissolve the firm. The said notice was replied by Bishambhar Dayal Agarwal by means of letter dated 11.12.1987 stating therein that his notice to dissolve the firm shall be taken as a notice for retirement and he shall be deemed to have retired from the said date. But no reply was given by Mahesh Prasad Agarwal to the aforesaid notice of the Bishambhar Dayal Agarwal. On 28.11.1987 Ramesh Chandra Agarwal filed Civil Suit No.74A of 1987 in the court of Additional District Judge -I, Bhopal as Managing Director of M/s Writers and Publishers Limited against Dwarika Prasad Agarwal and Bishambhar Dayal Agarwal for declaration that plaintiff is the sole owner of business and goodwill of printing and publishing of Dainik Bhaskar from Bhopal and for perpetual injunction restraining the defendants from publishing the newspaper from Jabalpur or any other place. On 30.11.1987 another Civil Suit No.75A of 1987 was filed by Ramesh Chandra Agarwal in the court of Additional District Judge -I, Bhopal against Dwarika Prasad Agarwal, Mahesh Prasad Agarwal and Bishambhar Dayal Agarwal for rendition of accounts and for declaration that the firm stood dissolved in the year 1985 or be declared that it stood dissolved w.e.f. 25.11.1987 and for appointment of receiver. On 6.2.1988 another Suit No.22A of 1988 was filed by Bishabhar Dayal Agarwal in the court of Additional District Judge -II, Raipur seeking declaration that title "Dainik Bhaskar" belonged to Firm Dwarika Prasad Agarwal & Bros. in which an order was passed on 15.2.1988 restraining the defendants therein, including Ramesh Chandra Agarwal and Writers & Publishers Limited, from publishing Dainik Bhaskar from Raipur. On 28.3.1988 Suit No.57A of 1988 was filed by Bishambhar Dayal Agarwal in the Court of Additional District Judge -II, Bhopal seeking declaration that agreement dated 13.3.1985 was null and void. Applications moved under Order XXXIX, Rule -1 and 2 CPC by the Writers & Publishers Limited and Ramesh Chandra Agarwal in both the suits i.e. 74A of 1987 and 75A of 1987 were rejected by the Civil Court on 24.11.1988. In January, 1990, Bishambhar Dayal Agarwal wrote a letter to Dwarika Prasad Agarwal expressing his desire to retire from the firm in case he wanted to induct Hemlata Agarwal as partner he has no objection in that regard and he should be deemed to be separate from the firm from the said date. He also acknowledged that there was nothing due to him from the firm. On 2.2.1990 a fresh partnership deed was executed inducting Kishori Devi, Hemlata and Anil Kaushik as partners and in the said deed, it was narrated that Ramesh Chandra Agarwal, Mahesh Prasad Agarwal and Bishambhar Dayal Agarwal have parted their ways suiting to their convenience without caring about their duties and obligations to the firm, which gave rise to multiplicity of litigations leaving behind Dwrika Prasad Agarwal alone, therefore, with a view to continue the business of the aforesaid firm, the new partners were being inducted. On 10.2.1990 it is alleged that some letter was written by Dwarika Prasad Agarwal to the Assistant Registrar, Firms, Societies and Chits, Jhansi stating therein the change of three partners in the firm, namely, Kishori Devi, Hemlata Agarwal and Anil Kaushik. In the year 1992 some dispute arose between the aforesaid owners as Sudhir Agarwal son of Ramesh Chandra Agarwal started publishing Nav Bhaskar from Jabalpur. Being aggrieved by the said action of Sudhir Agarwal, Bishambhar Dayal Agarwal, who was already publishing Dainik Bhaskar from Jabalpur moved the Jabalpur High Court by way of Writ Petition No.802 of 1992. In the writ petition at High Court level, a settlement was arrived at between the family members of Dwarika Prasad Agarwal, wherein the parties to the settlement divided between themselves territories from where each of them would be entitled to publish newspaper in the name and style "Dainik Bhaskar." It was also decided to dissolve the firm M/s Dwarika Prasad Agarwal & Bros, but in all these proceedings, Dwarika Prasad Agarwal was not a party and neither he was signatory to the compromise. Writ petition filed by Bishambhar Dayal Agarwal was disposed of on 29.6.1992 on the basis of compromise. As and when Dwarika Prasad Agarwal came to know about the aforesaid order, he filed Review Petition bearing no.477 of 1992 before the Jabalpur High Court, which was dismissed on 18.11.1992. Against the said order, Dwarika Prasad Agarwal preferred a Special Leave Petition before the Hon'ble Supreme Court, which was converted into Civil Appeal being CA No.4783 of 1996. Apart from it, Bishambhar Dayal Agarwal also filed Writ Petition (C) No.527 of 1993 under Article 32 of the Constitution of India before the apex Court. On 29.3.1993 an interim order was granted by the apex Court restraining transfer of property of the firm by the parties. During the pendency of proceedings before the apex Court, Dwarika Prasad Agarwal expired on 20.7.1993. Thereafter Kishori Devi and Hemlata Agarwal moved an application for substitution in the aforesaid Special Leave Petition being the legal heirs of Dwarika Prasad Agarwal, which was allowed by the apex Court on 7.1.1994. In the meantime, it is alleged that one registered Will was executed by Dwarika Prasad Agarwal in favour of Kishori Devi. On 19.10.1993, an application for substitution was moved by Kishori Devi in Suit Nos.74A of 1987 and 75A of 1987 and the said suits were got dismissed as withdrawn on 27.10.1993. On 12.9.1995 the firm was reconstituted with the remaining partners, namely, Kishori Devi Agarwal, Hemlata Agarwal and Anil Kaushik. In the said partnership deed, it was indicated that partner Dwarika Prasad Agarwal had expired, therefore, he is no more a partner with the firm and on that assumption and belief, the firm was reconstituted. In the said partnership deed, it was specifically provided in clause (7) that terms and conditions of the partnership business as well as the conditions relating to the relations of the partners not provided for hereinabove and not repugnant hereto shall be the same as are spelled in the partnership deed dated 10.4.1972 and IInd (2nd) of February, 1990 pertaining to the partners thereof. Thereafter, the aforesaid partners of the firm presented Form -VII regarding reconstitution of the firm on the same day to the Registrar, Firms, U.P., Jhansi and the same was accepted by him on 2.3.1996. After induction of the new partners under Section 63 of the Act, nothing came to light as the new inducted partners who were contesting their claim before the Court, never brought it to the notice of the apex Court at any point of time after the death of Dwarika Prasad Agarwal on 20.7.1993 regarding the aforesaid fact. The said induction was never pressed upon and neither executed or impressed against the other partners of the firm informing them that they have retired or have been ousted from the firm and new members have been inducted. On 7.7.2003 the apex Court allowed the civil appeal and quashed the order passed by the Jabalpur High Court, wherein writ petition filed by Bishambhar Dayal Agarwal was disposed of in terms of the settlement dated 29.6.1992 arrived at between the parties and relegated the parties to the same position in which they were immediately prior to the passing of the order dated 29.6.1992. On 4.7.2003, an application was moved by Hemlata Agarwal for change of address of the firm from Jhansi to Ghaziabad before the Deputy Registrar, Jhansi praying therein that change in address of the firm be affected from 3.7.2003 and the said application was allowed by the Deputy Registrar to the effect that change in address be affected from 10.7.2003. After change of the address, the jurisdiction of the firm went under the control of the Deputy Registrar, Meerut. The aforesaid fact came to the knowledge of Mahesh Prasad Agarwal, who was one of the partners of the firm, on the basis of press conference, which was held by Hemlata Agarwal on 8.7.2003, wherein she claimed herself to be the owner of Dainik Bhaskar Daily along with Smt. Kishori Devi and Anil Kaushik as partners. The said news was published in daily newspaper on 9.7.2003 and Smt. Hemlata Agarwal also sent information to the District Magistrates, Bhopal, Indore and Gwalior in this regard. On the basis of the aforesaid publication of news, Mahesh Prasad Agarwal came to know the said fact and applied for inspection of record on 10.7.2003 and obtained the copy of the relevant documents on the said date. Thereafter he filed an application on 18.7.2003 alleging therein that he continues to be the partner of the firm and regarding change of partnership, neither there is any publication in newspaper nor in any official gazette as required under law for change of partners and he has never given any consent for change of address nor that he has retired from the firm. In the said application, it was also stated that Ramesh Chandra Agarwal also continues to be the partner and the change in address has been fraudulently made behind the back of the existing partners and no signatures were obtained on Form -VII of the old partners in order to get their consent. It was also stated that provisions of Section 32(1) and 72 of the Act were violated and without examining the existing records and without confirming that the change was in conformity with the existing documents, accorded the change in the partnership in Form -VII. The change was obtained fraudulently and, therefore, it was prayed that the same may be set aside. Mahesh Prasad Agarwal also moved an application before the Deputy Registrar, Firm, Societies and Chits, Meerut on 18.7.2003 with the similar allegations. On 19.7.2003, an ex -parte order was passed by the Deputy Registrar, Meerut staying the operation of reconstitution dated 2.3.1996 and thereafter on 7.8.2003 issued notices to the opposite parties for filing reply with supporting documents and the next date was fixed as 18.8.2003. Hemlata Agarwal filed an application before the Registrar, Firms, Societies and Chits, Lucknow praying therein that the entire record of the case be summoned from Meerut to Lucknow and the order dated 19.7.2003 be kept in abeyance, pursuant to the said application, the Registrar, Lucknow called for the record from the Deputy Registrar, Meerut on 27.8.2003. Hemlata Agarwal filed a detailed reply to the notice dated 19.7.2003 on 4.9.2003. The Registrar, Lucknow dismissed the application moved by Hemlata Agarwal on 8.9.2003 holding therein that amendment in the partnership deed obtained by Hemlata Agarwal by way of Form -VII was illegal and further directed for enquiry as to how such a defective Form -VII was accepted in violation of Sections 31, 32 and 72 of the Act. On 20.10.2003 Hemlata Agarwal filed review application against the order dated 8.9.2003, in which notices were issued and the case was adjourned for 45 days and the order dated 8.9.2003 was stayed for 45 days. Thereafter, upon application made by Hemlata Agarwal, the date of hearing was fixed on 4.1.2004 and an information was sent by the Registrar, Lucknow to Mahesh Prasad Agarwal indicating the next date for hearing as 4.1.2004. On 3.12.20003, the Registrar, Lucknow has also informed that the order dated 20.10.2003 whereby the effect of order dated 8.9.2003 was stayed, is hereby vacated. On 16.12.2003, Hemlata Agarwal moved an application for recall of the order dated 3.12.2003 to the extent of vacation of stay, upon which the Registrar, Lucknow on 30.12.2003 directed the opposite parties not to do any correspondence on behalf of the firm. On 7.1.2004, the Registrar, Lucknow dismissed the review application moved by Hemlata Agarwal against the order dated 8.9.2003 and further directed to initiate proceedings under Section 70 of the Act against Hemlata Agarwal and others for fraudulently holding out themselves as partners of the firm. Thereafter, Hemlata Agarwal filed Writ Petition bearing C.M.W.P. No.9099 of 2004 before this Court at Allahabad claiming herself to be partner of M/s Dwarika Prasad Agarwal & Bros. against the orders dated 8.9.2003, 3.12.2003 and 7.1.2004. In the said writ petition notices were issued, but no interim order was granted. During the pendency of the said petition at Allahabad, Kishori Devi, who claims herself to be a partner of the firm, filed the present writ petition before this Bench at Lucknow against the same orders i.e. 8.9.2003, 3.12.2003 and 7.1.2004, in which an interim order was grated by this Court on 23.7.2004. Thereafter, counsel for the petitioners stopped appearing in the Court and ultimately the interim order was vacated on 11.11.2005. In the meantime, Ramesh Chandra Agarwal moved an application for impleadment in the aforesaid writ petition, on which the Court issued notices. On 28.2.2008 writ petition filed at Allahabad bearing no.9099 of 2004 was dismissed for non -prosecution. On 22.4.2008, the present petition was dismissed on the ground that under Chapter XXII Rule 7 of the Allahabad High Court Rules, no second writ petition for the same cause of action and on the same facts is maintainable. On 21.10.2009, Mahesh Prasad Agarwal, who used to oppose the illegal and unauthorized actions of Hemlata Agarwal and petitioner no.2, was won over by Hemlata Agarwal and Kishori Devi and on their behest he made an application to the Registrar, Lucknow to recall his order dated 8.9.2003 and 7.1.2004, which were passed purportedly on the complaint of Mahesh Prasad Agarwal earlier. In the said application, Mahesh Prasad Agarwal alleged that the earlier complaint was filed by him under the undue influence of Ramesh Chandra Agarwal in which false averments were made. He also took totally contrary stand in comparison to his earlier stand, which was taken before this Court as well as before the apex Court. On 5.3.2010, the Registrar, Lucknow dismissed the application moved by Mahesh Prasad Agarwal. On 9.3.2010, petitioner no.2 filed an application bearing Civil Misc. Application No.22997 of 2010 for recalling the order dated 22.4.2008 after a delay of about two years. On the very next day i.e. on 10.3.2010, Mahesh Prasad Agarwal filed reply to the recall application admitting all the averments and consenting for recall. Ramesh Chandra Agarwal filed an application for dismissal of the recall application in April, 2010. A supplementary affidavit was filed by Kishori Devi Agarwal, wherein she brought on record two correspondences of the year 1990 to prove the change in partnership. The aforesaid two correspondences were alleged to be certified copies issued by the office of the Registrar, Firms, Societies and Chits purportedly written by late Dwarika Prasad Agarwal on 10.2.1990 informing the Registrar about the change in the constitution of partnership, whereby Kishori Devi Agarwal, Hemlata Agarwal and Sri Anil Kaushik were inducted into partnership. However, both the letters have been found to be forged by the Registrar upon examination of record and it was found that the alleged certified copy issued is also different. This Court while hearing the matter, passed an order on 15.2.2011 directing the then Registrar, Arvind Narayan Mishra to submit an affidavit as to the genuineness of the certified copies of letter dated 10.2.1990, partnership agreement of 1990, Form -VII of 1996 filed by the petitioner no.2 and others with the averment that these documents were duly filed with the Registrar of Societies, but the same are now missing from the records of the Registrar. On 14.3.2011, Sri Arvind Narayan Mishra filed his affidavit in compliance of the order of this Court, in which it was categorically stated that the signature shown on the certified copy of letter dated 10.2.1990 is forged and this document is not available in the record of the office. It was also stated that other documents relating to submission of Form -VII and correspondence relating to change of address is also forged because the seal of society used on the certified copies is different than the one which was in vogue at the relevant time. Thereafter, judgment was reserved by this Court on 27.5.2011. In the meantime, Kishori Devi and Hemlata Agarwal filed a Suit bearing No.CS (OS) No.1663 of 2011 before the Delhi High Court praying for a declaratory relief declaring them to be partners of the firm along with other reliefs. Judgment in this case was delivered by this Court on 21.9.2011 allowing the writ petition and remanding the matter back to the Registrar to pass afresh order after affording personal hearing to all the parties and further directing the Registrar to obtain copies of documents from the parties if they are not available in the official file and after examining its genuineness give a clear cut finding on it. Mahesh Prasad Agarwal also filed supplementary and counter affidavits on 20.9.2004 and 20.12.2006. Against the judgment of Hon'ble Single Judge, Special Appeal Nos.711 of 2011 and 731 of 2011 were preferred by Ramesh Chandra Agarwal and Kishori Devi, which were allowed vide judgment and order dated 15.11.2011 and the matter was remitted back to the Hon'ble Single Judge for deciding the matter afresh and the application filed by Ramesh Chandra Agarwal for impleadment moved in the writ petition was also allowed. Hence this petition.
(2.) SUBMISSION of learned counsel for the petitioners is that the parties will stand relegated to the same position prior to 29.6.1992 in view of the judgment of the apex Court dated 7.7.2003. The judgment of the apex Court dated 7.7.2003 was not brought to the notice of the Registrar while application was moved for setting aside the order dated 2.3.1996 by means of which Form -VII filed by the petitioners was accepted. He has further submitted that the Registrar, Firms, Societies and Chits has no power under Section 64 of the Act to adjudicate upon the lis between the partners, which exclusively falls within the domain of the competent Civil Court. The order passed by the Registrar without affording any opportunity of hearing to all the concerned parties is not sustainable in the eye of law and the parties cannot choose a particular forum to get their claim adjudicated after the judgment of the apex Court and it will amount to violation of the judgment of the apex Court. It is submitted that Ramesh Chandra Agarwal happens to be a stranger of the partnership firm, as such he cannot meddle in the affairs of the firm. The order passed by the Registrar is without jurisdiction and is a nullity being ab initio. It is also submitted that judgment passed by the apex Court will be binding upon the parties and they are supposed to act in accordance with the said judgment and any deviation from the same, will render the entire exercise illegal and void. What cannot be done directly, cannot be allowed to be done indirectly. The proceedings before the Registrar are clear abuse of process of the Court. Ramesh Chandra Agarwal has not challenged the order passed by the Registrar up till now and the Suit filed by him bearing no.298 -A of 2003 was dismissed for non -prosecution. The parties are supposed to pursue the Suit in stead of getting the matter adjudicated from the Registrar. The order of the apex Court was not placed before the Registrar and the agreement dated 29.6.1992 was relied upon and made the basis for passing the impugned orders. Counsel for the opposite party no.5, on the other hand, has submitted that petitioners have played fraud upon the Court by filing the present petition on 20.7.2004 during the pendency of writ petition bearing no.9099 of 2004 filed at Allahabad by Hemlata Agharwal, daughter of petitioner no.2, challenging the same orders, which have been challenged in this petition. Hemlata Agarwal alleges herself to be the partner of the firm and if she has filed writ petition on behalf of the firm, then it will be binding upon the other partners as well, as contemplated under Sections 21 and 22 of the Act. The writ petition was rightly dismissed in default as it will amount to second writ petition and no whisper has been made regarding pendency of the writ petition filed at Allahabad when this writ petition was filed here before this Bench, as such present writ petition is liable to be dismissed with exemplary costs. It is submitted that the petitioners got their name recorded surreptitiously and fraudulently in Form -VII without obtaining the signatures of the existing partners, which was necessary under law. Apart from it, no publication was made as required under Section 72 of the Act for recording change of partners in the Official Gazette and neither any notice was published in the newspapers in this regard. The petitioners by committing forgery before the Registrar got their name recorded in Form -VII behind the back of the answering opposite parties. It has further been submitted that there was no consent in admitting the petitioner no.2, Hemlata Agarwal and Anil Kaushik as partners of the firm at the time when alleged partnership deed dated 2.2.1990 was made. Mahesh Prasad Agarwal colluded with the petitioners and his collusion is apparent from the fact that when restoration application was moved by petitioner no.2 on 9.3.2010, he proceeded to file reply to the said application on the next date i.e. 10.3.2010 admitting the claim of the petitioners and agreeing for restoration. Submission is that Kishori Devi, Hemlata Agarwal, Mahesh Prasad Agarwal, Sanjay Agarwal son of Mahesh Prasad Agarwal have assigned all their rights, title and interest to Suresh N. Vijay by way of assignment deed dated 24.2.2010 for a consideration of Rupees One Crore through cheques. He has further submitted that after this assignment, Mahesh Prasad Agarwal moved an application on 10.3.2010 readily agreeing for restoration of the writ petition. After the assignment has been made, the petitioners have lost their right to pursue the proceedings and their right has come to an end as contemplated under Section 29 of the Act as the assignee only gets right to receive the profits from the firm in accordance with derived share of the assignor. The writ petition, therefore, at the behest of Kishori Devi is not maintainable and it is liable to be dismissed. He has further submitted that Kishori Devi happens to be the second wife of Dwarika Prasad Agarwal and she has no legal status, as according to the partnership deed dated 10.4.1972 only the legal heirs can be inducted as a partner in the firm. He has also submitted that when the partnership deed was executed on 2.2.1990, there was no consent of Mahesh Prasad Agarwal or Ramesh Chandra Agarwal and even if it is accepted for the sake of arguments that Bishambhar Dayal Agarwal resigned then he is continuously claiming his right and asserting that he continues to be the partner of the firm, the procedure for retirement has never been followed as contemplated under Sections 31 and 32 of the Act and, therefore, no partner shall be deemed to have retired. It is also submitted that Form -VII, which was submitted, did not contain the signatures of the existing partners and the deed dated 2.2.1990 stipulates that other partners have parted their ways suiting to their convenience, but it was not mentioned as to in what manner they have retired. The firm cannot be dissolved as according to the terms of the deed dated 10.4.1972, only partners can retire and the Act contemplates the procedure for retirement and if the said procedure has not been followed, then any of the partner cannot be deemed to have retired. Apart from it, the partnership deed dated 2.2.1990 was never brought to light and never brought on record in any litigation either before the Jabalpur High Court or before the apex Court or before the Deputy Registrar. Therefore, these documents are forged documents and reliance cannot be placed on them. Dwarika Prasad Agarwal himself could have said in the proceedings before the Jabalpur High Court or before the apex Court that new partners have been inducted and even after the death of Dwarika Prasad Agarwal on 20.7.1993 the aforesaid fact was not brought before the apex Court when substitution was moved by Kishori Devi claiming herself to be the wife of Dwarika Prasad Agarwal. Change in constitution of the firm was made public on 8.7.2003 when press conference was made by Hemlata Agarwal and the said news was published in the daily newspaper on 9.7.2003 and then only it came to the knowledge of Mahesh Prasad Agarwal, who filed an application for cancellation of the said entry, which was made fraudulently. The aforesaid deed and induction were never made public prior to 9.7.2003 and never pressed upon. Kishori Devi and Hemlata Agarwal being mother and daughter, were well in the knowledge regarding filing of the writ petition at Allahabad and subsequent writ petition before this Bench with the same averments, same language and even with the same verbatim or repetition of the same paragraphs, which leads to the conclusion that it was well within the knowledge of Kishori Devi that writ petition filed at Allahabad was pending and no interim order was granted in it, but in spite of that the present writ petition has been filed before this Bench and an interim order was obtained by concealing the aforesaid fact. Therefore, it amounted to gross abuse of process of the Court and the writ petition filed on behalf of Kishori Devi is not maintainable at all. After gaining the knowledge, Mahesh Prasad Agarwal moved an application for setting aside the forged entry made in Form -VII on 2.3.1996 by means of application dated 17.7.2003. He, therefore, submits that even if the judgment of the apex Court would have been brought to the notice of the Registrar, the orders of the Registrar could not have changed as the controversy before the apex Court was in respect of the compromise entered into between three partners in the Jabalpur High Court on 29.6.1992. The validity of the said compromise was to be considered by the apex Court, but there was no dispute with regard to induction of the partners in the firm at the behest of Dwarika Prasad Agarwal nor he brought it on record nor Kishori Devi, who was substituted as one of the party, asserted that there has been change in the Constitution of the firm and new partners have been inducted. The procedure prescribed for change of address under Section 60 of the Act was not followed and, therefore, the change of address made at the behest of petitioner no.3 and others was with a view to take undue advantage by getting the firm transferred to the jurisdiction of the Deputy Registrar, Meerut. The procedure for induction of partners as contemplated under Section 31 of the Act has also not been followed and the consent of the existing partners was not taken at the time when the petitioner no.2, Smt. Hemlata Agarwal and Anil Kaushik were inducted as partners. The procedure for retirement has been provided under Section 32 of the Act that with the consent of all the other partners and in accordance with an express agreement by the partners, or where the partnership is at will, by giving notice in writing to all the other partners of his intention to retire can retire. None of the procedure was followed even in respect of Bishambhar Dayal Agarwal. At the instance of Hemlata Agarwal, the proceedings were transferred to the Registrar, Firms, Societies and Chits, Lucknow and the record was summoned from the Deputy Registrar, Meerut. She filed a detailed reply to the notice dated 17.7.2003 and her objection was rejected as it was found that amendment in the partnership deed obtained by Hemlata Agarwal by way of Form -VII was illegal and further directed for enquiry as to how such a detective Form -VII could have been accepted in violation of Sections 32 and 72 of the Act. The review filed by Hemlata Agarwal was also dismissed. Learned counsel also submits that fraud vitiates the most solemn decision and the fraud also vitiates everything which has been done in an illegal manner. In the case in hand, since fraud was committed by the petitioners, therefore, the Registrar was fully justified in proceeding on the basis of the complaint of Mahesh Prasad Agarwal as contemplated under Rule 7 of the Uttar Pradesh Indian Partnership Rules, 1933 (for short 'U.P. Rules'). The language employed in the Gujarat Rules and in the U.P. Rules are altogether different. In the U.P. Rules, the right for adjudication has been given. If it is found by the Registrar, he may in his discretion institute such inquiries or make such investigation in respect of any matter in which he feels that it is necessary for the proper performance of his duties and the administration of the Act and in particular when a dispute arises amongst the several partners of a firm, the Registrar may in his discretion call upon any of the partners or all of them to produce any original deed, document or such other evidence as he thinks fit in order to ascertain the rights of the respective parties. If Section 64 of the Act is read along with Rule 7 of the U.P. Rules, then the action of the Registrar cannot be faulted in any manner as the requirement of Section 64 of the Act is that in order to bring the entry in the Register of Firms relating to any firm into conformity with the documents relating to that firm filed under this Chapter, the Registrar shall have power at all times to rectify any mistake. Therefore, such power can be exercised by the Registrar under Section 64 of the Act with a view to eradicate and rectify the said fraudulent acts, which have been committed by any of the partner, which are not in conformity with the documents relating to that firm. Form -VII of the petitioners, which was accepted on 2.3.1996, was not at all in conformity with the documents of the firm and the entry made was a fraudulent entry, which has rightly been set aside by the Registrar by examining the records and giving opportunity to the petitioners and also making enquiry into the record. The entire exercise by means of which names of the petitioner no.2 and others were entered on the basis of Form -VII, was done in a concealed manner and the other remaining partners were never apprised or made known about the said change in the partnership and without their consent, none of the partner could have been inducted. The then Registrar, Arvind Narayan Mishra was directed to file his personal affidavit and he has filed an affidavit stating therein that the documents particularly the certified copies of the letter dated 10.2.1990 are forged and have not been found to be issued by the office of the Registrar as the seal of office of Registrar used on the certified copies is different than the one which was in vogue at the relevant time and the officer concerned has also certified that his signatures are not there. Sri Munni Lal, Finance Controller, who was posted at the relevant time, has also certified that the certified copies do not contain his signature and at the alleged serial number, some other document was issued. He has further submitted that the Registrar does not have the power of review and, therefore, the application for review has rightly been rejected by him. There is no provision under the Act for deemed retirement of a partner and the partner can be treated to have retired only in accordance with the provisions of the Act. Hence, a writ of certiorari cannot be issued in order to revive an illegal order as Form -VII was illegally accepted without following the procedure prescribed under law and without publication of the same in the Official Gazette. Even if the parties are relegated to the stage prior to 29.6.1992, then in the meantime, whatever changes have taken place, those cannot be undone. Mahesh Prasad Agarwal and Kishori Devi both have filed suits; one in the court of Civil Court, Jhansi and the other in the Delhi High Court and they can seek their declaration as claimed by them in their respective suits. No case was set up before the apex Court nor before the Jabalpur High Court by Dwarika Prasad Agarwal to the effect that a change in the constitution of the firm has taken place. Submission is that by virtue of the order of the High Court the firm stood dissolved and once the firm stood dissolved, then no Form -VII could have been accepted in respect of a dissolved firm. The apex Court has only passed an interim order restraining the parties from alienating the property.
(3.) I have heard counsel for the parties and perused the record. Against the judgment of Hon'ble Single Judge dated 21.9.2011. two special appeals were preferred and in the special appeals the impleadment application of Ramesh Chandra Agarwal was allowed and the case was remanded by setting aside the order of Hon'ble the Single Judge by observing that the controversy whether Ramesh Chandra Agarwal is still a partner or not and what is the constitution of the existing partnership firm, and whether on a notice given under Form -VII, the change of constitution, said to have been made on the application of Ms. Hemlata Agarwal, was valid or not, and all such facts needed consideration by the learned Single Judge and only thereafter a finding could have been recorded as to whether the order passed by the Registrar is valid or not.;