Ashwani Kumar Mishra, J. - (1.) THIS petition, under Article 227 of the Constitution of India, has been filed challenging an order passed by Additional District Judge, Gorakhpur, dated 28th February, 2015, whereby misc. appeal of the plaintiff has been allowed, and the order of the trial court for return of plaint has been set aside. A further direction has been issued by the appellate court for the proceedings of suit to continue before the court concerned.
(2.) FACTS in brief, which have given rise to this petition, and which are not in dispute that an original suit No. 511 of 2009 has been filed by the respondent No. 2, before the court of Civil Judge (Senior Division), Gorakhpur, for dissolution of partnership agreement, dated 1.7.2003, and for distribution of assets belonging to the firm. In this suit, an objection was taken by the petitioner, under Order 7 Rule 11 of the Code of Civil Procedure, 1908, vide application dated 12th October, 2009, on two grounds. It was, firstly, submitted that the suit itself is barred at Gorakhpur, in view of Section 16 of the Code of Civil Procedure, 1908, and secondly, it was contended that there is an arbitration agreement between the parties, and therefore, on this count also, the suit is not maintainable. It appears that parties thereafter initiated steps to invoke the remedy under the Arbitration Act, and ultimately, matter was taken to Punjab and Haryana High Court for appointment of an arbitrator, under Section 11(6) of the Act of 1996. This apparently was done, because all assets and properties of the firm were situated at Punjab, and some of the parties to the dispute were also residing at Punjab. This application was registered as Arbitration Case No. 127 of 2011, which was decided on 8th February, 2013. The order passed by Hon'ble The Chief Justice of Punjab and Haryana High Court, dated 8.2.2013, is relevant, and as it is not very long, the entire order is reproduced: - "This petition is filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of the Arbitrator in terms of clause 13 of the partnership deed dated 04.07.2003 which is annexed as Annexure A1 to the petition. As per this purported partnership deed, there are nine partners and the shareholding of each of the partners is mentioned specifically in sub para iv of para 7 of the petition. 2. The respondents No. 4 and 6 have filed the reply to this petition contesting the same. It is their submission that the partnership deed is forged document. These respondents have alleged that there was a family settlement arrived at between the parties, namely, six brothers and two sisters and their father on 14.05.2001 and the joint properties were partitioned thereby. According to these respondents, the properties which are situated in Ropar fell in their share. Certain properties which were in Gorakhpur, came to the shares of respondents No. 1 to 3 and the properties which were situated in Nalagarh fell to the share of respondent No. 5. 3. It is not necessary to take note of all these facts in detail because of the reasons that father of the petitioner herein (brother of the respondents No. 4 and 6) has already filed suit in the Court of Civil Judge (Senior Division), Gorakhpur. No doubt, in the said suit, the respondent No. 4 had earlier moved an application under Order 7 Rule 11 CPC for rejection of the plaint on certain grounds. It is stated by learned counsel for the respondents No. 4 and 6 that they are not pressing that application and instead they have even filed the written statement in the said suit as their defence remains the same in that suit also and they are contesting that the alleged partnership deed is the forged document.
(3.) THE central focus of such a suit would be as to whether the partnership deed was in fact executed between the parties or not and other things would follow only on the outcome of this particular issue. Moreover, having regard to the documents which are submitted by learned counsels for either side, it becomes clear that this issue cannot be decided without leading evidence, as it is a waxed issue and determination thereof would need evidence which will have to be led by both the parties. For this reason itself, the present petition obviously cannot be entertained.;