Bela M. Trivedi, J. - (1.) ALL these appeals arise out of the order dated 10th February 2011 passed by the Additional District Judge No. 3, Jaipur Metropolitan, Jaipur, in Civil Misc. Case No. 36/2010 (hereinafter referred to as the lower court), whereby the lower court has partly allowed the application of the respondent Nos. 1 to 5 (original plaintiffs) seeking temporary injunction under Order XXXIX Rule 1, 2 of C.P.C. C.M.A. No. 2337/2011 has been filed by the appellants Babu Lal and others (original -plaintiffs)against the impugned order. All these appeals having arisen out of the same impugned order, they were heard together and are being decided finally at the admission stage, with the consent of learned counsels for the parties, by this common judgment. The short facts giving rise to the present appeals are that the respondent nos.1 to 5 (original plaintiffs) have filed the suit before the lower court seeking various reliefs against the present appellants and other respondents (original -defendants).The relief's claimed in the suit inter alia are for the decree against the defendants nos. 1 to 31 for the partition of the properties mentioned in Para 17 read with schedules 'KA' to 'CHHA' by metes and bounds, and for the declaration of 1/2 share of the plaintiffs in the said properties. The plaintiffs have also prayed for mandatory injunction directing the defendants Nos. 1 to 31 to act upon the family settlement dated 20.12.07 and to hand -over the possession of the properties to the plaintiffs as per the said settlement, as also sought permanent injunction restraining the defendant nos.1 to 31 from transferring or selling or creating any interest in the properties mentioned in the said schedules 'KA' to 'CHHA', which were Joint Family Properties. The plaintiffs have also sought for the relief against the said defendants for rendition of accounts in respect of the said properties. The respondent Nos. 1 to 5 (the plaintiffs) had also filed an application being Civil Misc. Application No. 36/2010, seeking temporary injunction during the pendency of the suit. The said application was resisted by the concerned defendants by filing their respective written statements/replies. The lower court after hearing the learned counsels for the parties and considering the documents on record, partly allowed the said application by the impugned order dated 10.2.2011, whereby the lower court has restrained the defendant nos. 1 to 31 and 36 to 43 from selling, transferring or creating any substantive charge over the immovable properties mentioned in the schedules 'KA' to 'CHHA', and further directing all the parties to produce periodically the audited or unedited accounts of the companies/partnership firms, managed and controlled by the respective parties. Being aggrieved by the said order, the respective appellants have filed the present appeals.
(2.) ASSAILING the impugned order passed by the lower court, the learned counsel Mr. N.M. Sharma for the appellants M/S Raghuvar India Ltd. (original defendant No. 14), vehemently submitted that the suit of the plaintiffs in the present form is not maintainable in the eye of law, in as much as the suit has been filed by Shri Babu Lal s/o Ram Niwas along with Saurabh Agrotech Pvt. Ltd., which is a company incorporated under the Companies Act and also along with two partnership firms registered under the Partnership Act and by the HUF of Babu Lal, seeking partition of the properties mentioned in the Schedules annexed to the plaint and that too against the set of companies, which have been shown as the assets of the H.U.F. He also submitted that the said plaintiff Babu Lal, though seeking partition of the Joint Family Properties has not impleaded his own sons and other coparceners as parties to the suit and has not included the properties owned and managed by the plaintiffs in the schedules annexed to the plaint. In short, according to Mr. Sharma, when the suit itself is bad for non -joinder of necessary parties and for mis -joinder of the parties and of causes of action, and when the suit is not tenable in the eye of law, the lower court should not have granted any temporary injunction in favor of the plaintiffs. Mr. Sharma further submitted that the order passed by the lower court is thoroughly mis -conceived and if allowed to stand, would cause not only hardship to the appellant companies but also would practically affect the day to day businesses of the said companies. The learned senior counsel Mr. A.K. Sharma appearing for M/S Vijay Solvex Ltd.(original defendant No. 24), in support of the submissions made by learned counsel Mr. N.M. Sharma, submitted that the lower court had not taken into consideration the contentions raised by the concerned defendant in its reply with regard to the partition of Joint Family Properties, which had already taken place in the year 1959, and which was also subsequently ratified by the plaintiff Babu Lal himself on his becoming major. According to learned counsel Mr. Sharma, the appellant company is not only a separate legal entity but also a listed company and, therefore, there was no question of partition of the said company as sought for by the plaintiffs in the suit. Mr. Sharma also referring to the averments made in the plaint, more particularly in Para 12, submitted that even according to the plaintiffs there was no family settlement, with regard to M/s Vijay Solvex or M/S Raghuvar India Ltd., and that the said companies have been included only in the Schedule 'GHA' as if they are the assets of the Joint Family Properties. He also submitted that the lower court had failed to appreciate that the plaintiffs had not been able to show even prima facie that the corpus of the defendant companies was provided by the coparceners of the joint family. The learned senior counsel Mr. N.K. Maloo, appearing for the appellant Niranjan Lal(original defendant no. 1) adopting the arguments of the learned counsel Mr. N.M. Sharma and Mr. A.K. Sharma, further submitted that the H.U.F. Known as M/S Pyare Niranjan Lal was already partitioned in the year 1959 and the effect thereof was also shown in the Income Tax Returns of the said H.U.F. in the subsequent years, and thereafter smaller H.U.F. were created by the concerned coparceners for the purpose of carrying on businesses in the name and style of partnership firms. However, runs the submissions of Mr. Maloo, the lower court had failed to consider the said contentions raised by the concerned defendants and also the documents produced by them. According to Mr. Maloo, the plaintiffs had suppressed material facts by not producing the vital documents pertaining to the partition of properties, which had taken place in the year 1959 and therefore, the application of temporary injunction was required to be dismissed by the lower court on that ground alone. Placing reliance on the judgments of Apex Court more particularly in case of Subodh Kumar and others vs. Bhagwant Namdeorao Mehetre and others, (2007)10 Supreme Court Cases 571, and in case of Sunil Kumar and another v. Ram Prakash and others, AIR 1988 Mr. Maloo has submitted that even if it is assumed that there was a Joint Hindu Family, the defendant Niranjan Lal being the Karta of said HUF, no injunction could have been granted against the Karta of HUF. Learned counsel Mr. Mahendra Goyal for the appellant Daya Kishan (original defendant No. 3) and learned counsel Mr. Amol Vyas for the appellant M/s Pyare Niranjan Lal HUF (original defendant No. 11) have also adopted the arguments of the other counsels appearing for the other appellants and submitted that the impugned order passed by the lower court being illegal and perverse, deserves to be set -aside.
(3.) PER contra, learned senior counsel Mr. R.K. Agrawal for the respondent Nos. 1 to 5,(original -plaintiffs) supporting the impugned order passed by the lower court submitted that the lower court after considering the prima facie case, irreparable injuries likely to be caused to the plaintiffs and the balance of convenience, has passed the impugned order, which is just and proper, and should not be interfered with by this Court. Taking the Court through the various documents which were produced by the plaintiffs before the lower court, Mr. Agrawal has submitted that on 20.12.07, a family settlement had taken place between the Niranjan Lal Data Group, which belonged to the defendants, and Babu Lal Data Group which belonged to the plaintiffs, and that the said settlement was signed by Mr. Vijay Data for N.L.D. Group and by Babu Lal Data for B.L.D. Group. According to Mr. Agrawal, the said settlement was also partly acted upon by the defendant Niranjan Lal and other coparceners and therefore, they can not be permitted to back out from the said settlement. Placing heavy reliance on the decision of the Apex Court in the case of Reliance Natural Resources Ltd. Vs. Reliance Industries Ltd. (2010)7SCC page 1, and in case of Sangram Singh P. Gaekwad and others vs. Shanta Devi P. Gakewad (2005)11 Supreme Court Cases page 314, Mr. Agrawal submitted that though a company incorporated under the Companies Act is a body corporate, in certain situations, its corporate veil can be lifted, and that the suit for partition could be filed against the companies also. Placing reliance upon the decisions of Apex Court in case of Hansa Industries (P) Ltd. and others Vs. Kidarsons Industries (P)Ltd. (2006)8 Supreme Court Cases 531, and in case of Narendra Kante Vs. Anuradha Kante and others, (2010)2 Supreme Court Cases 77, learned counsel Mr. Agrawal submitted that the Family Settlement need not be signed by coparceners and that if a mere memorandum of family arrangement was prepared with regard to the arrangement which had already taken place, such a document did not require registration. He also submitted that the family settlement made by the parties bona fide by making fair and equitable division of the properties amongst various members of the family, must be respected. Mr. Agrawal also relied upon the decision of Apex Court in case of Premlata Nahata v. Chandi Prasad Sikaria (2007)2 Supreme Court Cases page 551, to submit that mis -joinder of parties or of causes of action would not be fatal to the suit and such defects could be cured with the permission of the lower court. According to him the plaintiff No. 1 Babu Lal is also the Director of the plaintiff No. 2 Saurah Agrotech (P) Ltd. and the partner in the plaintiff nos. 3 and 4 partnership firms and also the Karta of plaintiff No. 5 Babu Lal HUF and therefore all have been impleaded as the plaintiffs in the suit, in as much as the facts of the plaintiffs case are intermingled with each other and are dependent upon each other to claim the reliefs against all the defendants. Lastly, Mr. Agrawal, submitted that there being no jurisdictional error committed by the lower court while passing impugned order, the same deserves to be confirmed. Learned senior counsel Mr. K.K.Sharma appearing for the respondent Data Infosys Ltd. (original defendant No. 15) and for Ajay Data Proprietor of Ajay Containers (Original -defendant No. 31) has supported the submissions made by learned senior counsel Mr. R.K. Agrawal, and further relying upon the decision of Apex Court in case of K.K. Modi Vs. K.N. Modi and others, 1998 (3) Supreme Court Cases Page 573, submitted that the family settlement arrived at between two groups belonging to the same family regarding division of assets should not be lightly interfered with by the Courts when it has been substantially acted upon by the parties.;