I.   EXECUTIVE SUMMARY

1.   At present, the lis only relates to the alleged sale agreement of 50% share of another partner against some valuable consideration. This is the core issue and dispute between the parties which needs to be adjudicated by the Trial Court. No doubt, under Order VII Rule 7, CPC, the plaintiff is obligated to state specifically the relief which he claims either simply or, in the alternative, it is further explicated that the plaintiff does not need to ask for general or other relief which may always be given as the Court may deem just, as if it had been asked for, and the same rule shall apply to any relief claimed by the defendant in his written statement.

2.   Whereas the exactitudes of Order VII Rule 8 make it clear that where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they shall be stated, as far as may be, separately and distinctly. Equity and justness vindicates and gives a reason for refraction of the rules of procedure, especially, where no particular stipulation of law is desecrated or outraged, but it is found more conducive to foster substantial justice between the parties with judicious mindfulness of the state of affairs ingathered succeeding to the institution of the lawsuit which may have rational impact of rights and entitlement.

3.   Hence, in such situations, the court can take cautious cognizance of the later vicissitudes of fact and law also, to mould the relief in order to advance the cause of justice.

4.   The learned High Court has discussed all the material facts of the case, and there is no illegality or perversity in the impugned judgment which requires any interference by this Court. As a result of the above discussion, this Civil Petition is dismissed and leave is refused.

5. Also refer to Bold and Bold cum Underlined Important matters in the DETAILS area infra.

II.   DETAILS

A.  Case Reference & History

1.   Further to KQU --------------, being an important matter, we would inform you about SCP order (Attachment COQC 649.1) in the ensuing paragraph, with emphasis in bold & Underline for quick reading.

2.   This Civil Petition for leave to appeal is directed against the judgment dated 22.11.21 passed by the learned High Court of Sindh, Circuit Court, Hyderabad, in II^nd Appeal No.70/2021, by dint of which the  order dated 29.10.20, passed by VIII Senior Civil Judge, Hyderabad, rejecting the plaint in F.C Suit No.523 of 2020 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (“CPC”), and the order affirmed by the judgment and decree dated 6.8.21 passed by the learned IXth Additional District Judge/MCAC-I, Hyderabad, in Civil Appeal No.142 of 2020 were set aside and the matter was remitted to the Trial Court to be decide on merits.

3.   According to the facts narrated in the memo of civil petition, the respondent No.1 filed the civil suit for specific performance of contract, recovery, and permanent injunction against the petitioner. A registered Partnership Deed was executed on 15.4.13 between Abdul Qayoom and Mrs. Zareen Imtiaz for running the business of assembling-cum manufacturing of Motorcycles, Rickshaws, Tricycles, Import, Export, and trading other commodities in the name and style of Haji Motors, SITE Hyderabad. The aforesaid partners, by mutual consent, retired from the partnership firm and such deed of retirement, dated 15.9.15, was executed and registered before the Registrar of Firms. Thereafter, the petitioner and respondent No.1 mutually agreed to run above mentioned business and executed another Partnership Deed on 16.9.15 before the Registrar of Firms, whereby the respondent No.1 was appointed as the managing partner and was fully authorized to look after, manage, supervise, administer, and control all of the affairs of the partnership business.

4.   However, after some time, the petitioner agreed to sell her 50% share in the partnership to the respondent No.1 and entered into an agreement dated 23.9.19 against the total sale consideration of Rs 5,00,00,000 (Rupees five crores). The respondent No.1 asserted in the suit that he already paid Rs 2,50,00,000 (Rupees two crores and fifty lakhs), and the remaining amount was to be paid on 20.12.19 in compliance of the sale agreement for which he arranged different pay orders, but the petitioner requested him to delay the sale transaction on account of her husband’s illness, who eventually died on 17.1.20.

5.   Since the petitioner failed to perform her part of the contract, hence the respondent No.1 filed the civil suit. The petitioner/defendant filed the written statement along with an application under Order VII Rule 11, CPC. The Trial Court rejected the plaint, and this order was also affirmed by the Appellate Court. However, the Second Appeal was allowed by the High Court and the matter was remanded with directions given to the Trial Court to decide the suit on merits.

B.    Learned Counsel Petitioner Submissions

1.   The learned counsel for the petitioner argued that the learned High Court failed to consider that the Civil Court had no jurisdiction to decide the dispute with regard to the transfer of share or the sale/purchase of share in view of Section 5 of the Companies Act, 2017 (“Act”). He further averred that the learned Trial Court rightly rejected the plaint in the suit filed for specific performance of contract and injunction. It was further contended that the learned High Court wrongly held that the suit did not fall under the Act.

2.   It was further avowed that the High Court failed to decide the jurisdictional issue of whether the suit for specific performance of agreement for selling share and execution of deed through Nazir was maintainable. In fact, without properly adverting to the order of the Civil Court and the Appellate Court, the High Court allowed the second appeal and remanded the matter through the impugned judgment which is against both law and facts and is liable to be set aside.

C.   SCP Deliberation

1 to  27 

D.   SCP Conclusion

1 to  4

E.   SCP Decision

1.   At present, the lis only relates to the alleged sale agreement of 50% share of another partner against some valuable consideration. This is the core issue and dispute between the parties which needs to be adjudicated by the Trial Court. No doubt, under Order VII Rule 7, CPC, the plaintiff is obligated to state specifically the relief which he claims either simply or, in the alternative, it is further explicated that the plaintiff does not need to ask for general or other relief which may always be given as the Court may deem just, as if it had been asked for, and the same rule shall apply to any relief claimed by the defendant in his written statement.

2.   Whereas the exactitudes of Order VII Rule 8 make it clear that where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they shall be stated, as far as may be, separately and distinctly. Equity and justness vindicates and gives a reason for refraction of the rules of procedure, especially, where no particular stipulation of law is desecrated or outraged, but it is found more conducive to foster substantial justice between the parties with judicious mindfulness of the state of affairs ingathered succeeding to the institution of the lawsuit which may have rational impact of rights and entitlement.

3.   Hence, in such situations, the court can take cautious cognizance of the later vicissitudes of fact and law also, to mould the relief in order to advance the cause of justice.

4.   The learned High Court has discussed all the material facts of the case, and there is no illegality or perversity in the impugned judgment which requires any interference by this Court. As a result of the above discussion, this Civil Petition is dismissed and leave is refused.

III.   FURTHER DETAILS & SERVICES 

Should you require any clarification or explanations in respect of the above or otherwise, or require Partnership or Companies Law Income Tax, Federal & Provincial Sales Tax or Withholding Tax Advisory, Statement or Return Filing or Review services, or related accounting matters like the above, please feel free to email Mr Amsal at amsal@kasbati.co with CC to info.kasbati@professional-excellence.com. Your Goodself may continue to get other services from your current Tax & Legal Advisors.

Best regards for Here & Hereafter
Asif S Kasbati (FCA, FCMA & LLB)

Managing Partner 

Kasbati & Co (1400+ Tax, Levies, Companies, Economy, Inflation, HR, Banking, Finance, etc

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