The opposite party have filed a civil suit against me and has been successful in obtaining exparte temporary injuction against me on the the very day of filing the suit (i.e on 27 May2015). Notice were served upon us and we filed our written statement along with reply to the injunction application. The Plaintiffs have relied upon a partnership retirement, dissolution and coversion into proprietory concern deed (this is the title of the deed)(which is a forged and a fabricated document which has never been signed by me) and have filed a photocopy of the same and on the strength of the photo copy of this document the court granted exparte injuction order in their favour. They filed a list of documents on which their suit was based, along with the plaint where they have clearly mentioned this deed. In the original plaint and in the list of documents annexed with the plaint they have nowhere mentioned that they are not in the possession of this original copy of the alleged deed. They have claimed my retirement from the partnership firm (which is in business of running cold storage) and have converted the firm into proprietary concern. He has been filing the income tax returns as proprietor of the firm since then.
My advocate moved the application under order 7 rule 11, 14 wherein he mentioned that the plaintiffs have not filed the original deed along with the plaint. My Advocate also mentioned that no such deed has ever been executed by me. So the plainfiffs be directed to produce the original deed relied upon or else the plaint be rejected.
But the opposite party in rely to this application said that the court at this stage need to go through the fact mentioned in the plaint. Its not necessary to file original documents at the time of filing the plaint. So the plaint cannot be rejected on this ground alone.
The court accepted their contention and passed an order that the suit cannot be rejected at this stage but the original of the alleged deed which has now become a matter of evidence would be summoned at the time of evidence.
But later the plaintiffs succeeded in getting their plaint amended and the amendment was that the original copy of the alleged deed is with me(defendant) and I had kept the original with me and provided only the photocpy to the Plaintiffs. The court again allowed this amendment inspite of our objetion.
My Question is whether such amendment means that the court has given him the permission to lead secondary evidence and will this photocopy serve the purpose of the original copy?.
Should I appeal against this amendment order in High Court?
Some important additional facts.
The firm was registered on 30/08/1996 with the registrar of Firms under partnership act 1932 with initially 4 partners including me and my father,
A few months later 2 partners retired from the aforesaid firm. But no intimation was given to the Registrar of the firm about the change in the contitution of the Firm.
Now the same firm was continued by me and my father. Later after few days the opposite party along with his father joined the same firm. Again, no intimation was given about their admission to the registrar of firms. Admittedly the same firm has continued except that no intimation was ever given to the registrar of the firm. The deed contains arbitration clause.
My name and my fathers name is still in the registrar of firm. The name of 2 partners who later joined the firm is not been shown in the registrar of the firm.
My partner have shown my retirement from 01/04/2005. !!!. I was not getting any share of profit or loss from the firm for all this period. In fact I have not received a single penny since then.Now the question is that if they allege that I have retired from 01/04/2005, they have not paid any amount to me. That means how is it possible that a person retires from a firm having without getting any consideration though my Capital amount was higher than the Capital of the opposite party on 31/03/2005.
There is one strong point in my favour...
They have shown my retirement from 01/04/2005. The deed mentions on the top of it that it has been made and entered into on 01/04/2005. And signed and delivered on 01/04/2005.
And when they got the plain amended, they mentioned in the said amendment that the original were taken away by me on 01/04/2005 and I provided the Plaintiffs with the photocopy of the alleged deed.
But the date of the purchase of stamp paper (written at the back) is 06/01/2006. And I have obtained the certified copy of the sale register of the vendor of the stamp paper from the ADM office.
Sir, if any partner who has not participated in the business for the last 10 years, who was never given the profits (or loss) from the firm but at the same time he is a partner in writing, his name is still their in the registrar of firms, and he has never signed any retirement or dissolution deed, and has never received any amount towards his share of capital at the the time of dissolution(as alleged), simply the other partner has been filing income tax returns as proprietor without any valid dissolution, makes him the propritor of the firm (cold storage)....