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Orissa High Court
Narayan Naik vs Ranjita Naik & Ors. …. Opposite Party … on 18 July, 2025
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Jul-2025 16:59:40
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.6010 of 2025
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).
Narayan Naik .... Petitioner(s)
-versus-
Ranjita Naik & Ors. .... Opposite Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. Jaydeep Pal, Adv.
For Opposite Party (s) : Mr. Amit Prasad Bose, Adv.
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-15.07.2025
DATE OF JUDGMENT:-18.07.2025
Dr. S.K. Panigrahi, J.
1. This Writ Petition is preferred by the Petitioner challenging order dated
05.02.2025 passed by the learned Senior Civil Judge (Commercial
Court), Bhubaneswar in ARBP Case No.92 of 2024.
I. FACTUAL MATRIX OF THE CASE:
2. The present Petitioner and late Satyabrata Naik were partners of a
partnership firm in the name and style of “Jyotsna Alankar” having its
principal place of business at Plot No.635, Holding No.68, Ground
Floor, At- Darghabazar, PO- Buxi Bazar, Cuttack, District- Cuttack. The
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Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Jul-2025 16:59:40Partnership Firm was constituted on 22nd October, 2020 and the
Partnership Deed contains the following relevant clauses:
“2. That the firm shall be deemed to have been constituted
with effect from 22.10.2020 and shall be a Partnership at
Will.”
“9. That the shares of the partners in both Profit and Loss
shall be EQUAL.”
“15. That the firm shall not be dissolved upon the death of
any partner and shall continue to be carried on with heir,
successor or legal representative of the deceased partner.”
“16. That in case of dispute, the matter shall be referred to a
single Arbitrator selected and appointed by both the
partners and his/her decision shall be final and binding to
both the partners.”
3. In the meantime, Late Satyabrata Naik expired on 10.08.2024, leaving
behind the Opposite Parties as his legal heirs and successors in interest.
The Opposite Parties, by virtue of Clause 15 of the Partnership Deed as
reproduced above, claim to have stepped into the shoes of Late
Satyabrata Naik to continue the Partnership Firm.
4. However, it is alleged by the Opposite Parties that the present Petitioner
was causing obstruction and hindering their access to the books of the
Firm, apart from restricting their entry into the place of business and
generally causing mischief to personally gain. Thereafter, relying on
Clause 16 of the Partnership Deed, the present Opposite Parties vide
Notice dated 11.9.2024 sought the appointment of a sole arbitrator for
adjudicating the disputes between the Parties.
5. Upon receiving no response to the Notice dated 11.9.2024, the present
Opposite Parties approached the Court of the learned Senior Civil Judge
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Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Jul-2025 16:59:40
(Commercial Court), Bhubaneswar vide ARBP 92 of 2024 under Section
9 of the A&C Act, seeking the following interim reliefs:
“It is therefore prayed that your honour may graciously be
pleased
a. To preserve the business establishment i.e. Jyostna
Alankar, Daraghabar, Cuttack and necessary order in
this regard be passed for its interim custody.
b. Injunct the Respondent No.1 from obstructing the
Petitioners to enter into the business premises and to look
after the business affairs of the firm and to take any
coercive action as against the Petitioners.
c. Cost of the proceeding be awarded in favour of the
Petitioners.
d. Any other reliefs as deem fit and proper be awarded
in favour of the petitioners.
Xx xx xx..”
6. In response to the same, the present Petitioner filed an application
under Order VII Rule 11 of the Civil Procedure Code and Section 2(1)(e)
of the A&C Act for return of the plaint under Section 9 of the A&C Act
preferred by the Opposite Parties broadly under the following grounds:
a. The present Opposite Parties have not placed any document
on record to show that they are the legal heirs of Late
Satyabrata Naik.
b. The present Opposite Parties are not “party” to the Partnership
Deed and as such they have no cause of action to invoke
arbitration.
c. The petition under Section 9 of the A&C Act preferred by the
Opposite Parties is filed contrary to Order VI Rule 15(A) of
CPC.
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Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Jul-2025 16:59:40
7. The present Opposite Parties filed their objection to the application
under Order VII Rule 11 of the Civil Procedure Code preferred by the
Petitioners broadly under the following grounds:
a. The Order VII Rule 11 of the Civil Procedure Code is not
applicable in a proceeding under Section 9 of the A&C Act.
b. None of the limited grounds under which an Order VII Rule 11
CPC can be entertained are satisfied by the present Petitioner.
c. The present Opposite Parties are the legal heirs of Late
Satyabrata Naik and it was highlighted that the present
Petitioner is not disputing them being legal heirs but has
merely said that no document has been filed with the petition
showcasing the same, which is a procedural defect and can be
cured. It is not anybody’s case that the present Opposite
Parties have no locus standi. The Petitioner and Late
Satyabrata Naik are brothers and as such, the Petitioner is
relying on frivolous grounds to vex the process of law adopted
by the present Opposite Parties.
8. In fact, the order dated 05.02.2025 passed in ARBP Case No.92 of 2024,
the learned Senior Civil Judge (Commercial Court), Bhubaneswar
rejected the application under Order VII Rule 11 of the CPC preferred
by the present Petitioner on merits, after holding that such application
was maintainable in a petition under Section 9 of the A&C Act. The
petition under Section 9 of the A&C Act was, accordingly, put up for
hearing on objections on 27.02.2025.
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Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Jul-2025 16:59:40
9. Being aggrieved, the present Petitioner has approached this Court
seeking setting aside of order dated 05.02.2025 in ARBP Case No.92 of
2024 and also seeking a direction for allowing his application filed
under Order 7 Rule 11 of CPC to reject the petition filed by the present
Opposite Parties.
10. Now, the broad facts leading to the instant Petition have been laid
down, this Court shall endeavour to fully summarise the contentions of
the Parties and the broad grounds that have been urged to seeking the
exercise of this Court’s power.
II. PETITIONER’S SUBMISSIONS:
11. It is submitted by learned counsel for the Petitioner that the impugned
order is liable to be set aside as the Opposite Parties are not parties to
the Partnership Deed and, therefore, not parties to the Arbitration
Agreement. The Petitioner contends that upon the death of one partner,
the partnership firm shall stand dissolved by operation of law under
Section 42(c) of the Partnership Act.
12. It is further contended that the Partnership Deed mentions that the
place of business as Cuttack, therefore, the petition before the learned
Senior Civil Judge (Commercial Court), Bhubaneswar lacks jurisdiction.
III. OPPOSITE PARTIES’ SUBMISSIONS:
13. Per contra, it is submitted by the learned Counsel for the Opposite
Parties that the learned Senior Civil Judge (Commercial Court),
Bhubaneswar has considered the petition of the present Petitioner on
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Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Jul-2025 16:59:40
merits and given the bar under Section 8 of the Commercial Courts Act,
this Court ought to be slow to interfere with the same.
14. It is further submitted that the present Opposite Parties are known to
the Petitioner, as they belong to the same family, therefore, these
petitions are mere delay tactics to frustrate, vex and harass the Opposite
Parties. The Opposite Parties are legal heirs of the Late Satyabrata Naik
and in light of the clear stipulation in Clause 15 of the Partnership Deed,
they are deemed to be parties to the Deed. In furtherance of which, it is
contended, that they were well within their rights to exercise their
option of arbitration.
IV. ISSUES FOR CONSIDERATION:
15. Having heard the parties and perused the materials available on record,
this court has identified a singular issue that has to be determined
which have emerged contentiously during the course of the hearing and
is germane to the decision in the lis at hand;
A. WHETHER THE LD. SR CIVIL JUDGE (COMMERCIAL COURT),
CUTTACK HAS CORRECTLY ADJUDICATED THE PETITION
UNDER ORDER VII RULE 11 PREFERRED BY THE PRESENT
PETITIONER?
16. This Court is first required to keep in view the fact that the
impugned order has been passed by the commercial Court. In view of
the provisions contained in Section 8 of
the Commercial Courts Act, 2015, there is a bar against entertaining
the revision against an interlocutory order. Section 8 ofthe Act, 2015
reads as under:
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Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Jul-2025 16:59:40“8. Bar against revision application or petitionagainst an in
terlocutory order.
Notwithstanding anything contained in any other law for
the time being in force, no
civil revision application or petition shallbeentertained agai
nst any interlocutory order of a Commercial Court,
including an order on the issue of jurisdiction, and any such
challenge, subject to the provisions of section 13, shall be
raised only in an appeal against the decree of
the Commercial Court.”
17. The provisions of Section 8 of the Commercial Courts Act, 2015 cannot
operate as an absolute bar to exercise of the power under Article 227 of
the Constitution of India. Section 8 despite its initial non-obstante
clause, cannot operate as an absolute bar to the exercise of the power of
judicial review by High Courts, which is conferred by the Constitution
of India under Article 227 thereof, since the 2015 Act is a subordinate
legislation under the Constitution, the latter being the ground norm of
the Indian legal system, cannot obstruct the powers of this Court under
Articles 226 and 227 of the Constitution of India.
18. A creature of the Constitution of India cannot act in negation of the
provisions of the Constitution of India. This Court is reminded of Surya
Dev Rai v. Ram ChanderRai1, concerned with the impact of the
amendment in Section 115 of the CPC brought about by the amendment
of the CPC with effect from 1st July, 2002. In the wake of the said
amendment, a question arose, whether on such amendment
restricting/limiting the orders of the subordinate courts with respect to
1
(2003) 6 SCC 675
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Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Jul-2025 16:59:40
which a revision application under Section 115 of the CPC could be
preferred to the High Court, an aggrieved person was completely
deprived of the remedy of judicial review under Article 227 also. It was
held, that curtailment of revisional jurisdiction of the High Court did
not take away and could not have taken away the constitutional
jurisdiction of the High Court to issue a writ of certiorari to a civil court,
nor was the power of superintendence conferred on the High Court
under Article 227 of the Constitution taken away or whittled down. It
was further held that the said power continued to exists, untrammelled
by the amendment in Section 115 CPC and remained available to be
exercised, subject to the rules of self-discipline and practice, which were
well settled. Similarly, in State of Gujarat v. Vakhatsinghji Vajesinghji,
Vaghela2, Jetha Bai and Sons, Jew Town, Cochin v. Sunderbas
Rathenai3, State of H.P. v. Dhanwant Singh4 and Union of
India v. Major General Shri Kant Sharma5 it was held that the
legislature cannot take away the power of superintendence of the High
Court under Article 227 of the Constitution over all Courts and
Tribunals which are within the territories in relation to which the High
Court exercises its jurisdiction. Rather, in L. Chandra Kumar v. Union of
India6, judicial review including under Article 227, was held to be a
basic feature of the Constitution, even beyond the realm of
amendability and Clause 2(d) of Article 323A and Clause 3(d) of Article
2
AIR 1968 SC 1481
3
(1988) 1 SCC 722
4
(2004) 13 SCC 331
5
(2015) 6 SCC 773
6
(1997) 3 SCC 261
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Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Jul-2025 16:59:40
323B, to the extent excluded the jurisdiction of the High Court and
Supreme Court under Articles 226/227 and 32 of the Constitution with
respect to matters falling within the jurisdiction of the Courts and
Administrative Tribunals referred to therein, were held to be
unconstitutional.
19. The Parliament has, mandated that no
civil revision application or petition shall be entertained against
the interlocutory order of Commercial Court. The Parliament has taken
care to provide that an interlocutory order on the issue of jurisdiction
also cannot be made the subject matter of challenge and any challenge
to such order shall be raised only in an appeal against the decree
of Commercial Court. Having regard to the legislative object and the
intent of the legislature in barring the remedy of revision, which is
otherwise available to a party in civil proceedings, the exercise of writ
jurisdiction under Article 227 of the Constitution of India, though not
ousted, yet needs to be invoked by the limited nature of the said
jurisdiction, lest the legislative object of proscribing revision would be
defeated if the legality, propriety and correctness of every order passed
by the Commercial Court is examined in exercise of the supervisory
jurisdiction under Article 227 of the Constitution of India.
20. Thus this petition under Articles 226 and 227 of the Constitution of
India with respect to orders of the Commercial Courts at the level of the
District Judge is maintainable and the jurisdiction and powers of the
High Court have not been affected in any manner whatsoever by
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Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Jul-2025 16:59:40
Section 8 of the Commercial Courts Act. However, this Court shall
endeavour to exercise restrain unless the matter warrants interference.
21. Now this Court shall examine the merits of the Petition.
22. This Court is aware of the fact that the High Court and the Supreme
Court has time and again undertaken the exercise of adjudicating upon
the question whether or not an application under Order 7 Rule 11 CPC
can be moved in relation to a pending petition under the A&C Act.
Therefore, this Court does not consider it apposite to delve into the
maintainability of Order 7 Rule 11 CPC in a petition under Section 9 of
the A & C Act, but instead find it more important to focus on the merits
of the present challenge.
23. Since the issue in this appeal pertains to the correctness or otherwise of
the impugned order refusing rejection of the plaint, at this stage, I deem
it necessary to refer to Order VII Rule 11 of the Code which deals with
the grounds for rejection of a plaint:
“11. Rejection of plaint. – The plaint shall be rejected in the
following cases-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff,
on being required by the Court to correct the valuation
within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint
is written upon paper insufficiently stamped, and the
plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the Court,
fails to do so;
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Date: 21-Jul-2025 16:59:40
(d) where the suit appears from the statement in the plaint
to be barred by any law:
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provision of
rule 9:
Provided that the time fixed by the Court for the correction
of the valuation or supplying of the requisite stamp-paper
shall not be extended unless the Court, for reasons to be
recorded, is satisfied that the plaintiff was prevented by any
cause of an exceptional nature for correcting the valuation
or supplying the requisite stamp-paper, as the case may be,
within the time fixed by the Court and that refusal to extend
such time would cause grave injustice to the plaintiff.”
24. In T. Arivandandamv. T.V. Satyapal7, the Supreme Court while
examining the aforesaid provision has held that the trial court must
remember that if on a meaningful and not a formal reading of the plaint
it is manifestly vexatious and meritless in the sense of not disclosing a
clear right to sue, it should exercise the power under Order VII Rule 11
of the Code taking care to see that the ground mentioned therein is
fulfilled.
25. The object of the said provision was laid down by the Supreme Court in
Sopan Sukhdeo Sable v. Assistant Charity Commissioner8. Similarly, in
Popat and Kotecha Property v. State Bank of India Staff Association9,
the Supreme Court has culled out the legal ambit of Order VII Rule 11
of the Code.
7
(1977) 4 SCC 467
8
(2004) 3 SCC 137
9
(2005) 7 SCC 510
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Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Jul-2025 16:59:40
26. It is trite law that no particular plea has to be considered, but the whole
plaint has to be read. As was observed by the Apex Court in Roop Lal
Sathi v. Nachhattar Singh Gill10, only a part of the plaint cannot be
rejected and if no cause of action is disclosed, the plaint as a whole must
be rejected. Similarly, in Raptakos Brett & Co. Ltd. v. Ganesh
Property11, it was observed that the averments in the plaint as a whole
have to be seen to find out whether clause (d) of Rule 11 Order VII of
the Code is applicable.
27. It was further held with reference to Order VII Rule 11 of the Code in
Saleem Bhai v. State of Maharashtra12, that the relevant facts which
need to be looked into for deciding an application thereunder are the
averments in the plaint. The trial court can exercise the power at any
stage of the suit i.e. before registering the plaint or after issuing
summons to the defendant at any time before the conclusion of the trial.
For the purposes of deciding an application under clauses (a) and (d) of
Order VII Rule 11 of the Code, the averments in the plaint are germane;
the pleas taken by the defendant in the written statement would be
wholly irrelevant at that stage.
28. In R.K. Roja v. U.S. Rayudu13, it was reiterated that the only restriction
is that the consideration of the application for rejection should not be on
the basis of the allegations made by the defendant in his written
statement or on the basis of the allegations in the application for
10
(1982) 3 SCC 487
11
(1998) 7 SCC 184
12
(2003) 1 SCC 557
13
(2016) 14 SCC 275
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Date: 21-Jul-2025 16:59:40
rejection of the plaint. The court has to consider only the plaint as a
whole, and in case the entire plaint comes under the situations covered
by Order VII Rules 11(a) to (f) of the Code, the same has to be rejected.
29. In Kuldeep Singh Pathania v. Bikram Singh Jaryal14, the Apex Court
observed that the court can only see whether the plaint, or rather the
pleadings of the plaintiff, constitute a cause of action. Pleadings in the
sense where, even after the stage of written statement, if an application
filed, in a given situation the same also can be looked into to see
whether there is any admission on the part of the plaintiff. In other
words, under Order VII Rule 11, the court has to take a decision looking
at the pleadings of the plaintiff only and not on the rebuttal made by the
defendant or any other materials produced by the defendant.
30. In an application under Order VII Rule 11 of the Code, a plaint cannot
be rejected in part. This principle is well established and has been
continuously followed since the 1936 decision in Maqsud Ahmad v.
Mathra Datt & Co.15. This principle is also explained in another
decision of the Supreme Court in Sejal Glass Ltd. v. Navilan Merchants
Private Ltd.16, which was again followed in Madhav Prasad Aggarwal
v. Axis Bank Ltd.17.
31. In summation, Order VII Rule 11 of the CPC confers upon Courts the
jurisdiction to summarily dismiss a plaint at any juncture of the
proceedings if it fails to articulate a legitimate cause of action or is
14
(2017) 5 SCC 345
15
AIR 1936 Lah 1021
16
(2018) 11 SCC 780
17
(2019) 7 SCC 158
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Date: 21-Jul-2025 16:59:40
precluded by statutory provisions. This procedural mandate
serves to obviate frivolous and vexatious litigation, thus conserving
precious judicial resources. The Supreme Court has elucidated the
import of this provision in Azhar Hussain v. Rajiv Gandhi18. In the
application of this rule, as expounded in Geetha v. Nanjundaswamy19
and evaluated in Hardesh Ores (P) Ltd. v. Hede & Co.20, wherein it was
held that the Court must scrutinize the plaint in its entirety, accepting
the averments therein as prima facie true. This authority is exercisable
at any stage of the suit, as succinctly reiterated in Saleem
Bhai v. State of Maharashtra21.
32. It is trite in law that if clever drafting has created the illusion of a cause
of action, it has to be nipped at the bud. However, this Court, upon a
bare perusal of the averments made in the plaint is not of the prima
facie opinion that the same lacks in making out a cause of action or
suffers from any of the 6 infirmities available to the present Petitioner in
a petition under Order VII Rule 11.
33. Where no provision is made in the Partnership Deed between the
partners for the duration of their partnership, or for the determination
of their partnership, the partnership is a ‘partnership at will’. In the
present case, the same has been specifically mentioned in the
Partnership Deed as well at Clause 2.
18
1986 Supp SCC 315
19
2023 SCC OnLine SC 1307
20
(2007) 5 SCC 614
21
(2003) 1 SCC 557
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Date: 21-Jul-2025 16:59:40
34. Section 42(C) of the Indian Partnership Act, clearly stipulates that a
Partnership shall be dissolved upon death of a partner “subject to the
contract between the parties”. The intent of the Parties entering into the
contract is paramount. In the present case, the Partnership Deed at
Clause 15 provides for further non-automatic determination due to
death of a partner by stating that “the firm shall not be dissolved upon the
death of any partner and shall continue to be carried on with heir, successor or
legal representative of the deceased partner”.
35. However, this Court does take note of the fact that, it is now a settled
position of law that this introduction of legal heirs is not automatic. The
surviving partner and the legal heirs have to enter into a
reconstituted/amended Partnership Deed for this Clause to have any
effect in law. The same having not been done, given the tense
relationship between the parties, is another dispute which is referable to
arbitration as the Partnership Deed clearly uses the word “shall”.
36. This Court, finds no merit in the present Writ Petition and does not
deem it an appropriate case to exercise its jurisdiction. The Ld. Sr. Civil
Judge (Commercial Court), Bhubaneswar has not made any error in law
that would warrant interference.
V. CONCLUSION:
37. In the above backdrop of the case, the Writ Petition is dismissed. The
Learned Senior Civil Judge (Commercial Court), Bhubaneswar shall
proceed with the application under Section 9 of the A&C Act preferred
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by the Opposite Parties. The Parties shall cooperate with prompt
adjudication so as to enable early resolution of their dispute.
38. No order as to costs. Ordered accordingly.
39. Interim order, if any, passed earlier stands vacated.
(Dr. S.K. Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 18th July, 2025/
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