Chhotelal Pyarelalthe Parenership Firm
& Ors Vs. Shikharchand [1984] INSC 129 (27 July 1984)
BHAGWATI, P.N.
BHAGWATI, P.N.
MUKHARJI, SABYASACHI (J)
CITATION: 1984 AIR 1570 1985 SCR (1) 268 1984
SCC (4) 343 1984 SCALE (2)125
CITATOR INFO :
F 1989 SC 865 (3)
ACT:
Central Provinces and Berar Letting of Houses
and Rent Control Order 1949, Clause 13(3) (vi) and (vii)-Eviction Application
against partnership firm in the firm name as respondent-Whether
maintainable-Non-joinder of partners- Whether mis-description and can be
corrected.
Code of Civil Procedure, 1908,O.30-Whether
applies to proceedings under C.P. and Berar Letting of Houses and Rent Control
Order, 1949.
HEADNOTE:
In an eviction application, filed by
respondent- landlord against the appellant-a partnership firm under Clause
13(3) (vi) and (vii) of the Central Provinces and Berar Letting of Houses and
Rent Control Order, 1949 (HRC Order for short) the appellant raised a
preliminary objection that the application against the partnership firm was not
maintainable without joining its partners as respondents. The High Court
ultimately held that such an application for eviction was maintainable. Hence
the appeal to this Court.
Allowing the appeal and remitting the case
back to the Rent Controller,
HELD: (1) It is only by virtue of the
provisions of Order 30 of the Code of Civil Procedure that a firm can sue and
be sued in its own name without the partners being impleading co-nominee. But,
since the Code of Civil Procedure does not apply to proceedings under the HRC
Order, no application for eviction under HRC order can be maintained against a
firm in the firm name. [270D-E] (2) The firm is merely a compendious name for
the partners constituting it and an eviction application filed under HRC Order
against a partnership firm without joining any partner constituting the firm as
a respondent to the application would be merely a case of mis-description of
the respondents to the application and this Mis-description can be corrected at
any stage of the proceedings. [270E-F] (3) In the instant case, the Court
allowed the respondent to amend the title of the original application by adding
the names of the partners of the appellant firm and remitted the case back to
the case Rent Controller for early disposal on merits. [270H; 271A]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 3027 of 1984 Appeal by Special leave from the Judgment and Order dated the
9th day of April, 1984 of the Bombay High Court in W.P. No. 51 of 1979.
U.R. Lalit and Mrs. J. Wad for the
Appellants.
V.A. Bobde and A.G. Ratnaparkhi for the
Respondent.
The Judgment of the Court was delivered by
BHAGWATI, J. The respondent filed an application under clauses 13 (3) (vi) and
(vii) of the C.P. and Berar Letting of Houses and Rent Control Order of 1949
(hereinafter referred to as HRC Order) to evict petitioner No. 1 firm of M/s.
Chhotelal Pyarelal. The respondent alleged that the firm was a tenant in
respect of the premises and eviction of the firm was sought on the ground of
bona fide requirement of the respondent for the purpose of his occupation under
paragraph (vi) as also for the purpose of making essential repairs under
paragraph (vii) of Clause 13(3). The firm of Chhotelal Pyarelal raised a
preliminary contention that no application could be maintained against a
partnership firm and such an application was liable to be rejected. This
contention ultimately came to be considered by a learned single Judge of the
High Court at Nagpur. The learned single Judge being under the impression that there
was still operative a judgment of another single Judge of the High Court taking
the view that such an application against a partnership firm was not
maintainable, referred this question to a larger Bench. This question
accordingly came up before a Division 270 Bench of the High Court. It was
pointed out before the Division Bench that undoubtedly a view was at one time
taken by a learned single Judge that an application for eviction against a
partnership firm was not maintainable but this view was over ruled by a
Division Bench of the High Court in a Letters Patent appeal filed against that
decision. The Division Bench accordingly held that an application for eviction
under the HRC Order was maintainable against a partnership firm without joining
any partner constituting the partnership firm as a respondent to the
application.
This view taken by the Division Bench is
assailed in the present appeal filed by the firm of M/s. Chhotelal Pyarelal
with special leave obtained from this Court.
Now, there can be no doubt that since the
Code of Civil Procedure does not apply to proceedings under the HRC Order, no
application for eviction can be maintained against a firm in the firm name. The
firm is merely a compendious name for the partners constituting it and it is
only by virtue of the provisions of Order 30 of the Code of Civil Procedure
that a firm can sue and be sued in its own name without the partners being
impleaded co-nominee. It is therefore clear that the firm of M/s, Chhotelal
Pyarelal could not be sued in the firm name by the respondent in so far as the
application for eviction under the HRC Order was concerned.
But we agree with the Division Bench of the
High Court that this cannot by itself result in the dismissal of the
application. It would be merely a case of mis-description of the respondents to
the application and this mis-description can be corrected at any stage of the
proceedings. There can be no doubt that the partners of the firm are before the
Court though in a wrong name.
The learned counsel appearing for the
respondent has, therefore, applied to us for leave to amend the cause title of
the original application by adding the names of the partners of the firm of M/s
Chhotelal Pyarelal as respondents along with the firm of M/s Chhotelal Pyarelal
and carrying out necessary consequential amendments in the body of the
application. We allow the application for amendment and remit the case back to
the Rent Controller so that he may dispose it of on merits. The respondent will
carry out the amendment in the application for eviction within two weeks from
the date of receipt of this Order by the Rent Controller and the newly added
respondents will file their written statement in answer to the 271 application
for eviction within a further period of four weeks thereafter. The Rent
Controller will then proceed to dispose of the application for eviction as
expeditiously as possible and in any event before the expiration of a period of
6 months. There will be no order as to costs of the appeal.
M.L.A. Appeal allowed.
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