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2001 DIGILAW 521 (CAL)

Biren Dasgupta v. Ajit Kumar Laha

2001-08-20

Prabir Kumar Samanta

body2001
JUDGMENT Prabir Kumar Samanta, J.: The plaintiff/opposite parties filed an Ejectment suit No. 709 of 2000 in the Presidency Small Causes Court at Calcutta against M/s. Kine Pictures as defendant No.1 and Nimish Ray and Sambhu Nath Ghosh as defendant Nos. 2 & 3 respectively being the partners of the said firm. Evidently, by an agreement of tenancy dated 7th December, 1968 the aforesaid defendant Nos. 2 & 3 along with Shri Chittaranjan Mukherjee and Nirmal Banerjee both since deceased were inducted as tenants in the suit premises for the purpose of carrying on a partnership business under the name and style of M/s. Kine Pictures, the defendant No. 1. Said Chittaranjan Mukherjee and Nirmal Banerjee died before filing of the suit. It has also not been disputed that the said defendant Nos. 2 & 3 have also died in the meantime. 2. In these state of affairs, the applicant/petitioner namely Birendra Dasgupta made an application under Order 1 Rule 10(2) read with section 151 of the Code for being added as a party defendant to the said suit for ejectment as being one of the partners of M/s. Kine Pictures, the defendant No.1. It was alleged by him that upon reconstitution of the said partnership business amongst defendant No.2 and the applicant he was inducted as a partner in the partnership business. By an order dated 20th April, 2001 the said petition was rejected. On the other hand, the plaintiffs/opposite parties filed an application under Order 22 Rule 4A of the Code for the purpose of appointing the Administrator General and Official Trustee as a party to the suit for ejectment to represent the Estate of the deceased partners as all the partners of the said partnership business had died in the meantime. By an order dated 18th May, 2001 the said petition was also rejected. Both the aforesaid orders dated 20th April, 2001 and 18th May, 2001 have been impugned in this revisional application. 3. In these state of things it is necessary to consider the legality and validity of the order dated 20th April, 2001. Because if the said order is sustained then only the question will crop up for consideration of the order dated 18th May, 2001 otherwise occasion will not arise for consideration of the same. 3. In these state of things it is necessary to consider the legality and validity of the order dated 20th April, 2001. Because if the said order is sustained then only the question will crop up for consideration of the order dated 18th May, 2001 otherwise occasion will not arise for consideration of the same. Mr.Priyabrata Mukherjee, learned Advocate appearing on behalf of the applicant/ petitioner contended that in view of the partnership agreement dated 6.11.1995 between defendant No.2 since deceased and the applicant/petitioner, the said partnership business stood reconstituted and as such the applicant/petitioner is both a necessary and proper party for being impleaded in the said suit for ejectment against the said firm and it's partners. The learned court therefore exercised his jurisdiction illegally in not impleading the applicant/petitioner as a party defendant to the said suit. The reasoings given by the court that the partnership firm is not a legal entity and therefore induction of a partner upon reconstitution of the partnership business amounted to subletting of the premises to the newly inducted partner were absolutely upon misconception of law. 4. Mr. Sudhis Dasgupta, learned Senior Advocate appearing on behalf of the landlord/opposite parties supported the impugned order dated 20.4.2001 by contending that in the absence of the original deed of partnership agreement between the partners of the firm it cannot be said that the said partnership agreement provided for inclusion of a new partner and as such the applicant cannot claim to be added as a party defendant in this ejectment suit. I am unable to accept such argument at this stage. Because the stage has not yet reached to finally decide the questions whether in view of the partnership agreement between the partners anyone of them was entitled to bring in a new partner or not in the said partnership business or in the facts and circumstances of the case whether such reconstitution of partnership business was lawful or not. The said questions will be decided in the suit inasmuch as for a decision on such questions, the presence of the applicant/petitioner is also necessary. 5. Evidently, defendant No.1 is the partnership firm. The defendant Nos. 2 & 3 the partners of defendant No.1 have died in the meantime. The said questions will be decided in the suit inasmuch as for a decision on such questions, the presence of the applicant/petitioner is also necessary. 5. Evidently, defendant No.1 is the partnership firm. The defendant Nos. 2 & 3 the partners of defendant No.1 have died in the meantime. The applicant/ petitioner alleged that by way of execution of a partnership agreement dated 6.11.95 the said partnership was reconstituted upon induction of the applicant as a partner in the said partnership business and such reconstitution was registered with the Register of Firms. The documents further disclosed go to show that upon such reconstitution trade licences were obtained from the Calcutta Municipal Corporation in respect of the partnership firm with the applicant as one of the partners. Therefore, at this stage, it cannot be said that the applicant has no nexus to the subject matter of the suit. This is more so, in view of the suit filed by the partnership firm with the applicant as one of the partners of the said firm for declaration of it's tenancy right in respect of the suit premises against the plaintiff/opposite parties. The contention of Mr. Dasgupta, that since such a suit is pending so also the applicant is not a necessary party in the present suit for ejectment because all questions relating to his right as a partner in the said firm as also the right of tenancy of the partners of the firm with the applicant being one of the partners will be decided therein also cannot be accepted inasmuch as the instant suit for ejectment is a comprehensive one where the question of eviction will be decided upon decision on all the questions that would be decided in the said declaratory suit. Otherwise, an anomalous situation would be created in the event of success of the applicant in his declaratory suit. Because there would be a decree for eviction of the firm in the absence of any partner of the said firm. This anomalous situation will undoubtedly bring about multiplicity of proceedings. 6. Mr. Otherwise, an anomalous situation would be created in the event of success of the applicant in his declaratory suit. Because there would be a decree for eviction of the firm in the absence of any partner of the said firm. This anomalous situation will undoubtedly bring about multiplicity of proceedings. 6. Mr. Dasgupta, referred to section 14(1)(b) of the West Bengal Premises Tenancy Act, 1956 which provides that after the commencement of the said Act no tenant shall, without the previous consent in writing of the landlord, transfer or assign his right in the tenancy or any part thereof and accordingly contended that the applicant cannot also be added as a party as he is an assignee of the tenant partner of the said firm. This contention is also not tenable at this stage. Because if the tenancy is in favour of the firm, or for the purpose of carrying on the partnership business in the name and style of the defendant No.1 then any reconstitution of the firm without effecting the identity of the firm may not cause any assignment of the tenancy. Reference may be made to the decision of the Supreme Court reported in AIR 1990 SC 1892 (Raunak Ram vs. Pishori Singh) as cited by Mr. Priya Brata Mukherjee, learned Advocate for the petitioner. The plaintiffs/ opposite parties in this suit for ejectment admitted that a monthly tenancy was created in favour of the partners of the said firm to enable them to carryon their partnership business under the name and style of the defendant No. 1. Thus, the question whether the applicant is not at all entitled to be inducted as a partner in the said partnership business because of the original partnership agreement between the co-partners or for that matter the said applicant is also not entitled be inducted as such even upon reconstitution of the partnership by and between the original partner and the applicant is a matter to be decided on evidence in the suit itself and it cannot be said at this stage that the applicant has no semblance of partnership right in the partnership firm and therefore, is neither a necessary nor a proper party as a partner of the said firm. 7. The Division Bench decision of this Court reported in AIR 1977 Calcutta 209 (Jagat Enterprises vs. Anup Kumar Daw & Ors.) as cited by Mr. 7. The Division Bench decision of this Court reported in AIR 1977 Calcutta 209 (Jagat Enterprises vs. Anup Kumar Daw & Ors.) as cited by Mr. Dasgupta has also no application in the facts and circumstances of this case. In that case it was held that in a suit for ejectment by the lessor against a lessee, a sublessee is not entitled on his own to be added as a party in the eviction suit against the lessee in his own right. Here the applicant did not apply for being added as a party in the eviction suit as being a sub-lessee. Rather he applied as being a tenant as a partner of the defendant No. 1. On the face of the pleading that the tenancy was created in favour of the partners of the defendant No. 1 for the purpose of carrying on the business of the said defendant No.1, the other Single Bench decision cited by Mr. Dasgupta reported in AIR 1984 Calcutta 228 W.K. Dutta vs. Sm. Nita Madan and Anrs.) similarly has no application in this case. There. in a suit for ejectment against the wife. the petition by the husband for impleading him as a defendant on the allegations that he and not his wife was the real tenant was rejected. In the said suit the wife did not contend that she was not a tenant of the suit premises but her husband was a tenant. The case in hand is distinguishable inasmuch as the question did not arise for determination whether the defendant No.2 or the applicant/ petitioner is the real tenant of the suit premises. Similarly, the Supreme Court decision cited by Mr. Dasgupta reported in (1998)7 SCC 608 (Mahammed Kasam Baji Gulambhai vs. Bakerali Fatehali) does not have any application in the facts and circumstances of this case. The distinguishing feature of that case is that the original tenancy was created in favour of a person as a sole proprietor of a shop. The tenancy agreement prohibited subletting. The said sole proprietor brought in partners in his business and ultimately retired from the partnership without having any concern over right, title and interest in the new partnership. In such circumstances, it was held that there was sub-letting by the said sole proprietor. 8. In all these views. The tenancy agreement prohibited subletting. The said sole proprietor brought in partners in his business and ultimately retired from the partnership without having any concern over right, title and interest in the new partnership. In such circumstances, it was held that there was sub-letting by the said sole proprietor. 8. In all these views. I am of the opinion that the learned court below acted illegally and with material irregularity in its exercise of jurisdiction in refusing to add the applicant as a party defendant in the said ejectment suit. Accordingly, the impugned order dated 20th April, 2001 rejecting the petition filed by the applicant under Order 1 Rule 10(2) of the Code is set aside. This Revisional Application is thus, allowed. The said petition filed by the applicant/petitioner is allowed. He shall be added as a party defendant to the ejectment suit. 9. Since, both the learned Advocate appearing on behalf of the respective parties in this revisional application did not argue on the merits of the other impugned order dated 18th May, 2001 rejecting the petition filed by the plaintiffs/ opposite parties under Order 22 Rule 4A of the Code and in view of the order as above passed in the petition under Order 1 Rule 10(2) of the Code I am not inclined to interfere with the same in exercise of this revisional jurisdiction. The said order dated 18th May, 2001 is thus not interfered with. This Revisional Application is accordingly disposed of. 10. If urgent xerox certified copy of this order is applied for by the parties, the same should be given expeditiously. Revisional application disposed of.