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2007 DIGILAW 781 (MP)

White Ways v. Vijay Choudhary

2007-07-23

SHANTANU KEMKAR

body2007
ORDER 1. By this petition filed under Article 227 of the Constitution of India the petitioner has challenged the order dated 17.3.2007 passed by the Second Additional District Judge, Bhopal in Regular Civil Suit No. 16A/2005 cancelling the written statement filed by the petitioner through its partner Vikram Dawar and refusing permission to Vikram Dawar to defend the suit by holding that he is not a necessary party. 2. The respondents No. 1 to 3 (plaintiffs) filed a suit for eviction against the petitioner partnership firm and the fourth respondent joining them in the suit as defendants No. 2 and 1 respectively on various grounds enumerated under section 12 of the M.P. Accommodation Control Act, 1961 (for short 'Act). The plaintiffs averred that the suit premises is rented for non-residential purpose and the tenant petitioner firm is running its business in the name and style of 'White Ways'. The plaintiffs arrayed the partnership firm White Ways as defendant No.2 through its partner Rajesh Dawar apart from arraying Rajesh Dawar as defendant No.1. 3. On being noticed the defendants filed their separate written statement. The written statement filed on behalf of defendant No.2 firm White Ways was filed by Vikram Dawar without disclosing his status in the firm. In the circumstances the plaintiffs filed an application under section 151 of the Code of Civil Procedure before the trial Court praying cancellation of the written statement and Vakalatnama filed by Vikram Dawar for defendant No.2 firm. The said application of the plaintiffs was opposed by Vikram Dawar on behalf of defendant No.2 firm stating therein that he being partner of the defendant No.2 firm the written statement filed by him on behalf of the firm deserves to be treated as filed for and on behalf of the firm and it cannot be cancelled. In support of his contention that he is partner of the defendant No.2 firm he submitted a certificate issued by the IDBI Bank certifying that the account holder of the IDBI Bank M/s. White Ways is having partnership account and one of its partner is Vikram Dawar. 4. In support of his contention that he is partner of the defendant No.2 firm he submitted a certificate issued by the IDBI Bank certifying that the account holder of the IDBI Bank M/s. White Ways is having partnership account and one of its partner is Vikram Dawar. 4. The trial Court after hearing the parties on the plaintiffs application vide impugned order dated 17.3.2007 allowed the said application filed by the plaintiffs and cancelled (as mentioned in the impugned order) the written statement filed by Vikram Dawar on behalf of defendant No.2 firm White Ways and refused him permission to defend the suit on behalf of the firm. Feeling aggrieved, the petitioner has filed this petition. 5. The petitioner contends that the firm Vanity Apparels is a partnership firm doing the business in the name and style of White Ways in the suit shop and one of the partner of the firm is Vikram Dawar. In support of this contention the petitioner has filed copy of the partnership deed dated 1.4.1995, the description and details about the partners of the said firm in which name of Vikram Dawar is shown as one of the partner of the firm. The petitioner also filed rent receipts to show that the suit shop has been rented out to the firm White Ways and also the certificate issued by IDBI Bank, showing the account number of the defendant No.2 firm and also the name of Vikram Dawar as one of the partners appointed as signatories of the Bank account. Placing reliance on these documents, learned counsel for the petitioner submits that the impugned order passed by the trial Court is ex facie illegal and amounts to depriving the tenant firm to defend the suit and the same if allowed to stand would cause failure of justice. He also contends that any of the partners of the defendant No.2 firm can appear and file written statement on behalf of the partnership firm and it is not the requirement of law that in case a partnership firm is arrayed as defendant through a particular partner, only that partner can be permitted to file the written statement and defend the suit. 6. The respondents No. 1 to 3 plaintiffs contend that in the written statement filed on behalf petitioner of defendant No.2 by Vikram Dawar he has not disclosed his status in the defendant No.2 firm. 6. The respondents No. 1 to 3 plaintiffs contend that in the written statement filed on behalf petitioner of defendant No.2 by Vikram Dawar he has not disclosed his status in the defendant No.2 firm. In the absence of any averments to that effect in the written statement filed by Vikram Dawar, the trial Court has not committed an illegality in cancelling the written statement and refusing permission to Vikram Dawar to defend the suit on behalf of the firm. 7. True it is, in the written statement filed on behalf of the defendant No.2 by Vikram Dawar there is no specific averments that he is a partner of the defendant No.2 partnership firm. However there is no denial of the averments made in reply by the said Vikram Dawar to the application filed by the plaintiffs under section 151 of the Code of Civil Procedure before the trial Court and the averments made in this petition supported by the partnership deed that Vikram Dawar is partner of the defendant No.2 firm White Ways. On the other hand, from the partnership deed and the details of the partners shown in the documents filed along with this petition it is very clear that Vikram Dawar is partner of the defendant No. 2 firm White Ways. 8. In the case of Pokhardas Gabrani v. Sewaram Girdharilal [AIR 1929 Sind 192] in a suit against a firm summons was served on a person as partner in the firm. The partner though he was not served in the individual capacity filed a written statement in his own name and not as representative of the firm. In the circumstances it was held that there was nothing individual in the defence and as such a technical flaw can be corrected by the Court even at argument stage. 9. Thus the written statement filed by Vikram Dawar on behalf of the firm cannot be cancelled merely because there is no averment in the written statement about he being partner of the firm. 9. Thus the written statement filed by Vikram Dawar on behalf of the firm cannot be cancelled merely because there is no averment in the written statement about he being partner of the firm. In the light of the judgment passed in case of Pokhardas Gabrani v. Sewaram Girdharilal (supra) this being a technical flaw deserves to be corrected in the light of unchallenged averments in the reply filed a Vikram Dawar to the application filed by the plaintiffs before the trial Court and the uncontroverted averments made by the petitioner in this petition that Vikram Dawar is partner of the petitioner defendant No.2 firm. The said Vikram Dawar being partner of the defendant No. 2 firm may not have been joined by the plaintiffs in the suit showing him as partner of the firm still he is entitled to file the written statement and defend the suit on behalf of the defendant No.2 firm. Merely because the partnership firm has been made party through other partner it cannot be said that only the partner whose name is shown by the plaintiffs can file written statement and appear in the suit for the firm. 10. In this view of the matter, the impugned order dated 17.3.2007 passed by the Second Additional District Judge, Bhopal is quashed. The written statement filed by Vikram Dawar on behalf of defendant No.2 stands restored and he is allowed to participate and defend the suit filed by the plaintiffs against the defendant No.2 in the capacity of partner of the defendant No.2 partnership firm. 11. In the last learned counsel for the respondents plaintiffs prayed that since the suit is pending since 2005 the trial Court be directed to decide the same at the earliest. The prayer appears to be reasonable. In the circumstances, the trial Court is directed to expedite the final disposal of the suit. 12. The petition is allowed. No orders as to costs. C.C. within seven days.