Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 2987 (ALL)

Amarjeet Singh v. Bhupendra Singh

2017-12-19

RAJAN ROY

body2017
JUDGMENT : Rajan Roy, J. Heard Shri T.P. Singh, learned Senior Advocate assisted by Shri Sidharth Nandan and Shri Fareed Ahmad for the petitioner, Sri M.P. Yadav for the opposite parties and Shri Shishir Pradhan and Shri Anurag Srivastava, learned counsel for the applicants seeking impleadment. 2. This is a petition under Article 227 of the Constitution of India challenging the order of the Additional District Judge in Rent Control Appeal No. 0000006/2013 and the order of the Prescribed Authority under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction Act) of the Act, 1972 (For short 'the Act, 1972') allowing the application of the landlord for release of the tenanted premises for his genuine and bona fide need. 3. The only ground raised by Shri T.P. Singh, learned Senior Advocate appearing for the petitioner is that it is the partnership firm by the name and style "M/s Singh Tyre" which was the tenant of the premises in question, but, only one of the partners who is the petitioner herein Amarjeet Singh was arrayed as a defendant, therefore, the proceedings before the Courts below are a nullity and suffer from non-joinder of necessary and proper parties. In this regard he relied upon a recent judgment of the Supreme Court rendered on 02.02.2017 in Special Leave to Appeal (C) No. 823/2015; Richard Lee v. Girish Soni and Anr., wherein, according to him it was held that even though all the partners of a firm are not necessary parties from the point of view of the eviction petitioners, but, a Court has a duty to see whether the presence of the proper parties would facilitate the complete determination of the matter in dispute. 4. The contention of the learned Senior Advocate was that specific objection was taken in this regard in the written statement which was repelled firstly by the Prescribed Authority and thereafter, by the Appellate Court contrary to the legal position in this regard, therefore, the judgments impugned were liable to be set-aside. 5. 4. The contention of the learned Senior Advocate was that specific objection was taken in this regard in the written statement which was repelled firstly by the Prescribed Authority and thereafter, by the Appellate Court contrary to the legal position in this regard, therefore, the judgments impugned were liable to be set-aside. 5. It is not out of place to mention that one Harjeet Singh and Smt. Jasbir Kaur his wife have filed an application for impleadment under Order 1, Rule 10 C.P.C. in these proceedings before the High Court claiming themselves to be the partners of the aforesaid firm "M/s. Singh Tyre" of which the petitioner herein was allegedly one of the partner, they being the two other partners having a 90% partnership as against 10% of the petitioner in the said firm. However, on a perusal of the affidavit filed in support of the said application surprisingly enough Harjeet Singh just before paragraph 1 while mentioning his affirmation on oath has described himself as Proprietor of M/s Singh Tyre, which is incongruous to the plea taken by the applicants. In paragraph 3 of the said affidavit he has mentioned about a partnership deed which according to him is already filed as Annexure No. 6 to the petition, whereas, on a perusal of Annexure 6 to the petition, the Court finds that it contains two deeds one is dated 08.04.1999 which is a deed of partnership between two partners, namely, Amarjeet Singh the petitioner herein and Sardar Gurdeep Singh which also speaks of an earlier partnership between Amarjeet Singh and one Smt. Amrit Kaur based on deed of partnership dated 05.05.1981 i.e. when the tenancy is alleged to have been created in respect of the premises in question, however, it also speaks of the death of Shri Amrit Kaur on 07.04.1999 and that consequent thereto the firm was dissolved by operation of law on the said date i.e. 07.04.1999, yet, it speaks of "the continuing partner Sadar Amarjeet in order to secure finances and efficient running of the firm requested Gurdeep Singh to join hands in the same partnership business, accordingly, he was inducted in the partnership firm which is spoken of as having been reconstituted from 08.04.1999. The legal position is very well settled that in a partnership of two if one of the partners dies the partnership is automatically dissolved and there is no question of induction of another partner and continuation of the partnership firm except it being a new partnership (AIR 1966 SC 29; Commissioner of Income Tax, Madhya Pradesh, Nagpur and Bhandra v. Seth Govindram Sugar Mills (para 7 and 8), but, leaving this issue aside for a moment as this aspect has not been considered by the Courts below, the fact to be noted is that Annexure No. 6 contains another partnership deed dated 07.07.2007 i.e. a deed entered 7 years after the initiation of proceedings under Section 21(1)(a) of the Act, 1972 by the opposite party-landlord and which was not in existence on the date of institution of those proceedings rather it was the deed of 08.04.1999 which may have been in existence, if at all, the surprising aspect is that this second deed of 07.07.2007 speaks of three partners-Harjeet Singh, Smt. Jasbir Kaur and Amarjeet Singh the petitioner herein, but, when the Court sees the pleadings of the petitioner in the written statement filed before the Courts below it is revealed that the assertion there was with regard to the existence of a partnership firm by the name of M/s Singh Tyre comprising of only two partners, namely, Amarjeet Singh and Harjeet Singh. It does not speak of the third partner Smt. Jasbir Kaur. Same is the case with the alleged application for impleadment which is said to have been filed by Harjeet Singh before the Prescribed Authority a certified copy of which was placed by his counsel which though not filed on affidavit has been seen and is kept on record, which also mentions about a partnership as aforesaid comprising of only two partners i.e. Amarjeet Singh and Harjeet Singh. There is no mention of Smt. Jasbir Kaur therein. This discrepancy and anomaly was not explained either by the learned Senior Advocate Shri T.P. Singh nor by Shri Shsishir Pradhan and Shri Anurag Srivastava, learned counsel appearing for Harjeet Singh and Smt. Jasbir Kaur. All this makes the factual matrix regarding existence of a partnership firm quite murky. There is no such other evidence on record such as registration with the Trade Tax Department etc. of such a partnership firm comprising of three partners or even two partners. All this makes the factual matrix regarding existence of a partnership firm quite murky. There is no such other evidence on record such as registration with the Trade Tax Department etc. of such a partnership firm comprising of three partners or even two partners. There is nothing on record to establish that notice or information of this change in the Constitution of partnership which took place in 2007 was ever given to the land lord that is why it appears Amarjeet Singh was impleaded as a proprietor of the firm. 6. Be that as it may, apart from the aforesaid unexplained factual aspect it is not in dispute that the learned counsel for the petitioner did not address the Court on the merits of the relevant issues such as the genuine and bona fide need of the landlord, comparative hardship etc. regarding which findings have been recorded by both the Courts below in favour of the landlord. This was so inspite of a specific query being put to him in this regard in response to which he stated that he was raising only one issue i.e. non impleadment of all the partners. 7. This Court is of the view that the legal position that all the partners may not be necessarily be impleaded as defendants in a tenancy dispute between landlord and tenant is undeniable and in fact has not even been disputed by the learned counsel for the petitioner and the applicants seeking impleadment who also assert that they are at best proper parties. In this view of the matter, now the question to be asked is once the application of Harjeet Singh for impleadment before the Prescribed Authority was rejected as informed by Shri Shishir Pradhan on 06.03.2012, no matter on howsoever frivolous ground, why no challenge was made to the same by the said applicant or by the petitioner herein shri Amarjeet Singh at the relevant time. This fact was not even disclosed in the petition by Amarjeet Singh. This fact was not even disclosed in the petition by Amarjeet Singh. As it is the case of the petitioner and the applicants that the partnership was subsisting and it is not the case of the applicants seeking impleadment that the petitioner herein i.e. Amarjeet Singh had colluded with the landlord and that the proceedings before the Courts below were collusive, then, the conclusion is irresistible that the petitioner herein was duly representing the partnership firm, as, it is also a settled legal position that in such partnership firms each partner is an agent of the other and there is a relationship of principal an agent between them. The Court is of the view that the other partners, assuming that they were partners, had full knowledge of the proceedings and even after rejection of the application for impleadment filed by Harjeet Singh, they did not approach the higher Court challenging the said order meaning thereby they were satisfied with the representation of their case/claim before the Courts/Authorities below through their partner Amarjeet Singh, as such, it is now not open for them to file an application before this Court saying they were necessary or proper parties but were not impleaded thereby causing prejudice to them, especially as their claim was duly represented by one of the partners and they did not raise a challenge to the rejection of their impleadment. Further more, as far as the petitioner is concerned, he can not have any grievance that the other partners were not arrayed firstly for the reason that he was heard with opportunity to file pleadings and lead evidence which he availed to the full. Secondly, he has not be able to show as to what prejudice was caused to him or the firm by the non impleadment of the other alleged partners in actual and practical terms. 8. Secondly, he has not be able to show as to what prejudice was caused to him or the firm by the non impleadment of the other alleged partners in actual and practical terms. 8. As regards the applicants seeking impleadment apart from the anomalies pointed out in the pleadings and the documents i.e. the written statement and application for impleadment filed before the Courts below which spoke of only two partners and the recital in the deed as also the pleadings before this Court that the partners were three, a categorical query was put to Shri Shishir Pradhan and Shri Anurag Srivastava, Advocates as to whether it was their case that the petitioner had colluded with the landlord or there was some plea or evidence which could have been placed before the Courts below by their clients which the petitioner did not, they could not give any satisfactory reply nor could demonstrate, even prima facie, that it was so either from the pleadings or from the documents on record or even orally. 9. In this view of the matter, this Court is of the view that after going through the pleadings and the records of the case what comes out is that this plea is being raised only to entangible the matter in further litigation without there being any actual prejudice either to the petitioner or to those who claim to be the other partners of the firm and have sought impleadment before this Court instead of joining him in the petition at the first instance. 10. This Court is of the view that the partners were duly represented in the proceedings before the Courts below through the petitioner-Amarjeet Singh and the fact that he had only 10% share in the firm is inconsequential for the reasons aforesaid. 11. 10. This Court is of the view that the partners were duly represented in the proceedings before the Courts below through the petitioner-Amarjeet Singh and the fact that he had only 10% share in the firm is inconsequential for the reasons aforesaid. 11. In the facts of the present case, the Court does not find any justification to interfere with the impugned judgments, especially, as the findings recorded by the Prescribed Authority and the Appellate Court regarding the genuine and bona fide need as also comparative hardships are based on sound appreciation of facts, evidence and law, which can not be said to be perverse nor have they been demonstrated either by the petitioner or by those seeking impleadment to be perverse in any manner, therefore, in the facts of the case, no interference is called for under Article 227 of the Constitution of India, substantial justice already having been done in the matter. The application for impleadment is rejected. 12. The petition is dismissed.