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Gokul Prasad vs Additional District And Sessions ...

High Court Of Judicature at Allahabad|17 December, 2002

JUDGMENT / ORDER

JUDGMENT S.P. Mchrotra, J.
1. Supplementary-affidavit filed today be taken on record.
This writ petition has been filed by the petitioner under Article 226 of the Constitution of India, inter alia, praying for quashing the judgment and order dated 30.11.2002 (Annexure-12 to the writ petition) passed by the learned VIIth Additional District and Sessions Judge, Allahabad (Appellate Authority) and the judgment and order dated 11.3.1997 (Annexure-7 to the writ petition) passed by the learned Prescribed Authority/Special Chief Judicial Magistrate, Allahabad.
2. The dispute relates to a shop and a godown situated behind the shop on the ground floor of premises No. 25B, Mutthiganj, Allahabad. The said accommodation has, hereinafter, been referred to as the 'disputed accommodation'.
3. From the allegations made in the writ petition, it appears that the respondent No. 3 filed a release application under Section 21 (1) (a) of the U. P. Act No. 13 of 1972 (in short "the Act") against the petitioner for the release of the disputed accommodation. Respondent Nos. 4 to 7, who are the brothers of the respondent No. 3, were impleaded as opposite party Nos. 2 to 5 in the said release application. The said release application was registered as P.A. Case No. 47 of 1992.
4. It was, inter alia, alleged in the said release application that the respondent No. 3 and the respondent Nos. 4 to 7 were the owners of House No. 25B, Mutthiganj, Allahabad ; and that the respondent No. 3 and the respondent Nos. 4 to 7 were real brother ; and that there had been a family settlement between the respondent No. 3 and the respondent Nos. 4 to 7, according to which the disputed accommodation came in the share of respondent No. 3, and thus, the respondent No. 3 was the sole owner and landlord of the disputed accommodation ; and that the petitioner was a tenant of the disputed accommodation at a monthly rent of Rs. 425 per month ; and that the petitioner was running a business of Gur in the disputed accommodation ; and that the respondent No. 3 had three sons, namely, Abhinav Shyam, Apoorva Shyam and Amit Shyam.
5. It was, infer alia, further stated in the release application that the respondent No. 3 had a shop on rent In 19, Jawahar Square, Allahabad ; and that in the said shop in 19, Jawahar Square, Allahabad, the eldest son of the respondent No. 3 namely, Abhinav Shyam used to sit with the respondent No. 3.
6. It was inter alia, further stated in the said release application that the second son of the respondent No. 3, namely, Apoorva Shyam had a small shop in the interior in chowk area where he used to carry on the business of 'Angochha'. 'Lungi' etc.
7. It was, inter alia, further stated in the said release application that the youngest son of the respondent No. 3, namely, Amit Shyam had appeared in B.Tech. Examination in Agricultural Engineering, and the said Amit Shyam wanted to start agriculture related business which includes fertilizer, pesticides and agricultural Instruments etc.
8. It was, inter alia, further stated in the said release application that the respondent No. 3 was a heart patient, and he wanted to settle his youngest son in business ; and that there is no other alternative accommodation available to the respondent No. 3 where his youngest son could start business.
9. It was, inter alia, further stated in the said release application that the petitioner is the owner of the house No. 27, Sammelan Marg, Allahabad where the petitioner had constructed shops ; and that the petitioner could easily shift his business from the disputed accommodation to the shop in premises No. 27, Sammelan Marg, Allahabad without any substantial loss.
10. It was, inter alia, further stated that the need of the respondent No. 3 was bona fide, and was much more as compared to the petitioner.
11. The said release application was contested by the petitioner.
Evidence was led by both sides.
During the pendency of the said release case before the learned Prescribed Authority, an Advocate Commissioner was appointed who inspected the disputed accommodation in premises No. 25B, Mutthiganj, Allahabad, as well as premises No. 27 Sammelan Marg, Allahabad and submitted his report dated 1.9.1994, a copy whereof has been filed as Annexure-5 to the writ petition.
12. It further appears that the petitioner filed objections dated 2.1.1995 (Annexure-6 to the writ petition) against the said report of the Advocate Commissioner dated 1.9.1994.
13. It further appears from the extract of the order-sheet of the said release case filed today along with supplementary-affidavit on behalf of the petitioner that on 7.3.1995, while the respondent No. 3 was present, the petitioner was not present. The learned Prescribed Authority passed an order dated 7.3.1995, inter alia, stating that the objections to the commission report could be proved by evidence, and as such, the commission report was confirmed subject to evidence.
14. It further appears that thereafter, on 30th March, 1995, the petitioner filed an application 32B praying for recalling the order dated 7.3.1995. On 31.3.1995, the learned Prescribed Authority rejected the said application 32B, filed on behalf of the petitioner, inter alia, holding that there was no sufficient ground for setting aside the said order dated 7.3.1995. In the said order dated 31.3.1995 passed by the learned Prescribed Authority, it was further observed that if found necessary at the time of final argument, the Court itself would inspect the spot.
15. The learned Prescribed Authority by the judgment and order dated 11.3.1997 allowed the said release application in respect of the disputed accommodation. It was, inter alia, held by the learned Prescribed Authority that the firm of the petitioner was a joint Hindu family firm which includes father, son and wife, and indisputably, the petitioner was running the business of the said firm in his capacity as karta of the said joint Hindu family, and in the circumstances, there was no legal bar to the release application on account of the firm not having been made a party in the release application. It was, inter alia, further held by the learned Prescribed Authority that the need of the respondent No. 3 for the disputed accommodation was established to be bona fide. It was, inter alia, further held by the learned Prescribed Authority that on a comparison of hardships, the same was in favour of the respondent No. 3.
16. Thereafter, the petitioner filed an appeal under Section 22 of the Act which was registered as Rent Control Appeal No. 41 of 1997. During the pendency of the said appeal, it appears that the petitioner filed an application dated 10.10.2002 (Annexure-9 to the writ petition), inter alia, praying for Inspection of various premises mentioned in the said application.
17. Sri Ashok Mehta, learned counsel for the caveator-respondent No. 3 has produced before me a certified copy of the order dated 30.11.2002, whereby the said application for inspection filed by the petitioner was rejected by the appellate authority. The said certified copy of the order dated 30.11.2002 is taken on record.
18. The learned appellate authority by the judgment and order dated 30.11.2002, dismissed the said appeal filed by the petitioner.
19. I have heard Sri Ramendra Asthana, learned counsel for the petitioner and Sri Ashok Mehta, learned counsel for the caveator-respondent No. 3.
20. Sri Asthana, learned counsel for the petitioner submits that in the order dated 31.3.1995, the learned Prescribed Authority had observed that if at the time of hearing, it was found necessary, the inspection of the disputed accommodation would be done by the Court itself. It is submitted that the learned Prescribed Authority while passing the impugned judgment and order dated 11.3.1997 ought to have considered as to whether the inspection by the Court was necessary or not. As such, the contention proceeds, the said Judgment and order dated 11.3.1997 passed by the learned Prescribed Authority was vitiated.
21. Having considered the submission made by the learned counsel for the petitioner, I find myself unable to accept the same. It is true that in the order dated 31.3.1995, it was observed by the learned Prescribed Authority that if at the time of hearing, it was found necessary, inspection of the spot would be done by the Court itself.
22. Thereafter, the matter was heard by the learned Prescribed Authority, and the impugned judgment and order dated 11.3.1997 was passed after considering the entire material on record. Evidently, the learned Prescribed Authority did not find it necessary to make inspection of the spot in view of the material already on record of the release case.
23. Further, a perusal of the memorandum of the said Rent Control Appeal No. 41 of 1997 (Annexure-8 to the writ petition) shows that no objection was taken by the petitioner regarding the said question while filing the said appeal.
24. It is further pertinent to note that before the appellate authority also, the petitioner filed an application dated 10.10.2002 (Annexure-9 to the writ petition) for inspection. The appellate authority on a consideration of the facts and circumstances rejected the said application dated 30.11.2002.
25. In view of the aforesaid, no illegality or perversity can be said to have been committed by the learned Prescribed Authority in not making spot inspection itself.
26. Sri Asthana, learned counsel for the petitioner then submits that the order dated 30.11.2002 passed by the appellate authority rejecting the said application dated 10.10.2002 (Annexure-9 to the writ petition) filed by the petitioner had been passed by the learned appellate authority without taking into account the relevant circumstances.
27. I have considered the submission made by the learned counsel for the petitioner. The said order dated 30.11.2002 has not been challenged in the present writ petition. In any case, having perused the said order dated 30.11.2002 passed by the learned appellate authority rejecting the said application dated 10.10.2002 filed by the petitioner for inspection, I am of the opinion that the said order dated 30.11.2002 was passed after taking into account, the relevant circumstances including the facts that in both the shops, namely, 66, Meerganj, Allahabad and 19 Jawahar Square, Allahabad, the elder sons of the respondent No. 3 were already carrying on business, and the business of Fertilizer, Pesticides and Farm Machinery, which the third son of the respondent No. 3 wanted to start, could not be adjusted in the Textile shop.
28. Sri Asthana, learned counsel for the petitioner then submits that the authorities below ought to have considered as to whether the youngest son of the respondent No. 3 could be engaged in the business which was already being carried on by the respondent No. 3.
29. Sri Asthana, learned counsel for the petitioner has placed reliance on a decision of this Court in Smt. Nankauli alias Lakhpati v. IVth Additional District Judge. Mirzapur and Anr., 1985 (1) ARC 534.
30. Having considered the submission made by the learned counsel for the petitioner, I am of the view that the same cannot be accepted.
31. In Smt. Nankauli alias Lakhpati case (supra), it was found as a fact that the son Jeevan Das was assisting his father (landlord) in his cloth business which was carried on by the landlord in a separate shop, and further, the landlord was about 65 years old. The said circumstances were taken into account by the appellate authority while deciding the question of bona fide need, and this Court upheld the decision of the appellate authority. The facts of the said case were thus different from the facts of the present case. In the present case, it was stated in the release application that in the shop in 19 Jawahar Square, Allahabad, the eldest son of the respondent No. 3 Abhinav Shyam used to sit with the respondent No. 3, while the second son Apoorva Shyam was carrying on business in a small shop in Chowk area. It has not been shown by the petitioner that the respondent No. 3 was carrying on some other business also besides the aforesaid two businesses. There was thus, no occasion for the youngest son of the respondent No. 3 assisting the respondent No. 3 in any business being carried on by the respondent No. 3 himself. Thus, the decision in Smt. Nankauli alias Lakhpati case (supra) is not applicable to the present case.
32. Sri Asthana, learned counsel for the petitioner then submits that the authorities below ought to have considered as to whether the respondent No. 3 had financial capacity to establish his youngest son in business of fertilizer, etc. Sri Asthana has placed reliance on a decision of this Court in Ved Prakash Agarwal v. IIIrd Additional District Judge, Bulandshahr and Ors., 1981 ALJ 117. This submission of the learned counsel for the petitioner cannot be accepted. In written statement (Annexure-3 to the writ petition) filed by the petitioner in the release case, namely, P.A. Case No. 47 of 1982, the petitioner did not make any allegation that the respondent No. 3 lacked financial capacity for establishing his youngest son in the business of fertilizer etc. On the contrary, a perusal of paragraphs 32 and 33 of the written statement shows that the petitioner asserted that the respondent No. 3 and his sons were having income which was more than sufficient. The decision in Ved Prakash Agarwal case (supra), is distinguishable. In the said case, the landlord had filed a release application under Section 21 (1) (a) of the Act on the ground that he wanted to start crockery business after his retirement, and that the sources of his income were insufficient for him to earn his livelihood. Considering the said circumstances, it was laid down that the authorities below were justified in examining the sources of Income of the landlord while recording the finding on the question of bona fide need. The facts of the present case, as noted above, are different. In the present case, the petitioner himself asserts that the respondent No. 3 and his family enjoyed sound financial position.
33. Sri Asthana, learned counsel for the petitioner then submits that the finding on the question of comparative hardships has been recorded without taking into consideration the relevant considerations laid down in Rule 16 (2) of the Rules framed under the Act. It is submitted that the factors mentioned in Clause (a) and Clause (b) of Rule 16 (2) of the Rules have not been taken into account by the authorities below while deciding the question of comparative hardships. It is submitted that the authorities below ought to have considered the question of good-will of the business of the petitioner.
34. I have considered the submission made by the learned counsel for the petitioner. A perusal of the impugned judgments and orders passed by the authorities below shows that the authorities below have taken into consideration the relevant factors for deciding the question of comparative hardships. It has been noted by the authorities below that the petitioner has got alternative accommodation in his own house at 27 Sammelan Marg, Allahabad. It has further been noted that certain shops constructed in house No. 1033, Mutthlganj, Allahabad, opposite the disputed accommodation were also available for letting. The availability of these alternative accommodations was considered in the context of the loss of goodwill to the petitioner on account of his old tenancy in case, he was shifted from the disputed accommodation. Therefore, the factors mentioned in Clauses (a) and (b) of Rule 16 (2) of the Rules framed under the Act have been considered by the authorities below.
35. Sri Asthana then submits that an affidavit of V. K. Srivastava was filed before the appellate authority wherein he stated that he had never addressed any affidavit to Prabandhak, Door Sanchar Kendra, Allahabad.
36. In view of the said affidavit filed before the appellate authority, the contention proceeds, the question of comparative hardships ought to have been decided in favour of the petitioner.
37. I have considered the submission made by the learned counsel for the petitioner. The affidavit of V. K. Srivastava filed before the appellate authority has been eonsidered by the appellate authority along with the other material on record, and conclusions of fact have been drawn by the appellate authority. No illegality or perversity has been shown in the said conclusions of fact recorded by the appellate authority. Therefore, the submission made by the learned counsel for the petitioner in this regard cannot be accepted.
38. Sri Asthana, learned counsel for the petitioner then submits that the firm M/s. Gauri Shanker Gokul Prasad was the tenant of the disputed accommodation, and as such, the said firm as well as its partners ought to have been impleaded as the opposite parties in the said release application. The said submission made by the learned counsel for the petitioner has been considered by the learned Prescribed Authority as well as by the appellate authority, and cogent and valid reasons have been given for rejecting the said submission.
39. The learned Prescribed Authority in the impugned judgment and order dated 11.3.1997 has held that the firm in question was a Hindu undivided family firm, and the petitioner was looking after the business of the said firm as the karta of the family.
40. In view of the said finding, as the petitioner being karta of the Hindu undivided family was impleaded as the opposite party in the release application, I am of the opinion that the release application did not suffer from any infirmity on the said ground.
41. Reference in this regard may be made to paragraph 251 of Mulla's Principles of Hindu Law (17th Edition) which deals with parties to suits in respect of Joint Hindu Family. Principles (1) and (5) stated in the said paragraph 251 are relevant in the present case, and the same are quoted below :
"251. Parties to suits.--(1) Where the manager of a joint family, having power to do so, enters into a transaction in his own name on behalf of the family, whether it be a contract, or a mortgage, or a sale, he may sue or be sued alone in respect of that transaction. Where the mortgage by the manager extends to the entire interest of the family and is not confined to the manager's share, he must be deemed to have acted in the transaction on behalf of the family. The other coparceners are not necessary parties to a suit on such a mortgage, as they are effectually represented by him and are bound by the decree in the suit.
The above proposition is based upon decisions of the Privy Council set out in illustrations (1) and (2) below :
Illustrations (1) A and B are managers of a joint family which carries on the business of money-lenders. As such managers they advance moneys belonging to the joint family to C, A and B are entitled to sue C on an acknowledgment passed to them by C in respect of the money dealings. The other coparceners are not necessary parties to the suit. Accordingly, the joinder of the other coparceners as plaintiffs after the statutory period has expired being unnecessary, does not prevent, the suit as originally constituted from being in time. However, after partition the position of members is that of partners and all must sue.
(2) M mortgages two immovable properties to J. He then borrows moneys from H and D, the managing members of a joint Hindu family, and executes a second mortgage of one of the properties, to them. He also sells the equity of redemption of the other property to H and D, and executes a sale deed in their favour. J sues M, H and D on his mortgage, and obtains a foreclosure decree against them. The other members of the joint family are not parties to the suit. H and D do not avail themselves of the right to redeem, and the decree is made absolute. The decree is binding on the other members of the family, and they are not entitled to sue J for redemption.
A member who contends that the action of the manager was beyond his powers is not properly represented by the manager and ought to be Joined as a party if he wishes.
It is not necessary that the manager, either when he sues or is sued, should be described as such in the pleadings. However, it is always advisable to do so. In a suit by the manager, where it is necessary in order to safeguard the interest of the defendants, to implead the other members of the family, the defendants may apply to bring them on record.
(2) .........................................
....................................
(3) .........................................
....................................
(4) .........................................
....................................
(5) It seems that the manager of a joint Hindu family may sue or be sued as representing the family in respect of a transaction entered into by him as manager of the family or in respect of joint family property, and that a decree passed against him in such a suit would bind all other members of the family if, as regards minors, he acted in the litigation in their interest, and, as regards adults, with their consent. The consent need not be express ; it will be implied if they do not come and apply to be joined as parties to the suit, but not if they applied to be made parties in order to contest the manager's action. The fact that besides the manager who is sued as such, some other members of the family also are added as parties will not render the suit defective simply on the ground that some other minor member has not been joined. The suit can still be a representative suit.
In Lingangowda v.
Basangowda, their Lordships of the Privy Council observed :
"In the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point and over again, and each infant to wait till he becomes of age, and then bring an action, or bring an action, by his guardian before ; and in each of these cases, therefore, the Court looks to Explanation 6 of Section 11 of the Code of Civil Procedure, 1908, to see whether or not the leading members of the family have been acting either on behalf of minors in their interest, or if they are minors, with the assent of the majors."
There is no right in a minor or an adult member of the family to bring a suit to set aside a decree passed against the manager on the ground that he acted with gross negligence in the conduct of the suit.
Where a right to bring a suit was possessed by a father and other members then living and persons who were born later had also acquired the right before the right is barred by limitation the right will continue up to 3 years after majority of the youngest of the sons.
(6) ......................................................
...................................."
42. Even if M/s. Gauri Shanker Gokul Prasad is taken to be a partnership firm, still there Is no infirmity in the release application, as the petitioner has been impleaded in the said release application as "Sri Gokul Prasad, Aayu 50 varsh, putra Sri Gauri Shankar, partner M/s. Gauri Shanker Gokul Prasad, Niwasi 25B Mutthiganj, Allahabad." Thus, the petitioner was impleaded in the said release application in his capacity as partner of the firm M/s. Gauri Shanker Gokul Prasad and thus, the firm was represented in the said release case.
43. The question of impleadment of parties to the release application may be examined from the point of view of Section 43 of the Indian Contract Act, 1872 and Order I Rule 6 of the Code of Civil Procedure also. Examining the scope of the said provisions, a Division Bench of the Jammu and Kashmir High Court in Jodh Singh Gujral v. S. Kesar Singh and Ors., AIR 1959 J&K 96, laid down as follows (paragraphs 7, 9, 17 and 18 of the said AIR) :
"7. Section 43 of the Contract Act reads as follows :
"When two or more persons make a Joint promise, the promise may, in the absence of express agreement to the contrary, compel any one of or more of such joint promisors to perform the whole of the promise."
This section varies the rule of common law as to the liability on joint contracts. It makes all joint contracts joint and several. It allows a promisee to sue each one or more of the several joint promisors as he chooses and excludes the right of a joint promisor to be sued along with his co-promisors.
9. Even, so, the question is whether Section 43, Contract Act applies to partners. There appears no reason in principle why it should not, and there is sufficient authority for holding that it does.
17. In dealing with the contention urged on behalf of the respondents, I must also refer to Order I, Rule 6 of the Code of Civil Procedure which runs as follows :
"The plaintiff may, at his option, Join as parties to the same suit all or any of the persons severally or jointly and severally, liable on any one contract including parties to bills of exchange, hundis and promissory notes."
No doubt this rule does not speak of joint liability, but relates to several and Joint and several liability. But the effect of Section 43 of the Contract Act is to render joint liability into joint and several liability. This was assumed and if I may say so with respect-rightly assumed in ILR 21 Mad 256. Section 29 of the Civil Procedure Code, 1882, referred to in that decision is Order I, Rule 6 of the present Code. The provision of Order I, Rule 6 is therefore another ground for repelling the contention raised on behalf of the respondents in this appeal.
18. Mr. L. N. Sharma for the respondents has argued that the plaintiff ought to have framed the suit under Order XXX, Rule 1, Civil Procedure Code, If he did not choose to implead all the partners as party-defendants. What I have already stated is sufficient to demonstrate the untenability of the argument that it is incumbent on the plaintiff to bring the suit against all the partners and that he is not entitled to seek relief against some of the partners chosen by him. The argument that the plaintiff is bound to bring the action under Order XXX Rule 1 Civil Procedure Code is equally untenable. Order XXX Rule 1 only prescribes a convenient procedure for suing a firm. It does not vary or abrogate the right which is available to the plaintiff under the provisions of Section 43 of the Contract Act. Nor does Order XXX Rule 1 control or override the provisions of Order I, Rule 6 of the Civil Procedure Code. The plaintiff can well chose to sue the partners without bringing on record the firm itself. He is equally entitled to bring an action against only some of the partners. Order XXX, Rule 1 which merely prescribes the procedure in case the plaintiff desires to sue the firm does not in any manner affect this right of the plaintiff."
44. Applying the principles underlying Section 43 of the Indian Contract Act, 1872 and Order I Rule 6 of the Code of Civil Procedure, it is evident that the impleadment of the petitioner as the opposite party in the said release application describing him as "partner M/s. Gauri Shanker Gokul Prasad" was sufficient compliance of the requirements of law. Non-impleadment of the said partnership firm as such or all the partners of the said firm (if any) did not render the release application defective.
45. The aforesaid question of impleadment of parties to the release application may be examined from yet another angle.
46. In Malabar Fisheries Co. v. Commissioner of Income Tax, Kerala, AIR 1980 SC 176, the question before the Supreme Court was as to whether the distribution of assets of a firm consequent on its dissolution amounts to a transfer of assets within the meaning of the expression "otherwise transferred" occurring in Section 34(3)(b) of the Indian Income-tax Act, 1961, having regard to the definition of 'transfer' in Section 2(47) of the Act.
Examining the said question, it was laid down by their Lordships of the Supreme Court as follows (paragraph 18 of the said AIR) :
"18. Having regard to the above discussion, it seems to us clear that a partnership firm under the Indian Partnership Act, 1932, is not a distinct legal entity apart from the partners constituting it and equally in law the firm as such has no separate rights of its own in the partnership assets and when one talks of the firm's property or firm's assets all that is meant is property or assets in which all partners have a joint or common interest. If that be the position, it is difficult to accept the contention that upon dissolution the firm's rights in the partnership assets are extinguished. The firm as such has no separate rights of its own in the partnership assets but it is the partners who own jointly in common the assets of the partnership and, therefore, the consequence of the distribution, division or allotment of assets to the partners which flows upon dissolution after discharge of liabilities is nothing but a mutual adjustment of rights between the partners and there is no question of extinguishments of the firm's right in the partnership assets amounting to a transfer of assets within the meaning of Section 2(47) of the Act. In our view, therefore, there is no transfer of assets involved even in the sense of any extinguishment of the firm's rights in the partnership assets when distribution takes place upon dissolution."
47. In Puran Chana v. Rent Control and Eviction Officer, Kanpur and Anr., 1959 ALJ 343, it was laid down by this Court as follows (at page 346 of the said ALJ) :
"A tenancy is created by agreement between two or more persons. A person may be a living person or an artificial one like a company or corporation created by statute. But it is settled law that a firm does not have the legal status of a person. It is merely convenient name or label for the person or persons who own it. The firm as such is incapable of making a contract or becoming a tenant. The statement that a firm became the tenant or secured a contract is a layman's way of describing the real legal relation namely, that the partners of the firm became tenants or entered into a contract,"
48. In Govind Ram Sewa Ram and Anr. v. IInd Additional District Judge, Bulandshahr and Ors., 1982 (1) ARC 84, it was laid down by this Court that a firm cannot be a tenant and the proprietor or the partners of the firm, as the case may be, are the tenants.
49. In Prabhakar Mehrotra and Anr. v. District Judge, Kanpur and Ors., 1982 (2} ARC 426, this Court held as follows (Paragraph 34 of the said ARC) :
"34. A contention was seriously canvassed by the learned counsel for the petitioners that the firm can be a tenant. Learned counsel for the respondent contended that the contrary view is well established. Reference was made to the case of Puran Chand v. Rent Control and Eviction Officer, where it was held that a firm does not have the legal status of a person. It is merely a convenient name or label for the person or the persons who own it and as such the firm is incapable of making a contract or being a tenant. A similar view was taken in the case of Govind Ram Mewa Ram v. IInd Additional District Judge (supra) that a firm cannot be a tenant and the proprietor or the partners of the firm, as the case may be, are the tenants. The Supreme Court in the case of Malabar Fisheries Co. Ltd, v. I. T. Commissioner, Kerala, held that a partnership firm under the Partnership Act is not distinct legal entity apart from the partners constituting it and equally in law the firm has no separate rights of its own in the partnership assets and when one talks of the firm's property or firm's assets all that is meant is property or assets in which all partners have a joint or common interest. It is, therefore, clear from the above that the firm M/s. Mehrotra and Company, which was a firm registered under the Chartered Accountants Act could not be deemed to be a tenant..............................."
50. Thus, in view of the aforesaid decisions, it is evident that the partnership firm cannot be a tenant. In fact, partners of the firm are the tenants.
51. In view of this legal position, the partnership firm M/s. Gauri Shanker Gokul Prasad in the present case was not required to be impleaded as an opposite party in the release application.
52. As regards the impleadment of partners of the said firm M/s. Gauri Shanker Gokul Prasad, it is pertinent to quote paragraphs 19 and 20 of the written statement filed by the petitioner in the said release case (Annexure-3 to the writ petition) :
"19. That at the time of letting and commencement of the business by the aforesaid firm there were initially four partners. The said firm, was constituted by the opposite party No. 1, his mother and two brothers namely Om Prakash and Manik Chand soon after the letting as stated above with the change of names and partners from time to time.
20. That with the passage of time the mother and the brothers of the opposite party No. 1 withdrew themselves from the partnership business of the aforesaid firm."
53. In view of the aforesaid admission of the petitioner that the mother and two brothers of the petitioner had already withdrawn from the partnership firm, there was no question of impleadment of the said persons (mother and two brothers of the petitioner) in the said release application, and the impleadment of the petitioner alone was sufficient.
54. Sri Asthana has placed reliance on a Division Bench decision of this Court in Agarwal Stone Mills v. U. P. State Electricity Board, and Ors., 1993 (2) AWC 895 : AIR 1993 All 286. The said decision, in my opinion, is not applicable to the facts of the present case. In the said decision, the question involved was as to whether a partnership firm could maintain a writ petition under Article 226 of the Constitution of India or not. It was laid down that only natural person juristic, legal or corporate could approach the High Court under Article 226 of the Constitution of India. Therefore, a partner could not maintain the writ petition in firm's name even if, the firm was registered under Section 59 of the Partnership Act. Even If, an individual partner was affected personally, all the affected partners of the firm were supposed to join for maintaining the writ petition under Article 226 of the Constitution of India. Controversy involved in M/s. Agarwal Stone Mill case (supra), was thus different, than the one involved in the present case.
55. Sri Asthana, learned counsel for the petitioner then submits that the authorities below ought to have awarded compensation as provided in the second proviso to Section 21(1) of the Act.
56. Sri Ashok Mehta, learned counsel for the caveator respondent No. 3 fairly submits that he has no objection if reasonable compensation is awarded to the petitioner in view of the said provision contained in the second proviso to Section 21 (1) of the Act.
57. Having considered the facts of the case, I am of the opinion that two years' rent ought to have been awarded to the petitioner while allowing the release application under Section 21 (1) (a) of the Act in respect of the disputed accommodation.
58. In view of the aforesaid discussion, I am of the opinion that this writ petition lacks merit and the same is liable to be dismissed. The writ petition is accordingly dismissed.
59. It is however, directed that the respondent No. 3 would pay two years' rent to the petitioner as compensation within six weeks from today.
60. Sri Ramendra Asthana, learned counsel for the petitioner then submits that some reasonable time may be granted to the petitioner for vacating the disputed accommodation.
61. I have heard Sri Ramendra Asthana, learned counsel for the petitioner and Sri Ashok Mehta, learned counsel for the caveator-respondent No. 3 on this question also.
62. Having considered the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it is directed that the petitioner will not be evicted from the disputed accommodation till 30th June, 2003, provided the petitioner gives an undertaking on his personal affidavit within six weeks from today incorporating the following conditions :
(1) The petitioner will vacate the disputed accommodation on or before 30th June, 2003 and will hand over peaceful vacant possession of the same to the respondent No. 3.
(2) The petitioner will continue to pay rent to the respondent No. 3 in respect of the disputed accommodation till the date of vacating the disputed accommodation.
In case, the petitioner does not give the aforesaid requisite undertaking within the time granted or does not comply with any of the aforesaid conditions incorporated in the undertaking, this order granting time to the petitioner for vacating the disputed accommodation will stand automatically vacated, and it will become open to the respondent No. 3 to execute the release order forthwith.
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Title

Gokul Prasad vs Additional District And Sessions ...

Court

High Court Of Judicature at Allahabad

JudgmentDate
17 December, 2002
Judges
  • S Mehrotra