Current Indian Statutes Vrindavan Packers and Another vs Virndavan Packers and Another

Sabina, J.—The Petitioner has filed a petition u/s 13 of the East Punjab Rent Restriction Act for eviction of the Respondents from the premises in question. An application was moved by the Petitioner for permission to amend the petition. Vide the impugned order dated 29.9.2010, the said application was dismissed by the Rent Controller, Chandigarh. Hence, the present petition.

Learned senior counsel for the Petitioner has sub-mitted that the Rent Controller had erred in dismissing the application for amendment of the petition filed by the Petitioner. The Petitioner merely sought to correct the name and description of the Petitioner and plead certain facts which had transpired during the pendency of the petition. In support of his arguments, learned senior counsel has placed reliance on Purushottam Umedbhai and Co. Vs. Manilal and Sons, , wherein, in para 8, it was held as under:

Section 4 of the Indian Partnership Act, 1932, hereinafter referred to as the Act states that:

"Partnership" is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all.

Persons who have entered into partnership with one another are called individually "partners" and collectively "a firm", and the name under which their business is carried on is called the "firm name".

It is clear this provision of the Act that the" word "firm" or the "firm name" is merely a compendious description of all the partners collectively. It follows, therefore, that where a suit is filed in the name of a firm it is still a suit by all the partners of the firm unless it is proved that all the partners had not authorised the suit. A firm may not be a legal entity in the sense of a corporation or a company incorporated under the Indian Companies act but it is still an existing concern where business is done by a number of persons in partnership. When a suit is filed in the name of a firm it is reality a suit by all the partners of the firm. If Order XXX had not been introduced into the code and a suit had been filed in the name of a firm it would not be a case of a suit filed by a non-existent person. It would still be a suit by the partners of a firm, the defect being that they were described as a firm. In order to clarify matters a court would permit an amendment by striking out the name of the firm and replacing it with the name of the person forming the partnership. It would be a case of misdescription. Even if the provisions of Order 1 Rule 10 and Order VI Rule 17 did not strictly apply the amendment could be permitted u/s 153 of the CPC because it was not a case of either adding parties or substituting parties. The High Court referred to a number of decisions to which no particular reference need be made but they do support the view taken by the High Court that in the present case the Plaintiff described in the plaint as the firm of Manilal and Sons was a mere-misdescription capable of amendment and not a case where a plaint had been filed by a nonexistent person and therefore a nullity.

Learned senior counsel has further placed reliance on Chhotelal Pyarelal, The Partnership Firm and Others Vs. Shikarchand, , wherein in para 2, it was held as under:

Now, there can be no doubt that once the CPC 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 the code of CPC that a firm can sue and be sued in its own name without the partners being impleaded ecnomine. 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 misdescription of the Respondents to the application and this misdescription 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.

Learned senior counsel has next placed reliance on Chief Conservator of Forests, Govt. of A.P. Vs. The Collector and Others, , wherein, in para 11, it was held as under:

It needs to be noted here that a legal entity - a natural person or an artificial person - can sue or be sued in his/its own name in a court of law or a Tribunal. It is not merely a procedural formality but is essentially a matter of substance and considerable significance. That is why there are special provisions in the Constitution and the CPC as to how the Central Government or the Government of a State may sue or be sued. So also there are special provisions in regard to other juristic persons specifying as to how they can sue or be sued. In giving description of a party it will be useful to remember the distinction between misdescription or misnomer of a party and misjoinder or non-joinder of a party suing or being sued. In the case of misdescription of a party, the court may at any stage of the suit/proceedings permit correction of the cause title so that the party before the court is correctly described; however a misdescription of a party will not be fatal to the maintainability of the suit/proceedings. Though Rule 9 of Order I of CPC mandates that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, it is important to notice that the proviso thereto clarifies that nothing in that Rule shall apply to non-joinder of a necessary party. Therefore, care must be taken to ensure that the necessary party is before the court, be it a Plaintiff or a Defendant, otherwise, the suit or the proceedings will have to fail. Rule 10 of Order I CPC provides remedy when a suit is filed in the name of wrong Plaintiff and empowers the court to strike out any party improperly joined or to implead a necessary party at any stage of the proceedings.

Learned senior counsel has also placed reliance on Surender Kumar Sharma Vs. Makhan Singh, , wherein, it was held that the application for amendment of plaint was not liable to be rejected merely on the ground of delay if the Court finds that by allowing the application real controversy between the parties may be resolved.

Learned senior counsel has further placed reliance on Vineet Kumar Vs. Mangal Sain Wadhera, , wherein it was held as under:

Normally amendment is not allowed if it changes the cause of action. But it is well recognised that where the amendment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation.

Learned Counsel for the Respondents, on the other hand, has submitted that now the provision qua amendment of pleadings in the CPC (Code of CPC for short) had since been deleted. Hence, the application filed by the Petitioner for amendment of the petition for ejectment was liable to be dismissed. In support of his arguments, learned Counsel has placed reliance on Rajkumar Gurawara (Dead) thr. L.Rs. Vs. S.K. Sarwagi and Co. Pvt. Ltd. and Another, , wherein it was held as under:

To put it clear, Order VI Rule 17 CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite part is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event; it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso.

Learned Counsel for the Respondents has further placed reliance on Vidyabai and Others Vs. Padmalatha and Another, , wherein in para 14, it was held as under:

It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court''s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.

Learned Counsel for the Respondents has also placed reliance on Bharat Karsondas Thakkar Vs. Kiran Construction Co. and Others, , wherein it was held that amendment substantially changing the nature and character of original suit was not permissible.

Learned Counsel for the Respondents has further placed reliance on Bahadur Singh and Anr. v. Avtar Singh 2007 (3) R.C.R.(Civil) 44: Vol. CXL VII (2007) 628, wherein it was held that amendment with regards to the facts, which were within the knowledge of the Petitioner or could be found with due diligence cannot be allowed after the commencement of the trial.

There is no quarrel qua the proposition of law settled vide the judgments relied upon by the learned Counsel for the parties. However, each case has to be viewed as per its own facts. The present case relates to Rent Act and provisions of CPC are not strictly applicable.

The Respondents; in the present case, had sought amendment of the written statement and had filed application under Order 6 Rule 17 CPC (Annexure P-5). The said application was not opposed by the counsel for the Petitioner and the same was allowed by the Rent Controller vide order dated 13.9.2010 (Annexure P-8). The case was adjourned for consideration on application under Order 6 Rule 17 CPC filed by the Petitioner.

The Petitioner by way of amendment of the petition sought to correct the name and description of the Petitioner. In the petition for ejectment, the Petitioner was described as under:

"M/s Current Indian Statues through its proprietor, Shri Lalit Mohan Suri (HUF) through its karta Shri Lalit Mohan Suri, Advocate, H. No. 36, Sector 9-A, Chandigarh." Now by way of amendment, the Petitioner wants to be read as under:

Shri Lalit Mohan Suri karta of Lalit Mohan Suri (HUF) Proprietor of M/s Current Indian Statues

The Petitioner further wants to include para 11-A in the rent petition, which reads as under:

The allotment letter has been issued in the name of M/s Current Indian Statues by the Estate Officer, U.T. Chandigarh during the pendency of the present petition. The conveyance deed is going to be executed by the Estate Officer in the near future. Sh. Lalit Mohan Suri HUF is the proprietor of the said concern. Therefore, the payment of rent was always received in the name of the said concern and the Respondent is continuously pay in the same name. Mr. Deepak Suri son of the Petitioner is also the member of said HUF and is practicing as an Advocate in the Hon''ble High Court of Punjab and Haryana, Chandigarh. Ms. Radhika Suri is the wife of Sh. Deepak Suri, who is also practicing as an Advocate in the Hon''ble High Court of Punjab and Haryana, Chandigarh. Therefore, the Petitioner, his son and daughter-in-law shall involve themselves in the business of publishing expand the same which is already continue in the plot in question. The HUF of the Petitioner is being assessed with the Income Tax Department. The copies of the Allotment Letter and Income Tax Return is also attached.

So far as the amendment sought by the Plaintiff to correct the description of the Petitioner is concerned, the same was liable to be allowed as the Petitioner merely wants to correct its misdescription. No evidence would be required to be led by the Petitioner after the said amendment. Hence, the trial Court erred in declining the application for amendment of the ejectment petition in this regard.

By adding para 11 -A in the rent petition, the Petitioner wants to plead that an allotment letter had been issued in the name of M/s Current Indian Statute by the Estate Officer, U.T. and a conveyance deed would be executed partly. Lalit Mohan Suri HUF was the proprietor of the concern and had been receiving the rent. The HUF was being assessed to income tax . The fact that an allotment letter has been issued by the Estate Officer is not relevant for the decision of the case. The other facts which are now sought to be pleaded in the rent petition by inserting para 11 -A were already in the knowledge of the Petitioner but had not been pleaded by the Petitioner at the time of filing the ejectment petition. In these circumstances, the amendment sought by the Petitioner by inserting para 11-A in the ejectment petition has been rightly declined by the learned Rent Controller as the same has been sought at a belated stage. Both the sides have already concluded their evidence.

Accordingly, this petition is partly allowed. Consequently, the application for amendment of the petition to the extent of correction of the name and description of the Petitioner is allowed, whereas, the application so far as it relates to addition of para 11-A in the rent petition is dismissed.