M/s. B. Shahabuddin & Company vs Asif Jah

Ashwani Kumar Mishra, J.—Jurisdiction of this Court under Article 227 of the Constitution of India is invoked by the petitioner, who claims to be a partner of petitioner no.1 concern, stated to be a partnership concern, against the orders rejecting application for impleadment filed in SCC Suit filed for eviction of petitioner no. 1 concern. SCC Suit for eviction and for recovery of arrears of rent came to be filed in August, 2005 against M/s B. Shahabuddin & Company 13/392-L, Civil Lines, Kanpur Nagar through its partner/ proprietor Mohd. Mirza. Mohd. Mirza in his capacity as proprietor/ Partner of M/s B. Shahabuddin & Company, is arrayed as defendant no.2. The premises, herein, is a residential accommodation as per the averment disclosed in the plaint. It is alleged that rent has not been paid of the premises since 1.4.2003 to 12.7.2005.

An application for impleadment by the petitioner has been filed with the allegation that the tenant, herein, is partnership firm and being a partner of the firm, he is entitled to be impleaded. This application for impleadment is supported by an affidavit. A further application has been filed on behalf of the petitioner, stating that the suit, in the manner instituted, is defective inasmuch as the status of defendant is not correctly mentioned in the plaint and, therefore, it is liable to be rejected under Order-7 Rule-11 of Civil Procedure Code. The impleadment has been opposed by the landlord, stating that the applicant, seeking impleadment, has to prove that M/s B. Shahabuddin & Company is a partnership firm and the petitioner is its partner. In Para-3 of the objection, it is stated that M/s B. Shahabuddin & Company has been impleaded as a tenant and all persons competent can defend the suit.

It is relevant to notice that a joint written statement has been filed in which status of tenant is claimed as that of a partnership concern. Status of petitioner as a partner of concern is not disputed. The application for impleadment has been rejected by the court concerned, on the ground that no partnership deed has been annexed which may demonstrate that the petitioner was one of its partners on the creation of tenancy. An application filed for recall of such order under Section 151 of Civil Procedure code has also been rejected. While rejecting the subsequent application, the Court took notice of photocopy of the partnership deed filed by the petitioner, according to which, partnership existed w.e.f. 23.12.1997 for a period of two years. The Court has observed that since original partnership deed is not on record and it is otherwise not shown that the premises was let out to a partnership firm in the year 1969, as such, the impleadment is not warranted.

Aggrieved by these two orders, the applicant - petitioner has approached this Court by filing the present petition. Along with the writ petition, various documents have been brought on record to demonstrate that M/s B. Shahabuddin & Company is a partnership concern and various photocopy of partnership deeds, for different periods, beginning from 1969 is relied upon. It is also claimed that this partnership was duly registered. However, all such documents were not filed before the court below and learned counsel for the respondent has taken a serious objection with regard to entertainment of all such documents on the ground that in exercise of jurisdiction under Article 227 of the Constitution of India, this court need not entertain fresh evidence to castigate an order. Learned counsel submits that only a photocopy of partnership deed is on record, which has already been referred to by the trial court.

Before proceeding further, it would be appropriate to notice, that the suit for eviction was instituted against the firm through Mohd. Guljar, who was shown to be partner/ proprietor of M/s B. Shahabuddin & Company. Mohd. Guljar is stated to have died in the year 2010. An application for substitution has been field for bringing on record the legal heirs of Mohd. Guljar. In the substitution application, which has been annexed along with this petition, the status of Mohd. Guljar is again shown as proprietor/ partner.

I have heard sri Zafar Nayyer, learned Senior Advocate, assisted by Sri Himanshu Kumar for the petitioner and sri Narendra Mohan for respondent no. 1. Notices need not be issued to respondent nos. 2 to 6 in view of the nature of order proposed to be passed. With the consent of the learned counsel for the parties, the matter is being disposed off at the admission stage itself.

From the perusal of records, brought before this Court, there is little difficulty in dealing with the application for impleadment filed by the petitioner. Admittedly, petitioner claims that he is a partner and in this capacity, is entitled to be impleaded in the proceedings before the Court below. The application proceeds on the premise that in a suit filed against a partnership concern, all partners have to be impleaded. This premise apparently is not sustainable in law. It is settled that in a suit filed by the partnership concern, or against a partnership concern, one of the partners can represent all other partners. In such circumstances, if the tenant, herein, is a partnership concern, then one of the partners can always represent the interest of all other partners, and it was not necessary in law for every partner to be impleaded. The question as to whether the petitioner is a partner of the proprietorship concern or not, had otherwise to be established by him. Admittedly, no such document has been filed before the court below and the only partnership deed, brought on record, is a photocopy, according to which, a partnership existed between the period 1997 to 1999. There was nothing on record to demonstrate that the tenancy was created in favour of a partnership concern. It is not in dispute that the tenancy was created in favour of the concern in 1969. The Court below has rejected the application of the applicant on the ground that he has failed to demonstrate that he was partner of the concern to which the premises had been let out in 1969. The Court below does not appear to have committed any error in declining to entertain the impleadment application on the ground that the petitioner had failed to demonstrate that he was a partner of the concern on the relevant date. In exercise of jurisdiction under Article 227, this Court is only concern with jurisdictional aspect, as well as failure of justice, which may have occasioned. This Court, therefore, would not be inclined to interfere in the matter, relying upon any additional document brought before this Court for the first time, when such evidence was not led before the Court below, for deciding impleadment.

This controversy, however, does not rest here. The matter has to be examined from a different aspect. Admittedly, Mohd. Guljar, who was impleaded in the suit as partner/ proprietor of the concern, has died in the year 2010. Who is entitled to succeed Mohd. Guljar, would be determined depending upon the status of tenant. If the tenant firm was a proprietorship concern, then proprietors natural heirs/ legal representatives would have to be impleaded. However, if the firm is a partnership firm, then any of the other partners would have to be impleaded. The plaintiff although is the dominus litis, and has the liberty to describe his opponent in the manner he likes, but the Court would be required to ascertain as to what exactly is the status attributed to the defendant in the suit for eviction. Since the consequences flowing from such determination varies, as such, the Court would have to determine the status of tenant before it proceeds further in the matter. The provision of Order-30 CPC, in that context, assumes significance. It has to be specifically pleaded in the plaint itself, as to what is the status of the defendant, and if it is a partnership firm then the spirit underlying Order-30 CPC would apply. In the facts of the present case, however, this Court finds that till now the plaintiff has not committed itself with regard to the nature of the firm against which proceedings for eviction have been initiated. The Court concerned, therefore, before proceeding further would examine the nature of the tenant firm, which was let out the premises, and in accordance there with, proceed further with the suit, particularly relating to substitution of the parties. This aspect would otherwise be relevant inasmuch as if such issues are not gone into, at this stage, the ultimate adjudication would be open to challenge at subsequent stage, which may lead to uncalled for litigation.

Subject to the observation aforesaid, no interference is called for in the orders passed by the courts below, and the petition stands consigned to record.