Smt. Angoori Devi and Others vs Surendra Kumar Kukreti and Others

Hon''ble V.K. Bist, J.—By way of instant petition, the petitioners are challenging the order dated 16.07.2011 passed by Prescribed Authority/Civil Judge (Sr. Div.), Kotdwar, Pauri Garhwal in P.A. Case No. 17 of 2008 ''Surendra Kumar and ors. vs. M/s. Hari Krishna Chandra Prakash and ors.'', pending before him, whereby the Court below rejected the application, moved by the third party (petitioners herein) under Order I Rule 10(2) of the Code of Civil Procedure, thereby seeking their impleadment in the P.A. Case no. 17 of 2008. The facts, which emerge out from the record, are that respondent nos. 1 to 6 filed an application before the Prescribed Authority, Kotdwar for release of a shop situate at Badrinath Road, Near Jhanda Chowk, Kotdwar, District Pauri Garhwal under clause (a) of sub-section (1) of Section 21 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act (U.P. Act No. XIII of 1972) which was numbered as P.A. Case No. 17 of 2008. It is asserted in the petition that originally the case was filed against respondent nos. 8, 10 and 11 only, but the respondent nos. 7 & 9 were impleaded subsequently. It is pleaded that shop in question was let out to the firm M/s. Hari Krishna Chandra Prakash, which was a partnership firm of two partners i.e. Hari Krishna and Balesh Chandra @ Bal Bahadur Agarwal. It is asserted that the petitioners are the legal representatives of Hari Krishna and when they came to know about the pendency of said release application, they moved an application for their impleadment before the Court below. The respondent nos. 1 to 6 filed objection to the impleadment application. Upon hearing learned counsel for the parties, the Prescribed Authority, vide impugned order dated 16.07.2011 rejected the impleadment application. Hence this petition.

The respondent nos. 1 to 6 filed a counter affidavit with the assertion that after the death of partner i.e. Hari Krishna, the partnership was dissolved and after the death of other co-partner Balesh Chandra @ Bal Bahadur Aggarwal the partnership came to an end, and in fact, the disputed shop had never been in the tenancy of the partnership firm of the petitioners and the legal heirs of Balesh Chandra. It is asserted that the petitioners had never been the tenants of the shop in question in any capacity, neither as a partner nor in their individual capacity.

Learned counsel for the petitioners contended that the Court below has passed the impugned order in a cursory manner. He contended that admittedly, the partnership firm (respondent no. 7 herein) is a tenant and because a partnership firm is not a legal person, its partners shall be deemed to be tenants of the premises and shall be co-tenants. Learned counsel for the petitioners submitted that originally the release application was filed against respondent nos. 8, 10 and 11 only and the firm-respondent no. 7 was impleaded later on and it had been specifically alleged that the firm had two partners, who have died. He contended that it is settled principal of law that all legal heirs of the original tenant become tenants on account of death of original tenant, therefore the petitioners became tenants of the shop in question, after the death of Hari Krishna, because the respondent nos. 1 to 6 did not allege that the petitioners have surrendered their tenancy rights at any point of time and even if this plea is taken, it can only be adjudicated upon after adducing evidence by the parties and cannot be decided in a cursory manner. Lastly, it is contended that no order prejudicial to a person can be passed against him, without providing any opportunity of hearing. He contended that any order of release passed in the matter shall prejudicially affect the rights of the petitioners, thus the petitioners are necessary party to the case.

On the other hand, MR. B.P. Nautiyal, learned Senior Advocate appearing for the respondents argued that the release application was filed in the year 2008 and when it came up for arguments, the joint tenants/respondent nos. 7 to 11 with an ulterior motive of prolonging the final hearing, adopted delaying tactics in order to avoid the disposal of the release application, filed frivolous impleadment application on 05.07.2011. He contended that the first date of argument in the release application was 26.10.2010 and ever since the argument could not be heard because of the delaying tactics adopted by the respondent nos. 7 to 11. He submitted that the order impugned has been passed based on the merits of the case, which does not warrant any interference. He denied that Hari Krishan and Balesh Chandra were co-tenants of the shop in question and in fact, the petitioners have no locus standi to claim any right regarding their impleadment in the matter of release of the disputed shop, as they are neither tenant nor in possession of the disputed shop for last about 20 years, inasmuch as, neither the petitioners had ever been the tenants of the respondents/landlords in the disputed shop nor they have paid any rent in any capacity to the landlord/respondents, therefore the claim of petitioners to get impleaded in the release application is not maintainable and the Court below has rightly rejected their impleadment application and in doing so, the trial Court considered the entire material available on record and the merits of the application. Learned Senior Advocate for the respondents submitted that though the partnership firm was not a necessary party in the release application, as no partnership firm was in existence, and as such was not tenant in possession of the shop in dispute on the date of filing the release application. He contends that technicalities should not prevail in getting the justice and therefore just to avoid the unnecessary technicalities, the partnership firm, though is not in existence, was also impleaded as a party, specially for the reason that initially the partnership firm had been the tenant before dissolution of the same and the firm was dissolved more then 20 years back and by impleading the then partnership firm, which was initially a tenant in the disputed shop, the petitioners cannot make any claim for their impleadment in the release application. He vehemently contended that undisputedly the partnership firm, which is being represented through legal heirs of one of the partners is already party and in addition to that other heirs of the partner, who are actually tenant in possession of the disputed property are party in the release application and are contesting the release application, therefore the petitioners are not necessary party and as such, the impleadment application is not maintainable. It is lastly contended that the petitioners are not having any interest in the disputed property, as they are not the tenants and in this regard failed to produce even a single piece of evidence in support of their impleadment application regarding their right of tenancy to prove that they are tenant. Learned counsel for the respondents relied on the judgment reported in AIR 1976 Karnataka-71, 2010 (1) ARC 128, 2001 (2) ARC 470 and 1987 (2) ARC 405.

Learned counsel for the petitioners submitted that it is not in dispute that originally the firm M/s. Hari Krishna Chandra Prakash was the tenant. The firm had two partners i.e. Hari Krishna and Bal Chandra. Both of them have died consequently, the firm stood dissolved and their legal representatives became co-owner of the assets and liabilities of the said firm. This fact is apparent from a reading of the release application moved by the respondents no. 1 to 6 in which there is a specific averment that the firm was a tenant. It is further submitted that the partnership firm is not a legal entity, the partners hold the assets of the firm as co-owners. The name of the firm is only their collective name. In support of his submission, learned counsel for the petitioners placed reliance on various judgments, which are being quoted hereinafter.

(i). Paragraph-4 of Purushottam Umedbhai and Co. Vs. Manilal and Sons, :-

It is clear from 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 authorized the suit. A firm may not be a legal entity in the sense of a corporation or a company incorporate under the Indian Companies Act but it is still an existing concern where business is done by a number of persons in partnership.

(ii). Para-4 of Her Highness Maharani Mandalsa Devi and Others Vs. M. Ramnarain (P) Ltd. and Others, :-

For some purposes the law has extended a limited personality to a firm, see AIR 1948 100 (Privy Council) , but the firm is not a legal entity, see Purushottam Umedbhai and Co. Vs. Manilal and Sons, , Lindlay on Partnership, 12th Edn. Pp. 27-28. The persons who are individually called partners are collectively called a firm, and the name under which their business is carried on is called the firm name.

(iii). Para-8 of the decision in State of Punjab Vs. Jullunder Vegetables Syndicate, :-

Though under the partnership law a firm is not a legal entity but only consists of individual partners for the time being, for tax law, income tax as well as sales tax, it is a legal entity. If that be so, on dissolution, the firm ceases to be a legal entity.

(iv). Para-4 of Regional Director, Employees'' State Insurance Corporation, Trichur Vs. Ramanuja Match Industries, :-

Section 19 states that an act of a partner which is done to carry on, in the usual way, business of the kind carried on by the firm, binds the firm. A partnership firm is not a legal entity. This Court in Champaran Cane Concern Vs. State of Bihar and Another, , pointed out that in a partnership each partner acts as an agent of the other. The position of a partner qua the firm is thus not that of a master and a servant or employer and employee which concept involves an element of subordination but that of equality. The partnership business belongs to the partners and each of them is an owner thereof. In common parlance the status of a partner qua the firm is thus different from employees working under the firm, it may be that a partner is being paid some remuneration for any special attention which he devotes but that would not involve any change of status and bring him within the definition of employee.

(v). Para-10 of the decision in Budh Sen Vs. Sheel Chandra Agarwal and Others, rendered by the Allahabad High Court:-

It is well settled that tenancy rights are heritable and devolve upon all the heirs of the deceased irrespective of the question as to whether some of them are in occupation of the demised premises or not. The mere fact that some of the heirs are not in actual occupation of the leased premises cannot operate to put an end to tenancy rights to which they have succeeded as a result of the demise of their predecessor in interest.

(vi). Para-2 of the decision in Chhotelal Pyarelal, The Partnership Firm and Others Vs. Shikarchand, :-

Now, there can be no doubt that since 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 Order 30 of the CPC that a firm can sue and be sued in its own name without the partners being impleaded eo nomine. 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.

(vii). ''Kanhaiya Lal and another Vs. Prescribed Authority and others'', reported in 1988(1) ARC 438 rendered by Allahabad High Court:-

The learned counsel for the petitioners contended that the petitioners were in possession of the accommodation in dispute as sub-tenants on the basis of a lease deed authorising the tenant to take sub-tenants. Since the petitioners are sub-tenants on the basis of the said lease deed, the petitioners cannot be treated to be trespassers and in my opinion, they are necessary parties to the proceedings who may be impleaded as parties as their hardship would also be a relevant consideration while deciding the application u/s 21(1)(a) of the Act.

(viii). Para-3 of Gauri Shankar Gupta Vs. Anita Mishra and Another, rendered by Allahabad High Court:-

Under the general law after the death of the tenant all his heirs inherit the tenancy. Even under U.P. Act No. 13 of 1972, in case of non-residential building all the heirs of the tenant inherit the tenancy by virtue of definition of tenant given u/s 3(a) of the Act. Even though the Supreme Court in Harish Tandon Vs. Addl. District Magistrate, Allahabad, U.P. and others, , has held that after the death of the tenant all his heirs inherit the tenancy jointly and decree passed against one or some of them is binding on non-impleaded joint tenants also, however, this doctrine cannot be pressed into service when during the pendency of the suit a person claiming to be the joint tenant applies for impleadment. In Ashok Chintaman Juker and Others Vs. Kishore Pandurang Mantri and Another, itself an earlier authority of three Hon''ble Judges reported in Textile Association (India) Bombay Unit Vs. Balmohan Gopal Kurup and another, has been referred to in which a decree for eviction was set aside on the application of non-impleaded joint tenant.

By referring the above judgments, the learned counsel for the petitioners submitted that from the averments made in the release application, it is fully established that though the shop in dispute was let out to the firm but in fact the partners thereof were the tenants and upon the death of the partners, their legal representatives became the tenants of the shop in dispute as the firm stood dissolved. The whole body of the partners or their legal representatives became tenants of the shop in dispute and they should be impleaded in the case of eviction from the tenanted premises. The petitioners being one of the co-tenants are entitled to be impleaded in the case.

On the other hand, the learned Senior Advocate appearing for the respondents no. 1 to 6 has submitted that since the firm has been impleaded in the case, it is not necessary to implead all its partners. He has relied upon para 3 of the decision in Smt. Krishna Lalli Gupta Vs. Prescribed Authority reported in 1987(2) ARC 405 wherein the Lucknow Bench of Allahabad High Court has held that it is not necessary that all the partners of the firm should be impleaded. He has further relied upon para 15, 16, 17 and 22 of the decision in Jayanthilal Sampathraj Jain Vs. Noor Mohamed, in which it has been held that if the firm is sufficiently represented then it is not necessary to implead all partners of the firm. He has also relied upon para 4 and 10 of the decision in M/s. Jhamatmal Sons Vs. Smt. Fatima Bi reported in AIR 1976 Karnataka 71 wherein the High Court has held that the representation of the firm by its proprietrix is sufficient and the order passed is good and executable. He has also placed reliance on para 6 of the decision in Dinesh Chandra Saxena Vs. Jagdish Ratan Gupta reported in 2010 (1) ARC 128 wherein it has been held by the Allahabad High Court that it is not necessary to implead all joint tenants in the case. It has also been observed that the applicant was not living in the tenanted house and no evidence of payment of any rent was produced.

MR. B.P. Nautiyal, learned Senior Advocate for the respondents has further submitted that since the petitioners have not proved that they are in possession of the property in dispute or that they have paid any rent, the petitioners shall be deemed to have surrendered their rights, if any.

I have considered the submissions of learned counsel for the parties. Case law cited by learned counsel for respondent in the matter of Smt. Krishna Lalli Gupta was in respect of a continuing partnership firm while in the present case, the original partnership firm stands dissolved. Similarly, the case law in the case of Jhamatmal Sons is also not applicable as the same was in respect of a proprietorship firm while the present case is of a partnership firm. The case law in the case of Dinesh Chandra Saxena is also not applicable as that case was regarding a residential accommodation while the premises in question in the present case are commercial premises.

It is true that while considering the impleadment application, lenient view should be taken by the Court so that necessary party may be heard. In the present case, firm stood dissolved about twenty years ago. Legal heirs of the partners of the firm occupying the shop in question and carrying on business in the shop became tenant as at that relevant time they were jointly carrying on business. The argument of learned counsel for the petitioners that after dissolution of firm, the whole body of partners or their legal representatives became co-tenants of the shop in question is correct. Judgments cited by learned counsel for the petitioners help him to some extent. In the present case also, at the time of dissolution of firm, all the legal heirs of the partners, including the petitioners, became co-tenant. But, this situation did not remain the same after twenty years. The conduct of parties has to be seen. It is to be seen that who is carrying on business in the said shop and whether the business is still joint-business or not. It is also to be seen that who is paying rent of shop in question for last several years and also who is paying other taxes. It is further to be seen that the person who is praying for his impleadment has any interest in shop in question. Nothing has been said by the petitioners in their impleadment application, which could show that they are also carrying on business in the said shop. Nor it is said that they are paying rent of the shop in question. The impleadment application cannot be allowed merely because the applicants are legal heirs of one of the partners of a firm, which stood dissolved about twenty years ago. In my view, the impleadment application has rightly been rejected by the learned Court below. I do not find any merit in the petition. Accordingly, the petition is dismissed. No order as to costs.