Dipak Kumar Sen, J.
1. The undisputed facts in this case are that the plaintiff is the owner of the premises No. 9, Pollock Street, Calcutta, consisting inter alia, of an one-storied godown and that one P. Vrajlal Dulabhdas and Co. a registered partnership firm (hereinafter referred to as the firm) is the tenant of the said go-down under the plaintiff at a monthly rent of Rs. 220/- per month payable according to the English calendar. It is also not disputed that the firm has not paid any rent to the plaintiff after April, 1970.
2. The plaintiff filed this suit on the 25th August, 1972, against one Dhiru-bhai Binani alleging that the latter was carrying on business under the name and style of P. Vrajlal Dulabhdas and Co., i.e., the firm, for arrears of rent from 1st May, 1970. till 29th February. 1972, claiming a decree for Rs. 4,840/-, interest on judgment and costs.
3. A written statement in the suit was filed by Dhirajlal Vrajlal Kanakia, the defendant where it was alleged that the name of the defendant was not correctly recorded in the cause title of the plaint. It was further alleged the said firm was a registered partnership and the defendant was one of the partners. It was denied that the defendant was the tenant as alleged. It was further alleged that under a verbal agreement of tenancy between the plaintiff and the firm, the plaintiff was bound to keep the said go-down wind and water-tight and do all necessary repairs thereto and that the firm was entitled to withhold payment of rent in case of default. It was alleged that the roof of the godown became leaky and goods stored therein were damaged by water leaking through the roof. The firm requested the plaintiff to repair the same and the plaintiff having failed to comply with the request, payment of rent was withheld. It was alleged that neither the sum claimed nor any other money was due from the defendant and the suit was bad for non-joinder and mis-joinder of parties, and not maintainable In law.
4. Under two successive orders of this Court passed respectively on 31st March, 1973 and 23rd March, 1973, the plaint was amended. Under the first order the name of the defendant as appearing in the cause title was corrected and under the second order the plaintiff was permitted to further amend the cause title as also the paragraph 2 of the plaint by describing the defendant as carrying on business as a partner of the firm. The second order permitting the plaintiff to amend the plaint was made subject to the rights and contentions of the parties with regard to the question of limitation.
5. The defendant thereafter filed an additional written statement. The additional written statement is more or less the same as the original written statement except that in the latter it was further contended that the second amendment of the plaint amounted to a substitution of a new defendant and as such the suit was barred by limitation. It was further alleged that the suit was not maintainable without im-pleading the other partners of the firm. It -was further alleged that the condition of the said godown has become so bad that it has become impossible to use it for the purpose of storing goods for which the same was let out and that the plaintiff has encroached upon the approach to the said godown, inter alia, by allowing stall holders to build up stalls in the approach road to the godown and that the windows of the said godown have been blocked. It was alleged that in the circumstances the firm was entitled to and did suspend payment of rent. It was further alleged that the defendant being one of the partners of the firm was liable for rent only to the extent of his share in the partnership.
6. The following issues were raised and settled at the trial:
(1) Was there a verbal agreement as alleged in paragraph 3 of the original written statement:
(2) Has the plaintiff failed to repair the godown as alleged in paragraph 3 of the original written statement ?
(3) Is the suit bad for non-joinder and rnis-ioinder of parties ?
(4) Is the suit maintainable against the defendant in its present form ?
(5) Is the plaintiff's claim or any part thereof barred by limitation ?
(6) To what relief, if any, is the plaintiff entitled ?
7. The onus in respect of the above issues being mainly on the defendant, evidence was adduced on behalf of the defendant first.
8. The only witness to depose for the defendant was one Ram Chunder Kul-karni. He is the Manager of the firm at Calcutta and has been connected with the firm for more than 25 years. He stated that there was a oral contract between the plaintiff and one Vrajlal Dhulabhdas Kanakia the then senior partner of the firm. He knew the terms and conditions of the contract as he was present at the relevant time. It was a term of the contract that the firm would take the go-down on rent and the plaintiff would maintain it in serviceable condition. The firm would pay a rent of Rs. 220/- per month. According to him, the firm did not pay rent to the plaintiff as the latter did not maintain the godown in a tenantable condition in terms of the said contract.
9. He proved the signature of the Sales Manager of the firm one D. Gasper in the Original letter dated 20th March, 1970, (part of Ext. A1 and stated that he had knowledge of the contents of the said letter. He stated that even after this complaint the plaintiff did not repair the go-down. He had himself seen the godown. It was in want of repairs for the last 5 or 6 years or more and had been kept empty for that period. He had personally gone to the ' plaintiff and had requested him to do the repairs.
10. In cross-examination he stated that in the year 1955 when the agreement of tenancy was entered into the present defendant was one of the partners of the firm. He did not remember the month of 1955 when the oral agreement of tenancy was entered into. The plaintiff came to the office of the firm at Brabourne Road for the agreement. There were some negotiations regarding the renting of the godown but he could not say who conducted such negotiations on behalf of the firm. He could not also say whether the negotiations were made on the same day when the contract was entered into. On the day when the contract was entered into no payment was made by the firm to the plaintiff. He could not remember the date of the first payment. He also could not remember the date on which the said godown was first occupied by the firm.
11. He noticed the leak on the roof of the godown three or four years ago. Later he stated that he noticed such leak even before four years during a rainy season. He could not state to what extent the goods in the godown were damaged. The damaged goods were never removed from the godown and were still lying there. The firm did not take any steps to repair the leak on the roof nor complained to the Rent Controller. The goods which were not damaged were removed from the godown. The removal and storage of goods would be recorded in the godown register. He stated that the letters of the plaintiff dated the 20th July, 1970 and 27th July, 1972, may have been replied to by the firm but he did not know whether the replies were disclosed in this suit. In answer to a suggestion that the godown was in a perfect condition and the firm was putting forward_ a false plea to avoid payment of rent, he stated that the terms were that the premises would be maintained in a tenant-able condition and as per such term the said firm was justified in holding back rent.
12. The only witness to depose on behalf of the plaintiff was one Rammurti Pathak. He has been working under the plaintiff from the year 1944. He looked after the business of the plaintiff and collected rent for him. He knew the defendant. He stated that the defendant approached the plaintiff towards the end of 1956 at No. 211, Old China Bazar Street, Calcutta, the office of the plaintiff for taking some premises on rent. At that time two rooms were taken on rent and the total rent was Rs. 261/-.' In April, 1970, some repairs were done to the roof of the godown at Pollock Street. He personally supervised the repairs. Certain minor cracks were repaired on the roof. It was not a term of the tenancy that the plaintiff would keep the godown in repair.
13. In cross-examination he stated that though there was no agreement the plaintiff agreed to carry out repairs to the roof of the godown as in the general course of business, the plaintiff used to carry out such minor repairs. This was done for the purpose of maintaining good relationship with the tenants. In May or June, on complaint from the tenant he noticed the cracks of the roof. No contractor was employed for carrying out such repairs but he engaged a mason. The repairs were effected in the month of July, 1970.
Issue No. 1: The verbal agreement of tenancy as pleaded in the original written statement is alleged to contain a term that the plaintiff was bound to keep the godown wind and water tight and do all necessary repairs thereto and that the firm was entitled to withhold payment of rent in case of default. This term does not appear from the evidence adduced on behalf of the defendant. Kulkarni in his examination in chief stated that the oral agreement was that the firm would take the godown on rent of Rupees 220/- per month and the plaintiff would maintain it in a serviceable condition. Even when asked whether there were any other terms he did not add anything.
14. In the correspondence had between the parties as contained in Exhibit A, the firm never alleged that under the agreement of tenancy the plaintiff was obliged to keep the godown in repairs or that unless necessary repairs were effected the firm under the agreement of tenancy had a right to withhold rent. Even when the firm called upon the plaintiff to repair the roof it did not refer to the terms of the tenancy. In the letters addressed by the firm, all that was stated was that as the plaintiff had failed and neglected to repair in spite of complaints the firm was justified in withholding rent.
15. It has been contended by Mr, S. K. Lahiri, appearing on behalf of the defendant, that from such correspondence it appeared that the plaintiff never disputed his obligation to keep the godown in repair and in fact, alleged that he had caused such repairs to be effected. Mr, Lahiri contended further that from the conduct of the plaintiff it can be presumed that under the agreement of tenancy the plaintiff was bound to keep the premises in repair. It is to be noted that Pathak deposing on behalf of the plaintiff has stated that the plaintiff agreed to carry out the minor repairs in order to maintain good relationship with the tenant. Assuming that the plaintiff was bound to carry out repairs under the agreement of tenancy, can there be a further assumption that if such repairs were not carried out the defendant had a further right under the agreement to withhold payment of rent Under Section 108 Sub-section (f) of the Transfer of Property Act neglect to repair the premises by a lessor after notice, which the lessor is bound to make under the lease does not confer any right on the lessee to withold payment of rent. Such a right can only follow from a special covenant, see : AIR1957Cal232 .
16. In the first decision a Division Bench of this Court has held that under Clause (f) of Section 108 of the Transfer of Property Act the lessor will be bound to make any repair only if there is such a contract between the parties. In the absence of such a contract the lessor is not bound to effect repairs. The onus of proving such express covenant is on the lessee.
17. In the second decision another Division Bench of this Court held that a tenant is not entitled to suspension of abatement of rent on account of the landlord's failure to carry out repairs. The liability to pay rent continues even though repairs under the West Bengal Premises Rent Control Act had not been carried out.
18. Considering the evidence in its entirety I find that the defendant has failed to prove that it was a term of the tenancy that the plaintiff would be liable for repairs to the godown or that, in the event of the plaintiff failing or neglecting to effect such repairs the firm would be entitled to withhold the rent. I answer this issue in the negative and in favour of the plaintiff.
19. Issue No. 2: According to Kulkarni the roof of the godown needed repairs and had been out of the use for five or six years or more and that he had personally seen the godown. He noticed leaking in the godown for the first time during a rainy season. This case of the defendant is not borne out by the correspondence disclosed in this suit. The first letter of complaint was addressed to the plaintiff on the 20th March. 1970, not the rainy season. By his letter dated the 15th April, 1970, in reply, the plaintiff informed the firm that he had given instructions for the repairs and expected the same to be completed within two or three days. This letter was never answered. Pathak stated that he had certain minor cracks on the roof repaired in July, 1970. On the 15th July, 1970, there was another letter from the plaintiff to the firm proposing an increase of the existing rent on the ground of increase in the Municipal Rate's. Only after this letter it was again contended by the firm by its letter dated the 20th July, 1970, that repairs had not been carried out. By two successive letters respectively dated the 27th July, 1970 and the 22nd August, 1970, the plaintiff contended that repairs had been carried out and called upon the firm to verify the position. The firm was requested to report back if any further leakage was discovered. The firm, haw-ever, remained silent and did not reply to the letters of the plaintiff. After a year, on the 17th September, 1971, the plaintiff caused a letter to be written by his solicitor to the firm demanding payment of rent. This solicitor's letter was also not replied to but on the 8th November. 1971, the firm in a letter addressed to the plaintiff reiterated its complaint about repairs.
20. The defendant's case that the godown had been out of use for a long time, that some goods were damaged in storing and that undamaged portion of the goods were removed from the godown could have been established by the go-down Registers which as stated by Kulkarni were maintained. These Registers have not been disclosed in this suit. No technical evidence was adduced by the defendant to prove the condition of the roof. On the evidence as adduced it appears that the failure of the plaintiff to repair the roof of the godown has not been established. It is also to be noted that under Section 34 of the West Bengal Premises Tenancy Act, 1956, the firm could have complained to the Rent Controller of non-repair. In certain circumstances, the Rent Controller has the power to direct essential repairs at the cost of the landlord irrespective of the terms of tenancy. This remedy was not availed of by the firm though it was in its interest to have such repairs effected. I answer this issue in the negative and also in favour of the plaintiff.
21. Issue Nos. 3 and 4: These issues can be conveniently considered together. Mr. Lahiri on behalf of the defendant contended that admittedly, the firm is a registered partnership and that apart from the defendant there are other partners in the firm. He contended further, that the other partners of the firm are necessary parties to this suit and in their absence this suit cannot be maintained against the defendant done.
22. Mr. Bhaskar Sen, on behalf of the plaintiff on the other hand, contended that the other partners of the firm could have been impleaded as defendants but they were, however, not necessary parties and the suit can proceed against the defendant alone. In support of his contentions he first relied on Order 1, Rule 6 of the Code of Civil Procedure which reads as follows:
'Joinder of parties liable on same contract: 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'.
23. Mr. Sen next relied on Section 43 of the Indian Contract Act, which provides, inter alia, as follows:
'When two or more persons make a joint promise, the promisee may, in the absence of express agreement to the contrary, compel any (one or more) of such joint promisors to perform the whole of the promise.....'
24. Mr. Sen then relied on Section 25 of the Indian Partnership Act which reads as follows:
'Every partner is liable, jointly with all the other partners and also severally, for all acts of the firm done while he is a partner.'
25. On the basis of the above Mr. Sen argued that in the instant case, admittedly, the firm i.e., the partners of the firm are joint tenants of the plaintiff in respect of the said godown. The defendant is liable to pay the rent to the plaintiff in respect of the said godown as such a joint tenant i.e., joint promisor and/or as a partner. The admitted failure of the firm to pay rent to the plaintiff is an act within the meaning of Section 25 of the Indian Partnership Act read along with Section 2(a) thereof which reads as follows:
'In this Act, unless there is anything repugnant in the subject or context--
(a) An 'act of a firm' means any act or omission by all the partners, or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm.'
26. Mr. Sen also relied on the decision in the case of Lukmidas Khimji v Purshotam Haridas, reported in (1882) ILR 6 Bom 700. This was a decision before the Indian Parnership Act and it was held that Section 43 of the Indian Contract Act applied to a partnership and a promisee could select the partner against whom he wished to proceed and could allow his right to sue the other partners whom he does not make defendants to be barred. He also relied on a decision reported in : 72ITR617(SC) .
27. Mr. Lahiri in reply contended that Section 43 of the Indian Contract Act did not apply in the instant case by reason of Section 25 of the Indian Partnership Act. He further contended that Section 25 of the Indian Partnership Act contemplated positive acts of the partners and not omissions which might give rise to a cause of action. He, however, could not cite any authority to show that Section 2(a) of the Indian Partnership Act did not apply in construing Section 25.
28. Contentions of Mr. Bhaskar Sen appear to be of substance and I hold that this suit is maintainable against the defendant alone. I also hold that the other partners of this firm are not necessary parties in the suit and the suit can proceed against the defendant in their absence. I answer Issue No. 3 in the negative and Issue No. 4 in the affirmative both in favour of the plaintiff.
29. Issue No. 5: On this issue Mr. Lahiri contended on behalf of the defendant that this suit was for arrears of rent from 1st May, 1970, till the 29th February, 1972 and was filed on the 25th August, 1972. The defendant was originally impleaded in his personal capacity as the tenant By the order of amendment dated the 23rd March, 1973, the defendant was for the first time impleaded as the partner of the firm. This order of amendment was, however, without prejudice to the question of limitiation. He contended that by this amendment the status of the defendant was altered and as such it should be held that the suit was instituted by the plaintiff on the date of such amendment and not earlier. In that event, a part of the plaintiff's claim becomes barred by limitation.
30. In support of his contentions he relied firstly, on the decision in the case of Nitai Gour v. Hare Kishna Adhikari, reported in : AIR1957Cal77 . It was held in that case a person who was not a shebait could institute a suit on behalf of the Deity with sanction, from the Court. Such sanction could be obtained prior to or at the time of the institution of the suit or such sanction could be obtained subsequently. It was held if such sanction was obtained subsequently then the suit was validated from the date of the application for such sanction and not earlier. It appears to me that this decision has no application in the instant case. So far as the plaintiff is concerned here there was no bar against his filing any suit nor any particular sanction was necessary. Mr. Lahiri next relied on the decision in the case of Neogi Ghosh and Co v. Sardar Nehal Singh, reported in 35 Cal WN 432 = (AIR 1931 Cal 770). In that case the plaintiff was carrying on business in a business name. He instituted a suit in such business name. Thereafter he sought an amendment to incorporate his own name as the plaintiff. In view of Order 30, Rule 10 of the Code of Civil Procedure which permitted a defendant to be sued in the firm name but did not permit a plaintiff to sue in that name, it was held that this amendment was in fact, a case of substitution and the plaintiff if he was allowed this amendment would be entitled to relief on the basis as if the suit was filed on the date of the amendment.
31. It appears to me that this decision is also not of much assistance to the defendant. The plaintiff in the instant case had a valid cause of action as against, the tenant for arrears of rent. The defendant was impleaded originally as a tenant and was sued for such arrears of rent. The relief sought against the defendant was not altered by the amendment. The status of the defendant as a tenant also remained unaltered. All that was added was a statement that other persons were also tenants jointly with the defendant. This was not an amendment which introduced new facts or ideas or introduced any new cause of action. In view of the decision of the Supreme Court in the case of A. K. Gupta v. Damodar Valley Corporation. : 1SCR796 , it appears to me that such an amendment was not hit by limitation. I hold that no part of the plaintiff's claim is barred by limitation. I answer this issue in the affirmative and in favour of the plaintiff.
32. By reason of the answers given to the issues as above, the plaintiff succeeds in this suit. There will be a decree in favour of the plaintiff against the defendant for Rs. 4,840/-, interest on judgment at the rate of 6% per annum, and costs.