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Shew Karan Agarwalla and anr. Vs. SatyanaraIn Mansinka - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. Nos. 1834 of 1970 and 460 of 1974
Judge
Reported inAIR1978Cal495,82CWN1008
ActsWest Bengal Premises Tenancy Act, 1956 - Section 13(1); ;West Bengal Premises Tenancy (Amendment) Act, 1969; ;Transfer of Property Act, 1882 - Section 106; ;Partnership Act; ;Code of Civil Procedure (CPC) , 1908 - Order 30, Rule 1
AppellantShew Karan Agarwalla and anr.
RespondentSatyanaraIn Mansinka
Appellant AdvocateRanjit Kumar Banerjee, Adv., in S.A. No. 1834 of 1970, ;J.L. Pugalia, Adv. in S.A. No. 460 of 1974 and ;Sailendra Bhusan Baksi, Adv. in S.A. Nos. 1834 of 1970 and 460 of 1974
Respondent AdvocateR.P. Das, ;Jolly Sett, ;Archana Roy and ;Prasun Kr. Choudhury, Advs. in S.A. No. 1834/70 and ;Sakti Nath Mukherjee and ;Gouri Sankar Gupta, Advs. in S.A. 460/74
DispositionAppeals partly allowed
Cases ReferredBalai Chandra Hazra v. Shewdhari Jadav
Excerpt:
- .....requirement of the premises for building or rebuilding could not be carried out without the suit premises being vacated by the tenant. after the amendments were allowed the tenants appellants filed their respective written statements.6. this court also framed an additional issue on the fresh pleading in both the suits which is as follows :--'whether the plaintiff landlord reasonably requires the suit premises for building or rebuilding and if so, whether such building or rebuilding cannot be carried out without the premises being vacated by the defendant.'with the view to shorten the litigation, this court, relying on the aforesaid decision of the supreme court fixed the cases for hearing when the parties were directed to produce evidence in support of their respective cases on.....
Judgment:

Salil Kumar Datta, J.

1. These two appeals have been heard before me, one after the other, and practically common questions of law and fact are involved in these appeals. They will be governed by this judgment.

2. The same plaintiff in both the connected suits is the landlord of the respective defendants in respect of two shop rooms, with a godown room in addition in respect of one tenancy of Mundhra Brothers, of the house with C. I. roof, wooden walls, pucca floor situated in Holding No. 6, Ward XVIII of the Siliguri Municipality. The tenanted premises had been held by the defendants as monthly tenants according to English Calendar month. According to the plaintiff, the premises were very old and in dilapidated condition and 'therefore the premises are reasonably required by him for purpose of building and rebuilding.' The tenancies were duly determined by notice containing also the threat of suit. As the defendants failed to vacate, two suits were instituted in 1966 against the tenants, one being O. C. Suit No. 24 of 1966 against M/s. Mundhra Stores and another the appellants in S. A. No. 460 of 1974 and the other being O. C. Suit No. 40 of 1966 against Shew Karan Agar-walla and another, the appellants in S. A. No. 1834 of 1970.

3. The suits were contested by the respective defendants inter alia denying that premises were in old and dilapidated condition or that the plaintiff reasonably required the premises for building and rebuilding. The suits were tried on evidence and while the O. C. Suit No. 40 of 1966 was dismissed, the O. C. Suit No. 24 of 1966 was decreed. On appeal, the O. C. Suit No. 40 of 1966 was decreed in reversal of the decree of dismissal of the suit by the trial Court, while the appeal against decree for possession in O. C. Suit No. 24 of 1966 was dismissed. These appeals are against the aforesaid decisions.

4. The ground of eviction was under the original Clause (f) of Section 13 (1) of the West Bengal Premises Tenancy Act, 1956. This Clause was substituted by Clauses (f) and (ff) by the West Bengal Premises Tenancy (Second Amendment) Act, 1969. Since these clauses have been made applicable to pending proceedings even in second appeal, the Supreme Court in B. Banerjee v. Anita Pan, : [1975]2SCR774 , while upholding the constitutional validity of amending provision of Sub-section (3A) of Section 13 with retrospective effect, gave liberty to the plaintiff to file fresh pleadings setting out his grounds under Clause (f) and Clause (ff) if they were so advised with opportunity to the tenant to file his written statement. The court thereafter was directed to dispose of the suit after giving both sides the right to lead additional evidence. The Court further laid down that it would be open to the appellate court either to take evidence directly or to call for a finding.

5. In these appeals also, the plaintiff filed before this Court, as the appeals came before hearing, applications for fresh pleadings in the plaints in the two suits incorporating the requirement of the amended Clause (f) to which there was no opposition as there could be none. The amendments were allowed by this Court on Jan. 19, 1978 and are by addition to that paragraph of the plaint which describes the premises as being in very old and dilapidated condition and as such the plaintiff reasonably required the premises for building or rebuilding. Fresh pleadings were to the effect that the plaintiff's reasonable requirement of the premises for building or rebuilding could not be carried out without the suit premises being vacated by the tenant. After the amendments were allowed the tenants appellants filed their respective written statements.

6. This Court also framed an additional issue on the fresh pleading in both the suits which is as follows :--

'Whether the plaintiff landlord reasonably requires the suit premises for building or rebuilding and if so, whether such building or rebuilding cannot be carried out without the premises being vacated by the defendant.'

With the view to shorten the litigation, this Court, relying on the aforesaid decision of the Supreme Court fixed the cases for hearing when the parties were directed to produce evidence in support of their respective cases on the fresh pleadings.

7. At the hearing, Mr. Baksi learned Advocate for the appellant, produced a plain copy of the judgment of the Supreme Court in Civil Appeal No. 1138 of 1977 dated Feb. 21, 1978 (still unreport-ed) (Since reported in : [1978]3SCR147 ) Balai Chandra Hazra v. Shewdhari Jadav, contending that after amendment of pleadings in the High Court in such second appeals or Letters Patent appeals therefrom, this Court has no jurisdiction to take evidence itself and decide the issue on basis of the evidence adduced. In the cited case also the High Court in the connected Letters Patent Appeal from the second Appeal allowed an amendment to the plaint to bring it within the purview of Clause (ft) of Section 13 (1) of the Act and framed two issues arising from the amended pleadings. The High Court also took evidence and heard the appeal and the decree of eviction was affirmed. The Supreme Court noted in the judgment in the appeal therefrom that the findings of fact recorded by the first appellate court are binding and the position will be the same even if fresh evidence is allowed to be taken on amended pleadings and appreciation of evidence to record a finding of fact is necessary for disposal of the appeal. The Court hearing a second appeal under Section 100 of the Civil P. C. as it was then has no power to take over the function of the trial court or the first appellate court and undertake appreciation of evidence and record findings of facts. The power of the High Court under Section 103 is limited to evidence on record which again is sufficient to determine an issue of fact necessary for disposal of the appeal which has not been determined by the lower appellate court or wrongly determined by such court for reasons mentioned therein When pleadings are amended at the stage of a Letters Patent appeal from a second appeal or a second appeal and fresh allegations of facts are introduced in the controversy which necessitate additional evidence being permitted it will not be open to the High Court to proceed to record findings of fact, as the High Court has to work under constraint of Section 100 as it then was and also Section 103 of the Code. When on account of subsequent change in law, amendment of pleadings is granted which raises disputed questions of fact the situation would not be one governed by Order 41, Rule 27 of the Code as the case is not one where the appellate court whose decree is under appeal has refused to admit evidence adduced or the appellate court requires any evidence to enable it to produce judgment nor such a situation is covered under the expression 'other substantial cause'. The function of appreciation of evidence adduced on amendment of pleadings bringing into focus new or fresh disputed questions of fact, should appropriately be undertaken by the trial Court, or, at the most, the first appellate Court but not the High Court hearing a second or Letters Patent appeal from a second appeal though the High Court has the full competence to grant amendment of pleadings.

8. In view of the above position, as pointed out by the Supreme Court it is not within the legal competence of this Court to take evidence in this Court and appreciate the evidence and dispose of the appeal on such appreciation of evidence and findings of fact thereon. The order passed by this Court in so far as the same relates to a trial on evidence in this Court on amended pleadings has to be recalled. I accordingly recall the portion of the orders in the said appeals both dated March 17, 1978 fixing the cases for trial on evidence in this Court on the additional issue framed by me as aforesaid.

9. The next question for determination is as to whether the suits should be sent back to the first appellate court or to the trial Court. Both courts it appears have concurrent jurisdiction to decide the questions of fact arising from the issues in controversy in the suit. Even so, to direct the first appellate court to take evidence and decide the issue would be to deprive the aggrieved party of a forum of trial which will not be appropriate in view of the contest and in the attending circumstances even though this may cause some delay in the final disposal of the suits.

10. Further question arises as to whether the suits in entirety should be sent back for trial, including the issues in respect whereof no additional evidence is necessary. In the case before the Supreme Court, the entire case was sent back for trial on evidence but such course cannot be said to be laying down a proposition that the suit should always be sent back to the trial Court or the lower appellate court for a decision on all issues. In these appeals before us it is submitted there are in addition issues on notice and its service as also to the maintainability of the suit which also should be decided by the trial Court along with other issues. I do not, however, think it proper to have fresh trial on issues already decided which has nothing to do with fresh pleadings. Accordingly I propose to decide the controversy in regard to the notice in both appeals and also the dispute as to the maintainability of the suit in regard to S. A. No. 460 of 1974.

11. On perusal of the notices, I do not find any infirmity in them while no dispute had ever been raised in either of the appeals about their due service. It was also contended that notice on a registered partnership firm or on one of its partners is invalid in law as the partnership is not a legal or corporate entity. The partnership firm under the provisions of the Partnership Act, 1932 is the collective name of all partners so that contract between a partnership firm in firm name with third party is, in law a contract between the partners of the firm as its partners with such third party, even though partnership by itself is not a legal entity or corporate body. Accordingly, the notice on the partnership firm in firm name determining the tenancy which was in the name of the firm duly served is thus otherwise valid. The findings of the courts below as to the validity of the notices and the service thereof are upheld.

12. As to the maintainability of the suit, it has also been urged in S. A. No. 460 of 1974 that the tenant is a registered partnership firm but it has no corporate existence and Order 30, Rule 1 is merely an enabling provision. Accordingly all the partners should have been made parties to the suit and the failure to implead all partners, instead of one as done, is fatal for which the suit is liable to be dismissed.

13. Under Section 4 of the Partnership Act, 1932, 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 'firm name'. Under Order 30, Rule 1 of the Code any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action. Though a firm is not a legal or corporate entity nor a person, the word 'firm' in a suit or proceeding is nothing more than a convenient method for denoting the persons who constituted the firm at the time of the accrual of the cause of action. Order 30, Rule 1 makes it permissible to file a suit by or to be sued in firm name, not as a distinct legal entity but as convenient mode of describing the partners at the time of accrual of the cause of action and the firm, as a party to the suit is merely a collective name of its partners and is really against all partners of the firm at the time of the cause of action though for institution of a suit by or on behalf of a firm, the firm must be registered under the Partnership Act 1932. There is thus no defect of parties in the connected suit against the registered partnership firm which is, in law, a suit against all partners at the time of the accrual of the cause of action.

14. The Courts below have arrived at the findings on the reasonable requirement of the plaintiff in respect of the suit premises for building or rebuilding and also considered the impact of Clause (f) of Section 13 (1) as amended. In the context of the fresh pleadings and the liberty given to the parties to adduce further evidence thereon it is necessary to reconsider and reappreciate the position as to reasonable requirement of the suit premises by the plaintiff and if so, to examine whether such building or rebuilding cannot be carried out without the premises being vacated by the tenants. In the circumstances, I set aside the findings arrived at by the courts below in this respect, without examining their validity on merits or expressing any opinion thereon and send back the cases to the trial Court for decision on all other issues in the suit including the additional issue framed by me, except the issues on notices and on the maintainability of the suit, which in agreement with the courts below, have been held in favour of the plaintiff. The trial Court will afford opportunity to the parties to adduce further evidence in support of their respective cases and dispose of the suits in accordance with law with utmost expedition on materials already on record and on further materials as may be made available to it by the parties. I further add that I am expressing no opinion on the merits of the cases or on findings on other issues under appeal except on issues held by me in favour of the plaintiff respondent as aforesaid.

15. The appeals are allowed in part as indicated above but there will be no order for costs in the circumstances.

16. Let the records be sent down at once. Let also the additional written statements be sent to the trial Court after retaining a copy thereof in the records of his Court.


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