Chhotelal Pyarelal v. Shikharchand

Case Details & Bench

Court: High Court
Hon'ble Judges: P. N. Bhagwati
Sabyasachi Mukharji
Judgment Date: 1985-07-27
Court Decision / Holding: Appeal allowed; the Court held that a petition for eviction cannot be maintained against a partnership firm in the firm name under the HRC Order since CPC does not apply to HRC Order; misdescription can be corrected by amendment. The case was remitted to the Rent Controller with directions to amend the title to add the partners as respondents and to dispose of the petition on merits expeditiously, with written statements to be filed and a six-month cap for final disposal; no costs.
Final Disposition: Appeal allowed; case remitted with directions for amendment and disposal on merits; no costs.

Parties to the Case

Appellants / Petitioners

M/s. Chhotelal Pyarelal

Respondents

Shikharchand

Legal Representation & Advocates

Counsels for Petitioners

• U.R. Lalit
• Mrs. J. Wad

Counsels for Respondents

• V.A. Bobde
• A.G. Ratnaparkhi

Case Synopsis & Summary

In a eviction petition filed by the tenant/landlord Shikharchand against the partnership firm M/s. Chhotelal Pyarelal under Clauses 13(3)(vi) and (vii) of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 (HRC Order), the firm challenged the maintainability of proceedings against it in the firm name. The firm argued that the Code of Civil Procedure (CPC) does not apply to HRC Order proceedings, and that an eviction petition cannot be maintained against a firm without joining the individual partners, since the firm is only a compendious name for its partners. The Bombay High Court had held that such an eviction petition was maintainable against the firm without joinder of partners, which prompted the special leave appeal to the Supreme Court. The Supreme Court clarified that it is only by virtue of Order 30, CPC, that a firm can sue or be sued in its own name; however, CPC does not apply to HRC Order proceedings, making a petition for eviction against a firm in its firm name untenable. Nevertheless, misdescription of respondents can be corrected at any stage; the partners of the firm are before the court in effect. The Court allowed the respondent to amend the title by adding the partners as respondents and remitted the case back to the Rent Controller for disposal on merits with directions for timely completion, and no costs were awarded. This decision marks a crucial distinction between form and substance in eviction actions under the HRC Order.

Provisions of Law Cited

Clause 13(3)(vi) and (vii) of the CP and Berar Letting of Houses and Rent Control Order, 1949Code of Civil Procedure, 1908Order 30, CPCHRC Order, 1949

Legal Doctrines & Maxims

The firm is a compendious name for the partners constituting it.
Misdescription of respondents can be corrected at any stage of the proceedings.

Submissions & Arguments

Contentions of Appellants / Petitioners

The eviction petition under the HRC Order cannot be maintainable against a partnership firm in its firm name since the CPC does not apply to HRC proceedings; the firm is a composite name for the partners and, therefore, the action should be treated as against the partners, who must be joined as respondents. The misdescription of respondents is a procedural defect that requires correction.

Contentions of Respondents

The landlord contended that eviction proceedings under the HRC Order can be maintained against a firm without joinder of partners, asserting that misdescription may be corrected by amendment and the matter can proceed with the amended title.

Extracted Judgment Text

Exact text extracted from official judgment records.

A CHHOTELAL PY AREL AL THE PARENERSHIP FIRM AND ORS. _v._ SHIKHARCHAND n _July_ _'27,_ _1984_ [P.N. BHAGWAT! AND SABYASACHI MUKHARJJ, JJ.] C _Central Provincei and Berar Letting_ _of Houses and Rent Control Order,_ _1949, Clause 13(3) (vi) and (vii)-Eviction Appltcation against partnership_ _firm_ _in_ _the firm name as_ _respondent-Whether_ _1naintainable-Non-joinder of_ _partners_ _-Wherher misdescription and_ _can_ _be_ _corrected._ ## • D E. F _Code_ _of_ _Civil Proceadure,_ _1908:;_ _0.30-Whether applies to proceedings_ _under C.P. and Berar Letting_ _of_ Hou~es _and Rent_ _Con1rol_ _Order,_ _1949._ In an eviction application, filed by respondent-landlord against the appellant-a partnership firm under Clause 13(3) (vi) and (vii) of the Central Provinces and BJrar Letting of Houses and Rent Control Order, 1949 (HRC Order for short) the appellant raised a preliminary obj!!ction that the application agairist the p:irtnership firm was not maintainable without joining its pJrtners as respondents. The High Court ultim~.tely held that such an application for eviction was maintainable. Hence tho appeal to this Court. Allowing the appeal and remitting the case back to the Rent Con .. troller, HELD : ( 1) It is only by virtue of the provisions of Order 30 of the Code of Civil Procedure that a firm can sue and be sued in its own G name without the partners being impleading co.nominee. But, since the Code of Civil Procedure does not apply to proceedings under the HRC Order, no application for eviction under HRC Order can be maintained against a firm in the firm name. [270D·E) H (2) The firm is merely a compendious name for the partners consti .. A **B** ### • CHHOTELAL _v._ SHIKHARCHAND _(Bhagwati,_ _J.)_ 269 **tuting** **it** **and** **an** **eviction application** **filed** **under** **HRC** **Order** **against** **a** **partnership** **firm** **without joining** **any** **partner constituting the** **firm** **as** **a** **resp0ndent to the application would be merely a case** **of** **misdescription** **of the respondents to the application and this misdescription** **can** **be correct·** ed at any stage of the procedings. [270E-F] **(3)** **In** **the instant case, the Court allowed the respondent** **to** **amend** **the** **title· of** **the original application** **by** **adding** **the** **names** **cf the** **partners** **of the appellant** **firm** **and** **remitted** **the** **case** **back** **to** **the** **case** **Rent** **Controller** for ea~Jy disposal on merits. [270H; 271A] Appeal by Special leave from the Judgment and Order dated the 9th day of April, 1984 of the Bombay High Court in W.P. No. 51of1979 • _U.R. Lalit_ and _Mrs._ _J._ _Wad_ for the Appellants. _V.A. Bobde_ and _A.G. Ratnaparkhi_ for the Respondent. The Judgment of the Court was delivered by ·B1HGWATI, J: The respondent filed an application under clauses 13 (3) (vi) and (vii) of the C.P. and Berar Letting of Houses and Rent Control Order of 1949 (hereinafter referred to as HRC Order) to evict petitioner No. 1 firm of M/s. Chhotelal Pyarelal. The respondent alleged that the firm was a tenant in respect of the premises and eviction of the firm was sought on the ground of bona fide requirement of the respondent for the purpose of his occupation under paragraph (vi). as also for the purpose of making essential repairs under paragraph (vii) of Clause 13(3). The firm of . Chhotelai Pyarelal raised a preliminary contention that no appli· cation could be maintained against a partnership firm and such an application was liable to be rejected. This contention ultimately came to be considered by a learned single Judge of the High Court at Nagpur. The learned single Judge being under the impression that there was still operative a judgment of another single Judge of the High Court taking the view that such an application against a partnership firm was not maintainable, referred this question to a lar!ler Bench. This question accordingly came up before a Division **D** E F G CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3027 of c 1984 A B ##### c D E F G H 270 SUPREME COURT REPORTS [1985) 1 S.CR, Bench of the High Court. It was pointed out before the Division ~ench that undoubtedly a view was at one time taken by a learned smgle Judge tha.t a~ application for eviction agains t a partnership firm was not mamtamable but this view was over ruled by a Division Bench of .the High Court in a Letters Patent appeal filed against that dec1s1on. The Division Bench accordingly held that an applicat10n for eviction under the HRC Order was maintainable against a partnership firm without joining any partner constituting the partnership firm as a respondent to the application. This view laken by the Division Bench is assailed in the present appeal filed by the firm of M/s. Chhotelal Pyar0hl with special leave obtained Jrom this Court. Now, there can be no doubt that since the Code of Civil Procedure does not apply to proceedings under the HRC Order, no application for evictfon 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 Code of Civil Procedure that a firm can sue and be sued in its own name without the partners being impleaded co-nominee. 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 a~ 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. The learned counsel appearing for the respondent has, therefore, applied Jo us for leave to amend the cause title of the original application by adding the names of the partners of the firm of M/s Chhotelal Pyarelal as respondents along with the firm of Mis Chhote !al Pyarelal and carrying out necessary consequential amendments in the body of the application. We allow the application for amendment and remit the case back to the Rent Controller so that he may dispose it of on merits. The respondent will carry out the amendment in the application for eviction within two weeks from the date of receipt of this Order by the Rent Controller and the newly added respondents will file their written statement in answer to the ' _l_ # ###### ' .•..,. I ###### ' , ##### 1 #### ' CHHOTEAAL _v._ SHJKHARCHAND _(Bhagwati,_ _J.)_ 271 application for eviction within a further period of four weeks there· A after. The Rent Controller will then proceed to dispose of the application for eviction as expeditiously as possible and in any event before the expiration of a period of 6 months. There will be no order as to costs of the appeal. ML.A. _Appeal_ _allowed._ B ,