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 ? (

Click Here to Read the rest of this document