FORMER PARTNERS OF A FIRM WHO HAVE RESIGNED ARE NOT PROPER OR NECESSARY PARTIES IN A SUIT FOR SPECIFIC PERFORMANCE AND INJUNCTION RELATING TO A TRANSACTION THAT TOOK PLACE WHILE THEY WERE PARTNERS.

( 1 ) THE order dated 28th April, 2006 passed by the learned trial Court in Title Suit No. 31 of 2003 in response to an application under order 1 Rule 10 (2) of the Code of Civil Procedure is under challenge in this application under Article 227 of the Constitution.

( 2 ) MR. Madhab Prosad Banerjee and Sri Swadesh Ranjan Ghosh, as petitioners, filed an application under Order 1 Rule 10 (2) read with section 151 of the Code of Civil Procedure praying for allowing them to be added as plaintiff nos. 4 and 5 in the suit. A written objection as against such prayer for addition was filed. Learned Trial Court after taking into consideration all relevant fact and circumstances by the impugned order allowed the said prayer. Learned court thereafter fixed a date for filing of written statement.

( 3 ) LEARNED Counsel for the petitioners while assailing the said order submitted that having regard to the fact that the suit is one for specific performance of contract and injunction, there could be no scope for allowing such persons to be added. It was emphatically submitted that the said Madhab prosad Banerjee and Swadesh Ranjan Ghosh cannot have anything to do with the subject-matter of controversy in the suit. According to learned Counsel, those persons are neither proper not necessary parties.

( 4 ) ON the other hand, learned Counsel for the opposite parties referring to the backdrop of the present case submitted that the peculiarity of the controversy as raised in the suit demands the presence of such persons.

( 5 ) THE suit under reference is one for specific performance of contract and injunction. Plaintiff No. 1 is a partnership firm and plaintiff Nos. 2 and 3 are the present partners of the said firm. The defendants entered into an oral agreement on or about 15th March, 1999 with plaintiff No. 1 in respect of proposed sale of a flat being No. 1a situated on the 1st floor (eastern side) of premises No. 31, Lansdown Place, Kolkata - 700029. The consideration was fixed at Rs. 10,00,000/- only. Plaintiff No. 1 through its partners paid the consideration money and on receipt of the same, the defendants delivered vacant and peaceful possession of the said property which is under exclusive possession and control of the plaintiffs. Two of the partners, namely, Madhab Prosad Banerjee and swadesh Ranjan Ghosh, in the meantime, resigned from the partnership business of plaintiff No. 1 with effect from 15. 3. 2003. They relinquished their share of interest in the partnership assets by mutual oral agreement with the continuing partners. The said partnership firm was thus reconstituted with plaintiff Nos. 2 and 3 accepting the said flat as asset of the firm.

( 6 ) IN order to regularize the title in respect of the said flat, the defendants were requested in writing on or about 12. 2. 2002 to execute and register a Deed of Conveyance in favour of the individual name of plaintiff No. 3, as the firm's nominee. Defendants instead of complying with the same raised certain fake questions.

( 7 ) IT was claimed that in case of any Deed of Conveyance to be registered in favour of any particular individual, there would be question of payment of capital gain tax above the valuation of Rs. 4. 75 lakhs. Plaintiffs agreed to take care of the same.

( 8 ) EVEN thereafter, the defendants did not bother to execute and register a deed of Conveyance in favour of plaintiff No. 3 and not even in favour of the plaintiff No. 1 firm. The defendants were again requested by an Advocate's letter dated 24. 5. 2003. By sending a reply dated 5. 6. 2003, the defendants again raised certain irrelevant pleas and invited the plaintiffs to file a suit. Though the entire amount of consideration money had been paid, the defendants by their reluctant attitude are virtually refusing to execute and register a Deed of conveyance in favour of the plaintiffs and are attempting to cast cloud in respect of the title of the disputed property. The plaintiffs claimed t