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2023 Supreme(Cal) 793
IN THE HIGH COURT AT CALCUTTA
SHAMPA SARKAR, J.
Fusie Chung Chen – Petitioner
Versus
Sri Muktalal Shaw – Opp. Party
CO 79 of 2023
Decided On : 01-08-2023
For the Petitioner: Mr. Ramdulal Manna, Ms. Chhabi Sen, Ms. Manju Manna (Dey), Mr. Sayan Mukherjee.
For the Opposite Party : Mr. Sakya Sen, Mr. Pranay Mukherjee.
A person who is a necessary and proper party to a suit should be added as a defendant, even if they have been contesting the suit as a defendant.
Headnote:
PARTNERSHIP FIRM - DISSOLUTION - SUIT FOR EVICTION - ADDITION OF PARTY - SOLE PROPRIETOR - WEST BENGAL PREMISES TENANCY ACT, 1997 - SECTIONS 7(1) AND 7(2) - ORDER 1 RULE 10(2) OF THE CODE OF CIVIL PROCEDURE - ORDER 14 RULE 1 OF THE CODE OF CIVIL PROCEDURE - ORDER 30 RULE 3 OF THE CODE OF CIVIL PROCEDURE - A suit for eviction was filed against a partnership firm and its partners. The partners had died and the petitioner, who was the daughter of one of the partners, claimed to be the sole proprietor of the business and sought to be added as a defendant in the suit. The court held that the petitioner was a necessary and proper party to the suit and should be added as a defendant.
Fact of the Case:
The petitioner, who was the daughter of one of the partners of a partnership firm, sought to be added as a defendant in a suit for eviction filed against the partnership firm and its partners. The partners had died and the petitioner claimed to be the sole proprietor of the business.
Finding of the Court:
The court held that the petitioner was a necessary and proper party to the suit and should be added as a defendant. The court noted that the petitioner had been allowed to contest the suit as a defendant and had also availed of the remedies under the law for protection against eviction. The court also noted that the addition of the petitioner as a party would not change the complexion of the suit, but was necessary for proper and effective adjudication of the suit.
Issues: Whether the petitioner was a necessary and proper party to the suit.
Ratio Decidendi: The court held that the petitioner was a necessary and proper party to the suit because: * The partnership firm had dissolved and the partners who had been impleaded in the suit had died. * The petitioner was running the business as a sole proprietor, upon payment of rent. * The rent was allegedly accepted from the petitioner. * The learned Court had already held that the defendant was not a defaulter. * All such issues raised by the petitioner and by the plaintiff are triable issues as already held by the learned court.
Final Decision: The court allowed the revisional application and directed the learned Court below to add the petitioner as a defendant in the suit and pass necessary orders for amendment of the cause title in the plaint.
JUDGMENT :
(Shampa Sarkar, J.) :
1. This revisional application has been filed challenging the order No.63 dated September 8, 2022 passed in Ejectment Suit No.96 of 2013 re numbered as Ejectment Suit No.5497 of 2014. The order impugned was passed by the learned Judge, 4th Bench, Presidency Small Causes Court, Calcutta.
2. By the order impugned, the application filed by the petitioner under Order 1 Rule 10(2) of the Code of Civil Procedure, was rejected and a date was fixed for evidence of DW, as a last chance.
3. The eviction suit was filed on the ground of default and sub-letting.
4. The petitioner filed a written statement as defendant and questioned the maintainability of the suit. The claim of the plaintiff to be the karta of Mati Lall, Chuni Lall and Mukta Lall Shaw, a Hindu Undivided Family, was denied. The petitioner claimed that the said beauty parlour was a running business and the question of subletting did not arise, and the petitioner was not a habitual defaulter. That petitioner filed an application under Section 36 of the West Bengal Premises Tenancy Act, 1997 being R.C. Case No.128/36/2011 for an order of repair of the suit premises. That the plaintiff/opposite party contested the said proceeding. The prayer for repair was allowed on February 20, 2014. The monthly rent was paid by the petitioner to the plaintiff through an agent Mr. A.K. Chakraborty, who used to receive the monthly rent from the petitioner. That the ejectment suit was not maintainable against Blue Heaven Beauty Parlour, represented by the partners, mentioned in the cause-title of the plaint, as all of them had passed away. The petitioner, as the daughter of Kiam Wong Chung, became a partner along with her mother Chung Tseng Hsiu Ying after her father’s demise. After the demise of her mother, the partnership got dissolved and the petitioner became the sole proprietor of the business, since October 12, 2000. Blue Heaven Beauty Parlour started running as a proprietorship concern. The petitioner obtainined the certificate of enlistment from the Kolkata Municipal Corporation. Electricity connection was also provided by the CESC Ltd. in the petitioner’s name. When a fire broke out in Park Street sometime in 2011, the plaintiff/opposite party wrote a letter dated October 22, 2011 to the business concern, addressing the petitioner as “Madam”. In spite of the aforementioned facts, and having full knowledge that none of the erstwhile partners were alive, Ejectment Suit No.96 of 2013 was filed before the learned Presidency Small Causes Court for eviction and recovery of Khas possession, against a non-existing partnership firm, which had no legal entity being represented by dead persons. Only when a notice had been published in the Telegraph on January 7, 2014, the petitioner came to know about the institution of the suit for eviction and recovery of khas possession in respect of the shop room No.20C situated on the ground floor of premises No.20, Park Street, Shakespeare Sarani Police Station, Kolkata 700016.
5. The petitioner filed an application under Section 7(1) and 7(2) of the West Bengal Premises Tenancy Act, 1997(hereinafter referred to as the said Act). Initially, the defendant in the suit was found to be a defaulter. On an application filed by the petitioner, the said order was modified by the learned Court below, inter alia, holding that the money receipts and challans which were filed by the petitioner, would show that the defendant was not a defaulter.
6. The plaintiff/opposite party filed an application under Order 14 Rule 1 of the Code of Civil Procedure for determination of two preliminary issues:-
a) Whether the petitioner was competent to file the application and written statement in the suit and/or to represent the defendant in the suit;
b) Whether there was any relationship of landlord and tenant between the plaintiff and the petitioner.
7. The learned Court rejected the said application on the ground that the above issues involved mixe
