Eviction of partners from unregistered firms must adhere to statutory provisions of the Indian Partnership Act regarding legal standing and misrepresentation in earlier suits.

JUDGMENT :

SIDDHARTHA ROY CHOWDHURY, J.

1. Challenge in this appeal is to the judgment and decree passed by learned Civil Judge (Senior Division), 1st Court, Howrah in Title Appeal No. 127 of 2010 affirming thereby ex-parte judgment and decree passed by learned Civil Judge (Junior Division), 3rd Court, Howrah in Title Suit No. 48 of 2010.

2. For the sake of convenience the parties will be referred to as they were arrayed before the learned Trial Court.

3. Briefly stated, the plaintiffs and defendant no. 1 entered into a Partnership at Will on 28th August, 1996 for running business to develop immovable properties under the Style M/s Rishav Builders having its office at 16A Round Tank Lane, Howrah, having share in the ration 40 : 40 : 20 each. The defendant no. 1 being one of the partners having 20% share from time to time had withdrawn a sum of Rs. 9,07,378/- as on 7th April, 2002 against his entitlement of Rs. 2,76,807/-. On and from 7th April, 2002 pursuant to the resolution taken by the partners and declaration given by the defendant no. 1, the said partnership business stood dissolved on and from 7th April, 2002.

4. The defendant however, even thereafter, started claiming the status of one of the partners that led the plaintiffs to file Title Suit No. 193 of 2003 for declaration that the plaintiffs are the partners of the firm Rishav Builders having 50% share each and for further declaration that resolution dated 7th April, 2002 is binding upon the defendant and decree for permanent injunction restraining the defendant no. 1 from claiming any share in the firm.

5. The said suit was contested by the defendant by filing written statement, denying thereby all material allegations made in the plaint. Learned Trial Court after taking into consideration the evidence on record was pleased to pass the judgment and decree in favour of the plaintiffs.

6. It is contended further that with the pronouncement of judgment in Title Suit No. 193 of 2003 and decree in favour of the plaintiffs and consequent upon dismissal of Title Suit No. 79 of 2004 filed by Jagadamba Singh, the defendant no. 1, the plaintiffs filed the suit being Title Suit No. 48 of 2010 for eviction of defendants from the suit property which they have been occupying as licensee under the plaintiff as they failed to deliver peaceful vacant possession after the revocation of license.

7. However, upon the service of summon of the suit the defendants did not appear before the learned Trial Court in terms of the summon and learned Trial Court was pleased to proceed with the ex-parte hearing of the suit. 16th April, 2010 was fixed for ex-parte argument and 19th April was further posted for order.

8. On 19th April Jagadamba Singh, the defendant no. 1 entered into appearance by filing Vakalatnama and prayed before the Court for an order directing the plaintiff to supply the copy of the plaint. Learned Trial Court posted the suit for order on 29th April, 2010 when the defendant no. 1 filed another application seeking inspection of the suit record and 7th May, 2010 was fixed for hearing of the petitions filed by the defendant no. 1 with a direction to serve copy upon the plaintiff.

9. As the presiding officer was on leave on 7th April, 2010 the matter was posted on 12th May, 2010 under the same hearing. On 12th May, the defendant filed two applications before the learned Trial Court seeking dismissal of the suit for non-compliance of the order of the Court and for adjournment. But defendant no. 1 neither filed any written statement nor any other petition showing good cause for his non-appearance on the date so fixed and for vacating the order by which the suit was posted for ex-parte hearing.

10. Therefore, learned Trial Court rejected the petition filed by the defendant no. 1 and posted the suit for or