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PETITIONER: CHHOTELAL PYARELALTHE PARENERSHIP FIRM AND ORS.

       Vs.

RESPONDENT: SHIKHARCHAND

DATE OF JUDGMENT27/07/1984

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. MUKHARJI, SABYASACHI (J)

CITATION:  1984 AIR 1570            1985 SCR  (1) 268  1984 SCC  (4) 343        1984 SCALE  (2)125  CITATOR INFO :  F          1989 SC 865  (3)

ACT:      Central Provinces  and Berar Letting of Houses and Rent Control Order  1949, Clause  13(3) (vi)  and  (vii)-Eviction Application against  partnership firm  in the  firm name  as respondent-Whether  maintainable-Non-joinder   of  partners- Whether misdescription and can be corrected.      Code of  Civil Procedure,  1908,O.30-Whether applies to proceedings under  C.P. and Berar Letting of Houses and Rent Control Order, 1949.

HEADNOTE:      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 Berar Letting  of Houses  and Rent  Control Order, 1949 (HRC Order  for   short)  the   appellant  raised  a  preliminary objection that  the application against the partnership firm was  not   maintainable  without  joining  its  partners  as respondents. The  High Court  ultimately held  that such  an application for  eviction was maintainable. Hence the appeal to this Court.      Allowing the  appeal and remitting the case back to the Rent Controller, ^      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  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]      (2) The  firm is  merely a  compendious  name  for  the partners consti- 269 tuting it  and an eviction application filed under HRC Order against a  partnership  firm  without  joining  any  partner constituting the  firm as  a respondent  to the  application would be  merely a case of misdescription of the respondents to the  application and this misdescription can be corrected at any stage of the proceedings. [270E-F]

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    (3)  In   the  instant  case,  the  Court  allowed  the respondent to amend the title of the original application by adding the  names of  the partners of the appellant firm and remitted the case back to the case Rent Controller for early disposal on merits. [270H; 271A]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3027 of 1984      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. 51 of 1979.      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      BHAGWATI, 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 Chhotelal Pyarelal  raised a  preliminary contention that no application 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 larger  Bench. This question accordingly came up before a Division 270 Bench of  the High  Court. It  was pointed  out  before  the Division Bench that undoubtedly a view was at one time taken by a  learned single  Judge that an application for eviction against a  partnership firm  was not  maintainable but  this view was over ruled by a Division Bench of the High Court in a Letters  Patent appeal  filed against  that decision.  The Division Bench  accordingly held  that  an  application  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  taken by  the Division  Bench is  assailed in the present appeal  filed by the firm of M/s. Chhotelal Pyarelal with special leave obtained from 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 eviction 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

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application. It  would be merely a case of misdescription of the respondents  to the  application and this misdescription can be  corrected at 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  to 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  M/s Chhotelal 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 271 application for  eviction within  a further  period of  four weeks thereafter.  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. M.L.A.    Appeal allowed. 272