M/S. Wrangle Investment Limited vs M/S. Mahendra Builders And Ors
2023 Latest Caselaw 12100 Bom

Bombay High Court

M/S. Wrangle Investment Limited vs M/S. Mahendra Builders And Ors on 5 December, 2023

2023:BHC-AS:36078
                      This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023
                                                                                      1-WP-10994-2019.doc


                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CIVIL APPELLATE JURISDICTION

                                        WRIT PETITION NO. 10994 of 2019

                               M/s. Wrangle Investment Limited,
SHARADA                        a company registered under Indian Companies
RANGNATH
WAHULE                         Act having its office at 2nd Floor, "CLIFFLET",
Digitally signed by
SHARADA
                               Sir Pochkhanwalla Road, Worli,
RANGNATH WAHULE
Date: 2023.12.05               Mumbai - 400 025.                          ...Petitioner
14:21:22 +0530



                                        Versus
                       1.      M/s. Mahendra Builders,
                               a partnership firm, registered under the
                               Indian Partnership Act and having their
                               address at "CLIFFLET", Sir Pochkhanwalla
                               Road, Worli, Mumbai - 400 025.
                       2.      Mahendra V. Shah (Since deceased)
                               Indian Inhabitant, carrying on business
                               in the name and style of M/s. Mahendra
                               Builders, as sole proprietor having
                               Address at "CLIFFLET",
                               Sir Pochkhanwalla Road, Worli,
                               Mumbai - 400 025.
                       3.      M/s. Bhram Deo Holding & Trading Ltd.
                               A company registered under Indian
                               Companies Act having its office at
                               2nd Floor, "CLIFFET",
                               Sir Pochkhanwalla Road, Worli,
                               Mumbai - 400 025                   ...Respondents
                                 ____________________________________
                       Mr. G.S. Godbole, Senior Advocate i/by Ms. Eventa A.
                       Gonsalves a/w Mr. Reyden L. Gonsalves for the Petitioner.
                       Mr. Aspi Chinoy, Senior Advocate a/w Mr. Rohaan Cama, Mr.
                       Rohan Dakshini, Ms. Shweta Jaydev, Azraa Millwala i/by
                       M/s. Rashmikant and Partners for Respondent No.1.
                                 ____________________________________



                                                             1/31
                       Sharda Wahule
                       Sunny Thote


                      ::: Uploaded on - 05/12/2023                            ::: Downloaded on - 29/02/2024 00:04:50 :::
             This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023
                                                              1-WP-10994-2019.doc


                      CORAM                        : RAJESH S. PATIL, J.


                      RESERVED ON                  : 7 OCTOBER, 2023
                      PRONOUNCED ON : 5 DECEMBER, 2023

JUDGMENT :

1. This Writ Petition filed under Article 227 of the

Constitution of India, challenges Judgment and Order dated

26th September, 2019 passed by the Court of Small Causes in

Interim Notice No. 760 of 2002, thereby permitting the

Plaintiff (Respondent No. 1 herein) to carry out the

amendment to the plaint i.e. T.E. & R. Suit No.68/73 of

2001, which in pending in the Court Small Causes at

Bombay.

FACTS :-

2. One Mr. Mahendra V. Shah filed a T.E. & R. Suit No.

68/73 of 2001, in his capacity as proprietor of M/s.

Mahendra Builders, against the present Petitioner and

Respondent No. 3, on the ground of sub-letting under

Section 41 of the Presidency Small Causes Court Act, for

eviction of the Petitioner from the premises situated on the

Second Floor of the building known as "CLIFFLET", Worli,

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

Mumbai, admeasuring around 4000 sq.ft. carpet area, being

commercial premises (for short 'the suit premises').

3. In the same year of filing the Suit, on 19 th

September, 2001, Mr. Mahendra Shah died. After the death

of Mahendra Shah, on 16th February 2001, his wife Pratibha

and his daughter Shirin filed an Interim Notice No.259 of

2002 in the pending suit, to bring them on record in place of

a deceased Mahendra Shah. So also, they preferred an

Interim Notice No.626 of 2002, seeking an order of

injunction against the Petitioner and Respondent No.3.

4. On 25 October 2002, Pratibha and Shirin filed an

Interim Notice No.760 of 2002, praying therein;

(i) for withdrawal of Interim Notice No.259 of

2002 and;

(ii) also to allow them to Amend the plaint, so

as to correct the misdescription of the plaint by deleting

name of Mr. Mahendra Shah from the proceedings and the

description of original plaintiff as sole proprietor of

Mahendra Builders be substituted as Mahendra Builders

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

Partnership Firm instead.

5. While these Interim Applications were argued on

different dates and were pending for disposal, the eviction

suit itself got dismissed for default on 12 June 2003, when

neither the plaintiff nor the defendants were present in the

Court. As soon as Pratibha and Shirin realized that the suit

itself was dismissed, while the arguments on interim notices

were made on different dates, they preferred an Application

being Miscellaneous Notice No.151 of 2004 for Restoration

of Suit and Interim Applications.

6. As Interim Notice No.760 of 2002, the plaintiff has

prayed for withdrawal of Interim Notice No.259 of 2002. By

an Order passed in Interim Notice No.760 of 2002, dated 26

March 2004, the Interim Notice No.259 of 2002 was

withdrawn. While the Interim Notice No.760 of 2002 was

adjourned for hearing on remaining prayers (Amendment).

7. Miscellaneous Notice No.151 of 2004, was

thereafter heard and was made absolute by Order dated 29

March, 2006, thereby the Suit was restored back to file

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

along with Interim Notice therein. The Petitioner/defendant

being aggrieved by the Order dated 29 th March, 2006 filed a

Revision Application before the Division Bench of Small

Causes Court challenging the Restoration of Suit. The said

Revision Application was heard by the Division Bench of

Small Causes Court and by its Order dated 7 December,

2006 the said Revision Application was dismissed. Against

the said Order passed by the Division Court, the defendant

being dissatisfied, filed a Writ Petition in this Court. The said

Writ Petition was dismissed by this Court and SLP filed by

the defendant before the Supreme Court was also dismissed.

8. Interim Notice No.760 of 2002 was thereafter

taken up for hearing on remaining prayers by the Court of

Small Causes. In the meanwhile, the Defendant No.1

(Wrangle) filed Suit, to declare them as a tenant of the suit

premises against Mahendra Builders, a Partnership Firm and

its partners Pratibha and Shirin.

9. The Single Judge of the Small Causes Court, heard

Interim Notice No.760 of 2002 on remaining prayers and by

his Order dated 26 September, 2019 allowed the said

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

Interim Notice thereby permitting the Respondent No.1 to

carry out the Amendment as sought in the said Interim

Notice.

10. Being aggrieved by the Order dated 26 September,

2019, passed by Single Judge of Small Causes Court, in

Interim Notice No.760 of 2002, Petitioner who is the

Original Defendant No.1 has filed the present Writ Petition.

11. Mr. G.S.Godbole, learned Senior Advocate made

submissions on behalf of the Petitioner.

11.1. Mr. Godbole submitted that after the death of

Original Plaintiff/Mahendra Shah, an application to bring

on record the legal heirs could have been made within 90

days as per the provisions of Article 120 of the Limitation

Act. He further submitted that within a further period of 60

days, an application for condonation of delay could have

been preferred under Article 121 of Limitation Act. He

submitted that in the present proceedings within the

extended period of two months under Article 121, an

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

Application in the form of Interim Notice No.259 of 2002

was preferred by the legal heirs of the deceased Mahendra

Shah. Mr. Godbole further submitted that after the statutory

period of 90 days the suit was abated and as within a

further period of two months, an application for restoration

of suit and setting aside of abatement was made and the

same could have been heard on merits and could have been

allowed.

11.2. Mr. Godbole further submitted that the legal heirs

of Mahendra Shah did not think it proper to argue the

Interim Notice No.259 of 2002 for setting aside the

abatement and they withdrew the said interim notice, which

according to Mr. Godbole has proved to be fatal to them as

interim notice to set aside of abatement is withdrawn. The

suit is not on the file of the Court and no further application

for amendment could have been entertained by the Court.

11.3. Mr. Godbole further submitted that under Section

42(c) of the Indian Partnership Act, once the partnership is

at Will and out of the two partners, if one partner dies, the

firm automatically results in dissolution. A subsequent

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

application by so called partners thereafter, to add them as a

new partners is not sustainable in law. Even though, it may

be stated in the records of the Registrar of Firms (for short

"ROF") that they become partners from a previous date i.e.

in the present proceedings on the date of the death of the

partner is of no consequence because the firm is not in

existence when one of the two partners has died.

11.4. Mr. Godbole submitted that misdescription could

have been corrected by the Original Plaintiff i.e. Mahendra

Shah, when he was alive which could have been totally

different case and in all probables the said Application could

have been allowed.

11.5. Mr. Godbole further submitted that this is a total

different case where a sole plaintiff files a Suit; and after a

period of 90 days from the death of the sole plaintiff, there

is an automatic abatement and the suit is no more on

records of the Court. And even though the legal heirs or the

partners of the firm believe that the suit should be restored,

the abatement of the suit must first be set aside and only

thereafter it is possible to change the misdescription of the

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

suit from a Proprietor Firm to a Partnership Firm.

11.6. Mr. Godbole referred to following judgments on

Article 120 of the Limitation Act to buttress his submissions.

i. Anokhe Lal V/s. Radhamohan Bansal And Others1

ii. Commissioner of Income Tax, Madhya Pradesh and

Nagpur and Bhandara V/s. Seth Govindram Sugar

Mills.2

iii.Commissoner of Income Tax V/s. Sherally

Meherally and Sons.3

iv. Mithailal Dalsangar Singh And Others V/s. Annabai

Devram Kini And Others.4

v. Gururm Singh (D) Thr. Lrs. And Others V/s.

Gurbachan Kaur (D) by Lrs. And Others5.

vi. Deepak Varma V/s. Daya Nand6.

11.7. Mr. Godbole concluded his arguments by

1 (1996) 6 Supreme Court Cases 730 2 AIR1966SC24 3 1997 SCC OnLine Bom 744 4 (2003) 10 SCC 691 5 AIR 2017 SC 2419 6 2019 SCC OnLine Del 8951

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

submitting that this Writ Petition deserves to be allowed, in

view of the legal proposition laid down by the Supreme

Court.

12. On the other hand Mr. Aspi Chinoy, learned Senior

Advocate made his submission on behalf of the Respondent

Nos.1 and 2.

12.1. Mr. Chinoy submitted that in this proceedings, the

eviction suit was filed by the Original Plaintiff in the year

2001, and even after 22 years, the trial has not started. He

further submitted that the Petitioner, who is the Defendant

in the eviction suit before the Small Causes Court, has made

all endeavours to see that the suit does not see the light of

the day. He submitted that even an interim notice for

restoration of the suit which was dismissed in default, took

seven years for restoration.

12.2. Mr. Chinoy submitted that the eviction suit filed in

the year 2001, was on the ground of change of user, and

bona fide requirement and the Petitioner is not entitled to

protection under section 3(1)(b) of the Maharashtra Rent

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

Control Act as the Petitioner and Respondent No.3

companies both have a share Capital of One Crore or above.

12.3. Mr. Chinoy submitted that document of ownership

of the suit building is of partnership firm by name

"Mahendra Builders" therefore, the suit could only be filed

by the partnership firm Mahendra Builders. Hence, the suit

filed by Mahendra Shah as proprietor of Mahendra Builders

was certainly a misdescribed suit and it was necessary to

bring on record the "Real" Plaintiff.

12.4. Mr. Chinoy submitted that once the Petitioner

themselves had filed R.A.D. Suit in the year 2018, for

declaring them as a tenant and once they themselves had

arrayed the partnership firm along with the present partners

"Pratibha" and "Shirin", as party defendant, it does not lie in

the mouth of the Petitioner now to say that the partnership

firm can't be brought on record in the present pending suit.

12.5. Mr. Chinoy further submitted that the Amendment

once carried out, it relates back to the date of filing of the

suit. Mr. Chinoy referred to Sections 59, 60, 61, 62 and 68

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

of the Indian Partnership Act. Mr. Chinoy submitted that

once the "Registrar of Firms" certifies that the new partners

are being inducted in the firm, the said entry goes back to

an earlier date when Mahendra Shah, died.

12.6. Mr. Chinoy further submitted that the Revisonal

Court has correctly recorded its finding while dealing with

the Order passed in Miscellaneous Notice No.151 of 2004,

thereby restoring the suit.

12.7. Mr. Chinoy further submitted that once "Pratibha

and Shirin" realized, the mistake committed by the deceased

Mahendra Shah while filing the suit, the only option for

them was to amend the Plaint by disclosing to the Court that

they are the partners of the Firm "Mahendra Builders" and

the ownership of the building is with "Mahendra Builders".

12.8. Mr. Chinoy further submitted that the

Petitioner/Defendant was well aware as to who is the owner

of the suit building, as the letter dated 5 October 1983, by

which the tenancy was created, was signed by Mr. Mahendra

Shah in the capacity of Partner of M/s. Mahendra Builders.

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

He further submitted that therefore, the Petitioner has no

case and they could not take a defence that the suit filed in

the name of Mahendra Builder as proprietor cannot be now

amended.

12.9. Mr. Chinoy further submitted that it is therefore

not left to the Defendant to argue that the firm is not in

existence after the death of Mr. Mahendra Shah.

12.10. Mr. Chinoy further submitted that there can't be

any abatement where the suit itself was misdescribed. Mr.

Chinoy submitted that the test in such a case would be "who

is the Real Plaintiff".

12.11. Mr. Chinoy submitted that provisions of Order 13

Rule 4 are applicable to the present proceedings. Mr. Chinoy

referred to the following three judgments in support of his

submissions:

1. Kurapati Venkata Mallayya and Another Vs. Thondepu Ramaswami and Another 7

2. Jaijai Ram Manoharlal Vs. National Building Material Supply 8

7 AIR 1964 SC 818 8 "1969 " (1) SCC 169

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

3. Suraj Bhan Abnil Kumar & Anr Vs. Molu Ram Kapoor Chand of Delhi High Court 9

12.12. Mr. Chinoy submitted that the Judgment and

Order allowing the Amendment, passed by the Small Causes

Court has been correctly passed and no reasons has been

put-forward by the Petitioner to entertain the present Writ

Petition. Therefore, the Writ Petition should be dismissed.

ANALYSIS & CONCLUSION :

13. I have heard the counsel for both the sides, and I

have gone through the documents on record.

14. In the present proceedings the suit for eviction was

filed in the year 2001. The title of the plaint of the said

eviction suit is reproduced herein below:

IN THE COURT OF SMALL CAUSES COURT AT MUMBAI

T.E.& R. SUIT NO. 68/73 OF 2001

MAHENDRA V. SHAH,

Indian Inhabitant, Carrying on business in the

Name and style of M/S. Mahendra Builders

as sole Proprietor

having address at "CLIFFLET",

Sir Pochkhanwalla Road, Worli,

Mumbai - 400 025. ..Plaintiff

9 (1999) SCC OnLine Del 589

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

VERSUS

1. M/S BHRAM DEO HOLDING & TRADING LTD

A Company registered under Indian Companies Act)

having its office at on the 2nd floor, "CLIFFLET" )

Sir Pochkhanwalla Road, Worli, Mumbai - 400 025 )

2. M/S WRANGLE INVESTMENT LIMITED )

A Company registered under Indian Companies Act )

having its office at on the 2nd floor, " "CLIFFLET", )

Sir Pochkhanwalla Road, Worli, Mumbai - 400 025 ) ..Defendant

[Emphasis Supplied]

16. Thus undisputably the eviction suit was filed by

a proprietorship firm of M/s "Mahendra Builders" through

Mahendra Shah as a proprietor. After filing of the suit in the

year 2001 itself, Mr. Mahendra Shah died. It is submitted

before me that Mr. Mahendra Shah had many such business

concern by which he was operating. Few of them were (1)

Mahendra Builders, a duly registered Partnership firm. (2)

Mahendra containers Pvt. Ltd, etc.

17. In the present proceedings, the only question to be

answered is whether a Party to whom a right to sue arises,

can they at a subsequent stage be allowed to be added as

Plaintiffs on the ground of misdescription. There is no

dispute that such a misdecription can be allowed. However,

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

the issue which is raised by the Petitioner (Original

Defendant) is that once a suit is filed by a person as a

proprietor; after the death of the said person, after the

statutory period to bring on record the legal heirs has

elapsed and the suit been automatically abated, Whether

without setting aside the abatement, there can be

amendment to the plaint on the ground of misdescription of

the plaintiff ?

18. In my opinion the question would also arise

whether any prejudice is caused to the Defendant by the

courts allowing the amendment of misdescription of Plaint.

It will be pertinent to note here that the Petitioner during

the pendency of application for amendment before the

Small Causes Court, on their own went ahead and filed a

suit being R.A.D. Suit, against the partnership firm and its

partners seeking a declaration that they are 'Tenant' of the

suit premises. A copy of Plaint along with exhibits was

tendered in Court on 4 October,2023. The title of the Plaint

is re-produced hereinbelow:-

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

IN THE COURT OF SMALL CAUSES COURT AT MUMBAI

R.A.D. SUIT NO. 648 OF 2018

STAMP NO. 1455 OF 2018

M/s. WRANGLE INVESTMENT PVT. LTD.

A Company registered under Companies Act

1956, and having its registered office at

flat no. 301, A Wing, Prakash Kunj, B. P. Road

Opp. Shrinath Apartments Bhayander (East),

Thane 401 105 and also having address at

Clifflet, 2nd floor, Sir Pochkhanwala Road,

Worli, Mumbai 400030. .. Plaintiffs

Versus

1. SMT. PRATIBHA MAHENDRA SHAH,

Age 81 years, Occ: Business,

Having address at Clifflet,

Sir Pochkhanwala Road, Worli,

Mumbai 400030.

2. SMT. SHIRIN MAHENDRA SHAH,

Age 38 years, Occ: Business,

Having address at Clifflet,

Sir Pochkhanwala Road, Worli,

Mumbai 400030.

M/S. MAHENDRA BUILDERS

A Partnership firm, having its office at Clifflet,

Sir Pochkhanwala Road, Worli,

Mumbai 400030. .. Defendants.

[Emphasis Supplied]

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

19. Paragraph nos 1,2, and 8 of the Plaint are reproduce

herein below :-

1. One Mr. Mahendra Vithaldas Shah was during his life time the partner of MIs. Mahendra Builders, the third Defendant, the owner and landlord of the building known as Clifflet situated at Sir Pochkhanwala Road, Worli, Mumbai 400030,and situated on land bearing C.S. No. 783-A, Worli Division and hereinafter referred to as "the said Property"

2. The said Mahendra Vithaldas Shah, partner of the third Defendant, passed away on 19.9.2001, leaving behind his widow, the Defendant No.1 and his daughter the Defendant No.2. The Plaintiffs are informed that the Defendants No. 1 and 2 are the partners of the 3rd Defendant. The Plaintiffs have gathered the fact that the Defendants No. 1 and 2 are the partners of M/s. Mahendra Builders, the Defendant No.3, from the correspondence prior to the suit, in respect of the said property and the correspondence addressed by the Defendant No.3. The Plaintiffs have impleaded the Defendants Nos. 1 and 2 abovenamed, as heirs of the deceased landlord Shri Mahendra Shah and also as partners of the Partnership Firm, in the name and style of M/s. Mahendra Builders i.e. the Defendant No.3.

8. As stated herein the said M/s. Mahendra Builders by its then Partner, Shri Mahendra Shah, signed and executed letter dated 5.10.1983, granting to the said Brahmadev Holding & Trading Pvt. Ltd. the permission and entitlement to transfer the tenancy in respect of suit premises.

[Emphasis supplied]

20. In the said declaratory suit, the present

Respondent No. 1 (partnership firm) and its two partners

i.e., Pratibha and Shirin are arrayed as Defendants. So also,

in the said R.A.D. suit, Letter dated 5 October 1983, is

enclosed as Exhibit 'A'. For ease of reference the said letter

dated 5 October 1983, is scanned and reproduced herein

below :

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

[Emphasis Supplied]

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

21. From the letter dated 5 October 1983 and the

contents of Plaint and cause Title, it can be concluded that

Mr. Mahendra Shah as partner of M/s. Mahendra Builders,

created tenancy of the suit premises in favour of Respondent

No.3 herein. The contents of the said letter dt. 5 October

1983 may not be of much important at this stage for this

court to consider even though some argument was made on

the content of the letter before me.

22. The fact that R.A.D. Suit filed is by the Petitioner

themselves, seeking a declaration of tenancy against the

Partnership Firm M/S. Mahendra Builders in the year 2018,

which shows that, the Petitioners were aware who is the

landlord/owner of suit premises.

23. As far as present eviction proceedings are

concerned, it is the case of the plaintiff in the Plaint that the

suit premises is admeasuring 2000 sq.ft. in a building called

as Clifflet, situated at Worli, Mumbai, and the defendant are

paying rent of Rs. 425/- per month. The eviction suit has

been filed on the ground of subletting, bonafide

requirement and no protection under the Rent Act to the

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

defendant company, as its paid up capital is more than One

Crore.

24. Pratibha and Shirin are not only the partners of

the firm Mahendra Builders, but are also the legal heirs of

deceased Mahendra Shah. Therefore, it is nobody's case that

there are two different entities who have approached the

Court to add them as Plaintiffs. The only issue would be in

what capacity they would be termed as plaintiff whether it

will be they, as partners of M/S. Mahendra Builders or they

as legal heirs of deceased Mr. Mahendra Shah? This

becomes a question to be answered because the suit was

filed by Mr. Mahendra Shah mis-describing him as

proprietor of M/s. Mahendra Builders.

25. The partners of Mahendra Builders, Pratibha and

Shirin have brought on record a copy of conveyance of the

suit building 'Clifflet' of the year 1978, in favour of M/s.

Mahendra Builders. Therefore, there is no doubt that the

ownership of the building was with the firm called as M/s.

Mahendra Builders.

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

26. This coupled with the fact that the Original

Tenancy letter dated 5 October, 1983 was addressed by M/s.

Mahendra Builders through its partner Mahendra Shah. It is

a fact known to the Petitioner/ Original Defendant/Tenant

from the date of creation of tenancy. After Maharashtra Rent

Act,1999 came into operation, there is no protection to a

company whose share capital is more than One Crore. It is

the case of the Plaintiff in eviction suit that

Petitioner/Defendant would fall under this category.

27. As far as the issue about death of partner of a

partnership firm having two partners is concerned, the

Partnership Deed in the present proceeding has not been

produced. The Application filed before the Registrar of

Firms, states that the Pratibha and Shirin were brought in as

partners from 19 September 2002. On the same date, it is

shown that Mahendra Shah has been deleted as a partner

pursuant to his death.

28. Section 63 of the Indian Partnership Act makes it

clear that such a dissolution can be considered. Therefore, a

situation does not arise that on death of Mahendra Shah the

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

partnership firm cease to exist. So also it will be pertinent to

note, this entire facts were to the knowledge of the

Petitioner/Defendant. However, they have been taking a

stand in the Small Causes Court about abatement of

eviction suit and even then they went ahead and filed a suit

for declaration of tenancy before the Small Causes Court,

Bombay from the partnership firm and its partners in the

year 2018. Therefore, it would not lie in the mouth of such a

Petitioner/Tenant to raise such an issue.

29. According to the Petitioner, if the suit was abated then

there could not have been any further dismissal of the suit

and further restoration of the suit. The eviction suit in the

present proceedings has been filed admittedly in the year

2001; and from 2001 till 2023 it has been pending for Trial.

30. The Provisions of C.P. C., Order 1, Rule 10, reads as

under :

Order 1, Rule 10. Suit in the name of wrong Plaintiff -

(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bonafide mistake, and that it is necessary for the

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties.--The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) ......................

(4)....................

(5).....................

Therefore, the court has enough power of satisfied that the

suit has been instituted in the name of wrong person as

Plaintiff, through a bonafide mistake, order any other

person to be substituted as Plaintiff.

31. Mr. Godbole referred to the Supreme Court judgment

of Anokhelal (supra) to support his argument. In the said

judgment the suit for eviction was filed by landlord against

tenant (Partnership Firm). On the death of one partner, his

son filed an application under Order 1 Rule 10(2), which

was rejected. Thereafter, second application was filed under

the provisions of Order 30, Rule 4 of CPC for getting himself

impleded. The said second application was allowed, when

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

infact the suit was already decreed and even the Appeal

filed Challenging the decree was disposed of confirming the

decree. Hence, in this background, the Supreme Court set

aside the order of impleadment.

32. The Second judgment refereed was of Seth Govindra

Sugar Mills (supra) decided by the Supreme Court. The facts

in the said judgment were that one of the two partners died

on 9 December, 1945. The another partner continued

business in the name of the firm. For the assessment year

1950-51, the said firm applied for registration on the basis

of agreement of Partnership Firm dated 28 September, 1943.

The income tax authorities refused registration on the

ground that after the death of one partner, the Partnership

Firm is dissolved and thereafter another partner, and the

minors could be treated only as an association of persons.

The Supreme Court answered the two questions referred to

as : (i) For the assessment year 1950-51 the status of

assesses was that of a firm within the meaning of Section

16(1) (b) of Income Tax Act. (ii)The tribunal misdirected

itself in law in reaching the conclusion that the parties could

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

not be regarded as partners.

33. Therefore the facts in both the judgments are quite

different then the facts in the present proceedings,

therefore, according to me the ratio laid down by Supreme

Court in both the judgments could not be applicable to the

present proceedings.

34. Another judgment referred by Mr. Godbole is of

Sherally Meharralyy (supra) which was decided by the

Division Bench of this Court. The facts in this judgment

were that on 27 June, 1977, partner died, and on 5

September, 1977 the sole surviving partner entered into a

fresh deed of Partnership with the widow. Therefore,

according to Assessee two different firms existed during

these two periods. However, the Income Tax Officer did not

accept this contention of assessee as he was of the opinion

that the firm did not stand dissolved on death of one of the

two partners and the old Partnership continued to exist.

According to him it was a case of mere change of

constitution of firm as contemplated by Section 187 of

Income Tax Act.

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

35.1. Even the fact in Sherally Meharralyy (supra) were

quite different than that in the present proceedings

therefore, the ratio laid down in the facts of Sherallya

Meharralyy (supra) cannot be made applicable to the

present proceedings where the facts are quite different.

36.1. In Mithailal Dalsangar (supra) the Supreme Court held

that the abatement of suit occurs automatically by operation

of law, on failure to move an application for bringing the

LR's on record within the prescribed period of limitation.

36.2. In Gurnam Singh (supra) the Supreme Court held that

before the Second Appeal could be taken up for hearing, the

Appellant and two Respondents had expired, therefore

judgment in Second Appeal passed by the High Court

against deceased defendant is without jurisdiction and

hence nullity.

36.3. In Dipak Varma (supra) Single Judge of Delhi High

Court held that after a statutory period as contemplated in

Article 120 and 121 of the Limitation Act is over there is an

automatic abatement.

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

36.4. I am bound by the ratio laid down in the above

judgments by the Supreme Court. But in the present

proceedings, the suit itself was filed by a wrong person

therefore, there was a misdescription.

37.1. The judgment referred by the Respondent /

landlord of Kurapati V Mallayya (supra), in which the

Supreme Court held that where there is a case of

misdescription of parties, it is open to the Court to allow the

Amendment to the plaint at any time and the question of

limitation would not arise in such a case.

37.2. Similarly in the case of Jai Jai Ram Manohar Lal

(supra) the Supreme Court held that a party cannot be

refused a relief because of some mistake and negligence.

The Court always gives relief to Amend pleadings to a party

unless it is satisfied that the party applying has acted

malafide. Further, it was held that since the name in which

the action was instituted was merely a misdescription of the

Original Plaintiff, no question of limitation arises; the plaint

must be deemed on Amendment to have been instituted in

the name of real plaintiff, on the date of which it was

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

originally instituted.

37.3. In the judgment of Surajbhan Anil Kumar

(supra) Delhi High Court held that it is established by the

record that on the date of the filing of the suit, the plaintiff

was a proprietorship firm and not a Partnership Firm.

Therefore, it is cannot be said that the suit was instituted by

an Unregistered Partnership Firm. At best it is a case of mis-

description of a party, mainly the plaintiff and if in order to

describe a plaintiff properly, an Application is filed in the

Court seeking for Amendment of the plaint such an

Application is required to be allowed.

37.4. I am of the opinion that the ratio laid down by

the above three judgments is squarely applicable to the facts

of the present proceedings.

38. For the reasons recorded above the view taken by

the Single Judge of Small Causes Court of allowing the

Interim Notice No.760 of 2004, thereby permitting the

Plaintiff to carry out amendment in view of the ratio laid

down by Supreme Court and on the ground that the

Sharda Wahule Sunny Thote

This Order is modified/corrected by Speaking to Minutes Order dated 13/12/2023 1-WP-10994-2019.doc

Conveyance is in favour of the Partnership firm, according to

me is a correct view. In my opinion there remains no doubt

that the proposed amendment is essential for the purpose of

determining the real question in controversy between the

parties.

39. Therefore, this Writ Petition is dismissed. No

cost.

40. The hearing of T.E.&R. Suit No. 68/73 of 2001, is

expedited. The Judge of the Court of Small Causes Bombay,

to make an endeavour to hear and to dispose of Suit within

a period of 12 months from today. All the parties to the suit

will co-operate and will not seek unnecessary adjournments.

41. All parties to act on authenticated copy of this

Order.

(RAJESH S. PATIL, J.)

42. At this stage, advocate for the Petitioner seeks stay

to the operation of this order. Request made is rejected.

(RAJESH S. PATIL, J.)

Sharda Wahule Sunny Thote