Fusie Chung Chen vs Sri Muktalal Shaw
2023 Latest Caselaw 4595 Cal

                     IN THE HIGH COURT AT CALCUTTA
                       CIVIL REVISIONAL JURISDICTION
                               APPELLATE SIDE


Present:
Hon'ble Justice Shampa Sarkar


                               CO 79 of 2023

                            Fusie Chung Chen
                                    vs.
                            Sri Muktalal Shaw


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.


Hearing concluded on: 21.06.2023
Judgment on: 01.08.2023


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 mixed questions of law and fact and could not be

decided at the preliminary stage, without evidence. The learned Court

further held that as the plaintiff had not challenged the maintainability of

the petitions under Sections 7(1) and 7(2) of the West Bengal Premises

Act, 1997, by adopting a circuitous route, the plaintiff could not

eliminate any contest to the suit. The defendant could not be non-suited.

8. When the evidence proceeded and progressed to some extent, the

petitioner filed an application for addition of party. The petitioner reiterated

the averments made in the written statement and stated that upon the

death of her mother, she started to run the business as a sole proprietor. As

per the deed of partnership dated December 1, 1969, the only daughter of

the fourth partner became a proprietor in terms of Clause 15 thereof. That

the suit was filed against dead persons who were described as partners of

the partnership firm. The suit could not proceed against dead persons. The

partnership firm had dissolved. The plaintiff was also well-aware that the

partners had died and their heirs were not running the business. Thus, the

petitioner was the sole heir of the fourth partner and hence was entitled to

continue her business from the said property. Under such circumstances,

the petitioner was not only a proper party, but was also a necessary party in

the suit.

9. A written objection was filed by the plaintiff. It was contended that

from the very inception, the petitioner was representing the defendant. The

petitioner had filed the application under Sections 7(1) and 7(2) of the West

Bengal Premises Act, 1997 and had also cross-examined P.W.1, namely,

Mukta Lal Shaw. That the application for addition of party was filed only to

delay the process. The fact that the petitioner was the only surviving heir of

the deceased fourth partner, was incorrect. The petitioner was a sub tenant

and an interloper and did not have any manner of right, title and interest in

respect of the property in question. The petitioner was liable to be evicted on

the ground of subletting. The petitioner never represented the partnership

firm. The provisions of Order 30 Rule 3 of the Code of Civil Procedure would

not apply. That a sub-lessee or a sub-tenant did not have any right to be

added as a defendant in a suit for eviction, on the ground of subletting.

10. The said application came up for hearing before the learned Court

below on September 8, 2022. The learned Court below, upon discussing the

facts, rejected the application on the ground that it was an admitted position

that Blue Heaven Beauty Parlour was a tenant under the plaintiff. Blue

Heaven Beauty Parlour was a partnership firm. The partnership firm was

not a juristic person. In the absence of the partners, the right of tenancy

could not be transferred. Upon the death of any partner during the

subsistence of the tenancy, the newly inducted partner could not become a

tenant in the eye of law. Further, as the petitioner failed to show any

document which would indicate that her father was Kiam Wong Chung, the

question of addition of the petitioner, as a party defendant in the suit, did

not arise.

11. Mr. Sakya Sen, learned Advocate appearing on behalf of the

plaintiff/opposite party submitted that the order impugned did not call for

any interference. That the said order had been passed in consonance with

the principles of law. That the suit was for eviction on the ground of default

and subletting. The sub-lessee was not a necessary party in a suit for

eviction. Learned Advocate submitted that a person who represented herself

as a defendant, contested the suit and also cross-examined the P.W.1, could

not be added as a party in a suit which she was already contesting.

12. The following facts are available from the records and the submissions

of the parties:-

a) The petitioner, upon coming to know of the eviction suit from the

publication made in the Daily Telegraph, contested the suit by filing a

written statement, as a defendant;

b) All along, the petitioner's case was that after the death of her father,

she and her mother had become partners sometime in 1997. Upon the

death of her mother, she started running the parlour as the sole

proprietor. When the other partners died, none of the heirs of the

other partners came forward to stake any claim in respect of the said

business. The electricity bill, the certificate of enlistment and other

documents, were all in the name of the petitioner as a proprietor.

Communication was made to the petitioner by the plaintiff. The

plaintiff was well aware that the petitioner was running the parlour.

She was paying the rent to the agent of the plaintiff and had become a

tenant;

c) On the application of the petitioner, the rent controller allowed

repair of the premises on contested hearing, without deciding the

question of tenancy;

d) Applications under Section 7(1) and (2) of the said Act had been

decided at the instance of the petitioner and the defendant was held

not to be a defaulter. The question of relationship of landlord and

tenant was not raised at that stage. No objection was raised by the

plaintiff with regard to the petitioner's right to file the said

applications;

f) Later, two preliminary issues were raised by the plaintiff as to

whether the petitioner was entitled to contest the suit as a defendant

and whether there was any relationship of landlord and tenant

between the petitioner and the plaintiff.

g) The learned Court rejected the application under Order 14 Rule 1 of

the Code of Civil Procedure, on merits, upon holding that as the

issues involved mixed question of law and fact they could not be

decided as preliminary issues. That the plaintiff was indirectly trying

to prevent the petitioner from contesting the suit.

h) The suit proceeded, evidence was recorded. The petitioner was

allowed to cross-examine the plaintiff.

i) The petitioner sought to add herself as a defendant in the suit,

although she was contesting the same as a defendant, when she

allegedly realized that the suit was defective and was running against

dead persons.

13. Admittedly, the partnership firm is not a juristic person. There is no

denial from the side of the plaintiff, in respect of the petitioner's contention,

that the partners who had been impleaded in the suit as representatives of

the partnership firm, had died.

14. The petitioner all along contented that the suit was running against a

partnership firm which had been dissolved long time ago and none of the

alleged partners of partnership firm, who had been impleaded in the suit,

survived. The suit was proceeding against dead persons as also a non-entity.

15. With the aforementioned background, when the petitioner had

specifically averred in the written statement that she had taken over the

business and was running the same since 2000 as sole proprietor, upon

obtaining necessary certificate of enlistment, trade licence etc., and

especially when the learned Court below had allowed the petitioner to file

the written statement and contest the suit, not adding the petitioner would

amount to serious prejudice. The suit would proceed against dead persons.

Moreover, the applications under Sections 7(1) and 7(2) were decided in

favour of the defendant, represented by the petitioner. The learned Court

had rejected the two preliminary issues, namely, relationship of landlord

and tenant and the locus of the petitioner to contest the suit as a defendant,

inter alia, on the ground that such issues did not involve pure questions of

law, but mixed questions of law and fact and should be decided on evidence,

at the trial.

16. The subsequent order of not adding the petitioner as a defendant in

the suit will prevent the Court from adjudicating the issues involved in the

suit, in the correct perspective. Non-addition of the petitioner in the present

suit, will also give rise to multiplicity of proceedings. The finding that the

petitioner was not entitled to be added because she could not show from the

documents that she was the daughter of Kiam Wong Chung, should be

decided at the trial. Further, the finding with regard to non-transferability of

the tenancy upon the petitioner after the death of the partners, also goes to

the merits of the suit and is a triable issue. The locus of the petitioner to

represent the defendant or to contest the eviction suit has already been held

to be decided at the trial and not as a preliminary issue

17. At the stage of addition of party, the Court was only required to see

whether the presence of the petitioner would be necessary and proper, in the

facts stated hereinabove. The consistent case of the petitioner was that the

partnership firm had dissolved, the persons representing the partnership

firm who were impleaded in the suit had died and the petitioner was

running the business as a sole proprietor, upon payment of rent. The rent

was allegedly accepted from the petitioner. Upon perusal of the rent receipt

challan, the learned Court had already held that the defendant was not a

defaulter.

18. Admittedly, all such issues raised by the petitioner and by the plaintiff

are triable issues as already held by the learned court. When the learned

court allowed the petitioner to contest the suit as a defendant and also to

avail of the remedies under the law, for protection against eviction by taking

resort to Sections 7(1) and 7(2) of the said Act, adding the petitioner as a

defendant, was inevitable in the facts of this case..

19. The petitioner was allowed to participate throughout the proceeding.

The defence of the petitioner has not changed. The petitioner always claimed

to be the proprietor who was running the business on the basis of an

agreement. She claimed to have become a partner with her mother and after

demise of her mother, she continued to run the business as a sole

proprietor. Supporting documents in respect of such claim have also been

produced before the Court. The final adjudication of the status of the

petitioner, as a tenant or as a sub-lessee or sub-tenant would be subject to

trial on evidence. The addition of the petitioner as a party, does not change

the complexion of the suit, but is necessary for proper and effective

adjudication of the suit.

20. The order impugned suffers from irregularity and is set aside. The

learned Court below is directed to add the petitioner as a defendant in the

suit and pass necessary orders for amendment of the cause title in the

plaint. The observations made hereinabove are tentative and shall not

prejudice the trial.

21. Under such circumstances, the revisional application is allowed.

22. There will be no order as to costs.

23. Parties are directed to act on the server copy of this judgment.

(Shampa Sarkar, J.)