Bench:
Surya Prakash Kesarwani
Issue:
Whether a rent case filed without separately impleading partner of the tenant firm is liable to be dismissed for non joinder of necessary party?
Facts:
- The disputed shop is owned by the respondent landlady, which was originally of her late husband, who had admitted the petitioner as a tenant in 1986.
- The landlady filed a case under Section 21(1)(a) of Transfer of Property Act for her need of the shop, and her appeal was allowed.
- The tenant motor company aggrieved by this, filed a P.A. appeal, but it was dismissed.
Appellant’s contentions:
- The release application was filed by the plaintiff-landlady without impleading partners of the firm. Therefore, the release application was liable to be dismissed on the ground of non-joinder of necessary parties.
- Provisions of the order are not applicable under Section 38 of the U.P. Urban Buildings Act, 1972 (Rent Act) and & as per the judgements in M/s. Chhotelal Pyarelal Vs. Shikharchand and PrabhakarMehrotra and another Vs. District Judge
- Dismissal of appeal by the appellate court was without application of mind
Respondent’s contentions:
- Under Section 4 of the Indian Partnership Act, 1932,partnership means relation between persons who have agreed to share the profit of the business carried on by any one or all of them.
- Rule 10(6)(a) of the Rent Rules recognises allotment of an accommodation to a firm, hence sec 38 of the same can be set aside.
Final judgement:
- In this judgement, CPC does not apply to HRC orders
- Evictionapplication cannot be maintainedin the name of the firm against them.
- It is a case of wrong descriptionby the respondent which can be corrected, thus amendment is permitted in the array of parties.
- Landlady has setup her own need of the shop, but the appellate court dismissed the appeal stating that she has need of the shop for her son.
- Thereby, the writ petition is allowed.
