Dina Nath vs Firm Metro Hotel

K.V. Gopalakrishnan Nair, J.—This is a revision against the order of the City Judge at Jammu holding that a suit instituted by the

Respondent against the Petitioner is not hit by the provisions of Section 69 of the Partnership Act.

The Plaintiff and the Defendant constituted a partnership firm doing the business of hoteliers. The hotel was to be run according to the terms of

the partnership in the premises of which the suit property forms part. At the time of the partnership agreement the Petitioner-Defendant was in

actual occupation of the suit premises. Therefore, an express provision was made in the partnership deed to the effect that in case the Defendant

continued to be in occupation of the premises for more than three months from the date of the partnership agreement, he will pay as compensation

for use and occupation a sum of Rs. 150/ - per mensem. It appears that differences arose between the two partners which has resulted in the

present suit. The Plaintiff claimed a decree for ejectment of the Defendant from the premises and for arrears of rent and also for an injunction to

restrain the Defendant from letting out the premises to any other person.

The suit admittedly relates to the premises in which the business of partnership was to be run. It is also directly related to the provisions to the

partnership deed itself which provided for payment of a specified sum of Rs. 150/- a month by the Defendant in case he failed to vacate the

premises within three months from the date of execution of the partnership deed. It does not therefore admit of doubt that the suit is inextricably

bound up with the partnership itself and arises out of the partnership contract. The firm is admittedly unregistered. The only ground on which the

Court below found that the suit does not fall within the mischief of Section 69(1) of the Partnership Act is that the suit is brought by the firm and not

by a partner.

But a firm is not a juristic person; it is only convenient and compendious term to denote the partners who have entered into partnership. A suit by

or against a firm is essentially a suit by or against the partners constituting the firm. A reference to Rules 2 and 6 of Order 30 will serve to clarify

this position. Furthermore, Rule 1 of Order 30 enables only two or more partners to bring a suit in the name of the firm. A suit by just one partner

is not therefore a suit, by the firm contemplated by Order 30. There is no other procedural provision under which a firm can lay a suit. If Order 30

is put aside, the partners will have to bring the action in their individual names.

In the present case the Plaintiff is described as ""Firm Metro hotel ... through Shri Hakumat Rai partner...."" The Defendant is admittedly the only

other partner of the firm. If the suit is viewed as one by the firm against the partner, it will amount to a suit brought by two partners against one of

themselves. This will be too strained and untenable a result to contend for. In effect and reality the present suit is only by one of the two partners of

an unregistered firm against the other partner of that firm. Such a suit is hit by Section 69(1) of the Partnership Act. By merely stating the name of

the firm as suing through one of the partners, the real nature of the suit cannot be concealed.

I am, therefore, of the opinion that the decision of the Court below is wrong and that the suit is not maintainable in view of the provisions of

Section 69(1) of the Partnership Act and has to be dismissed. This surely will not preclude the partner who has brought the present suit from

bringing a fresh suit which is not affected by Section 69 of the Partnership Act. The revision is allowed but without making any order as to costs in

the circumstances of this case.