M/S Bhavarilal Tilokchand vs Bannatwala Jain & Co.

1 : This appeal has been filed challenging the judgment and decree dated 15.07.2014, passed by the Addl. District Judge, Burhanpur, in Civil Appeal

No.3-A/2002, thereby affirming the judgment and decree dated 23.07.2002, passed by I Civil Judge, Class-II, Burhanpur, in Civil Suit No.52-A/1995.

2 : The respondent/plaintiff is the owner of the suit accommodation, having an area of 4430 sq.ft. The appellant/ defendant was tenant in the said

premises. Before it was sold by two sale deeds dated 17.8.1976 from successor-in-interest of Mathuradas and Goverdhandas, the agreed rent payable

was Rs.196.75 paise. The suit accommodation was let out to the appellant/defendant by Dwarkadas for commercial purpose. In the said two sale

deeds, the purchaser of the above mentioned accommodation was shown as ""Ambika Dying and Sizing Mills, Ke Sanchalak Bannatwala Jain &

Company Ke Taraf Se Bhagidar Shri Krishanadas Vald Gopaldas Bannatwala Niwasi Tappura, Burhanpur."" After completion of the said transaction,

the notices were served on the appellant/defendant communicating to it the factum of purchase of the suit premises as also containing demand for

payment of rent to the purchaser. In spite of such notice, the appellant/defendant did not attorn in favour of respondent/plaintiff. The demand and

claim in that notice was denied by the original owner again through the Advocate. Thereafter, on 25.1.2017, a suit was filed against the

appellant/defendant for its eviction from the suit accommodation, on the ground under Section 12(i)(a), (b), (c), (m) & (k) of the M.P. Accommodation

Control Act (hereinafter referred to as the 'Act' for brevity). However, extensive amendment was made in the plaint after one year of the expiry of

the purchase by the respondent/plaintiff, claiming eviction also under Section 12(1)(f) of the Act, on the ground that the accommodation in the suit is

required by bonafide need for shiftingthe plaintiff's Mill to the suit accommodation.

3 : The trial Court after framing issues and recording the evidence of both the parties decreed the said suit vide judgment and decree dated 23.0.2002.

Against the said judgment and decree, the appellant/defendant has preferred an appeal before the Addl. District Judge, Burhanpur. The first Appellate

Court vide impugned judgment and decree dated 15.7.2004, has affirmed the judgment and decree passed by the trial Court. Being aggrieved by that

judgment and decree, the appellant/ defendant has preferred this Second Appeal before this Court, which was admitted for hearing on 27.04.2005, on

following substantial questions of law :-

(i) Whether the suit filed by the respondent/ plaintiff claiming to be a partnership firm, namely, Bannatwala Jain and Company being not a registered

firm, can be said to be a suit validly instituted and not hit by Section 69 (2) of the Partnership Act?

(ii) Whether the Courts below have erred in not accepting the appellant's plea that the suit was hit by Section 69(2) of the Partnership Act inasmuch

as the suit was filed by a partnership firm Bannatwala Jain and Company which was not a registered firm?

(iii) Whether in the garb of rectification of a mistake the firm initially registered can be replaced by altogether different firm bearing different

description?

(iv) Whether a suit for eviction of a tenant on the ground 12(1)(e) and (f) of M.P. Accommodation Control Act, 1961 filed within one year of the

purchase of the tenanted accommodation by the purchaser landlord is maintainable even if such a ground is introduced by amendment in the plaint in

the pending suit after lapse of one year of the purchase of the property?

4 : As the substantial questions of law Nos. 1 to 3 are inter-related, therefore, they are being decided together.

5 : In the present case, the respondent/plaintiff is a partnership firm known as 'Ambica Dying & Sizing Mills, Sanawara, Burhanpur, Tahsil and District

Burhanpur. The suit was filed for eviction of the appellant/defendant from the suit accommodation, on the ground covered under Section 12(1)(a), (b),

(c), (m) & (k) of the M.P. Accommodation Control Act. Intiailly, in the plaint, the respondent/plaintiff was described as Bannatwala Jain and

Company, a firm carring on Sizing Mills, Sanawara, Burhanpur, Tahsil & District Burhanpur (M.P.). The appellant/defendant, therefore, took a

specific objection in view of Section 69(2) of the Partnership Act as suit is not maintainable by the respondent/plaintiff-firm Bannatwala Jain & Co. as

the same is not registered on the date of filing of the suit.

6 : The respondent/plaintiff filed an application before the Registrar Firms and Societies in the existing entry at Serial No.2403/76-77, the words

'Proprietor Bannatwala Jain & Co. be added after the words 'Ambica Dying & Sizing Mills, Sanawara, Burhanpur, Tahsil and District Burhanpur, at

Item No.2. The prayer of the respondent/plaintiff was accepted and the firm was registered as a Partnership Firm (1) M/s Ambika Dying and Sizing

Mills, Burhanpur & (2) Proprietor Bannatwala Jain & Co. This entry was made on 20.7.1977 i.e. after filing of the suit. Such entry is shown to be

'Parivartan' meaning alteration. The appellant/ defendant has also stated that number of interpolations have been made in the register of Firms.

7 : Learned counsel for the appellant/defendant submits that alternations have been made presumably at the instance of the respondent/plaintiff to

shield its initial default. Section 69 of the Partnership Act provides for the effect of non-registration which reads as under :-

Effect of non-registration.-(1) No suit to enforce a right, arising from a contract or conferred by this Act, shall be instituted in any Court by or on

behalf of any person suing as a pertner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is

registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.

(2) No suit to enforce a right, arising from a contract, shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is

registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.

As per the said Section, a suit is not be maintainable unless it is filed by a firm which is registered and thus, as per this Section only a registered firm

can file a suit. In the present case, earlier the suit was filed by Bannatwala Jain & Co. In the application filed by the respondent/plaintiff before the

Registrar, the name of Ambik Dying & Sizing Mills, Sanwara, Burhanpur, has been mentioned, but due to oversight, the Registrar does not issue the

certificate in the name of Ambik Dying & Sizing Mills, Sanwara, Burhanpur, and therefore, the same should have been treated to be a 'Parivartan'

meaning alteration.

8 : The first appellate Court in para 28 of the judgment has dealt with the issue, whether the alteration made in the register on the basis of an

application submitted by the respondent/plaintiff on 20.7.1977, would be applicable from the date of the correction/ amendment or from the

retrospective effect i.e. when the respondent-firm was registered. Section 62 of the Partnership Act, deals with the noting of changes in names and

addresses of partners. As per this Section, when any partner in a registered firm alters his name or permanent address, an intimation of the alteration

may be sent by any partner or agent of the firm to the Registrar, who shall deal with it in the manner provided in Section 61. Section 64 of the

Partnership Act provides for rectification of mistakes. As per this Section, the Registrar shall have power at all times to rectify any mistake in order to

bring the entry in the register of Firms relating to any firm into conformity with the documents relating to that firm filed under this Act. Section 65 of

the Partnership Act, provides for amendment of Register by order of Court. As per this Section, a Court, deciding any matter, relating to a registered

firm, may direct that the Registrar shall make any amendment, in the entry in the Register of Firms, relating to such firm, which is consequentntial

upon its decision; and the Registrar shall amend the entry accordingly. Thus, Section 62 deals with the alteration, Section 64 deals with the rectification

and Section 65 deals with the amendment.

9 : In the present case, Section 64 of the Partnership Act would be applicable, because in the partnership deed, which was registered on 17.8.1976, the

name of M/s Ambika Dying and Sizing Mills, Burhanpur, Proprietor M/s Bannatwala Jain & Co. has not been shown as the name of the respondent-

firm was not properly registered, therefore, the respondent/plaintiff filed an application under Section 64 of the Partnership Act and on the basis of the

application submitted by the respondent/plaintiff, correction has been made in the partnership deed. Therefore, the said correction made in the

partnership deed cannot be said to be alteration or amendment, but it falls within the rectification of mistake, because in the application submitted

before the Registrar in the name of M/s Ambika Dying & Sizing Mills, Burhanpur was also mentioned, but the Registrar due to over sight issued the

certificate in the name of M/s Bannatwala Jain and Company only.

10 : Now, the question arises from which date this correction in the partnership deed would be applicable. In the present case, the respondent-Firm

was registered on 22.1.2017. At that time, there were three partners of the said Firm, namely, M/s Ambika Dying and Sizing Mills, Burhanpur and the

suit was filed by M/s Bannatwala Jain & Co. During the pendency of the said Civil Suit, the respondent/plaintiff came to know about the said mistake

committed by the Registrar of Firms. They, therefore, immediately filed an application for correction of the said entry, which was allowed by the

Registrar and a certificate to this effect was issued as 'Ambika Dying and Sizing Mills, Burhanpur, through Proprietor Bannatwala Jain & Co.' As per

the judgment passed by the Apex Court reported in the case of M/s Haldiram Bhujiawala and another Vs. M/s Anand Kumar Deepak Kumar and

another (AIR 2000 SC 1287), the Apex Court has held that a suit by unregistered firm is not barred by Section 69(2), if statutory right or a common

law rights is being enforced. Similarly, the Himachal High Court in the case of Girdhari Lal Vs. Spedding Dinga Singh & Co. (AIR 1954 HP 52), in

para 12 has held as under :-

With regard to the first contention it was argued by the learned counsel for the appellant that the plaintiff firm was Messrs. Spedding Dinga Singh &

Co. Chamba but Chamba was not shown as one of the places of business of the firm in the entry, and therefore the firm registered was not the

plaintiff firm. Bawa Sundar Singh has however explained in his statement that Chamba was not one of the places of business of the firm but only one

of the forests in respect of which a lease was taken by the partnership.

Even if it were supposed, though there is really no justification for the supposition in view of the aforesaid unrebutted statement of Bawa Sundar

Singh, that Chamba was also one of the places of business of the firm, mere omission of name of one of the places of business of the firm amounted

at the worst to a mistake which was capable of rectification under S. 64 of the Act but which did not take away from the fact that the firm itself was

registered. It must be stated here in passing that consistently with the argument put forward by the learned counsel for the appellant, namely, that

Chamba is not mentioned in the entry as one of the places of business, it is not open to him to contend that Chamba is part of the firm name, for none

of the places of business recorded in the entry is incorporated in the firm name Messrs. Spedding Dinga Singh & Co.

11 : Learned counsel for the appellant has relied on the judgment passed by the Apex Court in the case of M/s Shreeram Finance Corporation Vs.

Yasin Khan and others (AIR 1989 SC 1769). In para 6 of the said judgment, the Apex Court has held as under :-

In the present case the suit filed by the appellants is clearly hit by the provisions of sub-sec. (2) of S. 69 of the said Partnership Act, as on the date

when the suit was filed, two of the partners shown as partners as per the relevant entries in the Register of Firms were not, in fact, partners, one new

partner had come in and two minors had been admitted to the benefit of the partnership firm regarding which no notice was given to the Registrar of

Firms. Thus, the persons suing, namely, the current partners as on the date of the suit were not shown as partners in the Register of Firms. The result

is that the suit was not maintainable in view of the provisions of sub-sec.(2) of S. 69 of the said Partnership Act and the view taken by the Trial Court

and confirmed by the High Court in this connection is correct. Although the plaint was amended on a later date that cannot save the suit. Reference

has been made to some decisions in the judgment of the Trial Court; however, we do not find it necessary to refer to any of them as the position in

law, in our opinion, is clear on a plain reading of sub-sec.(2) of S. 69 of the said Partnership Act.

The aforesaid judgment was considered by the Apex Court in subsequent judgment in the case of Raptakos Brett & Co. Ltd. Vs. Ganesh Property

(AIR 1998 SC 3085). While dealing with this judgment, the Apex Court in para 30 has held as under :-

30. We, prima facie, find substance in what is contended by Dr. Singhvi for the respondent. It is obvious that even if the suit is filed by an

unregistered partnership firm, against a third party and is treated to be incompetent as per Section 69, sub- section (2) of the Partnership Act, if

pending the suit before a decree is obtained the plaintiff puts its house in order and gets itself registered the defect in the earlier filing which even

though may result in treating the original suit as still born, would no longer survive if the suit is treated to be deemed to be instituted on the date on

which registration is obtained. If such an approach is adopted, no real harm would be caused to either side. As rightly submitted by Dr. Singhvi that,

Order 7 Rule 13 of the CPC would permit the filing of a fresh suit is permitted to be continued it would continue in the old number and the parties to

the litigation would be able to get their claim adjudicated on merits earlier while on the other hand if such subsequent regitration is not held to be of any

avail, all that would happen is that a fresh suit can be filed immediately after such registration and then it will bear a new number of a subsequent

year. That would further delay the adjudicatory process of the Court as such a new suit would take years before it gets ready for trial and theparties

will be further deprived of an opportunity to get their disputes adjudicated on merits at the earliest and the arrears of cases pending in the Court would

go on mounting. It is axiomate to say that as a result of protracted litigation spread over tiers and tiers of Court proceedings in hierarchy, the ultimate

result before the highest Court would leave both the parties completely frustrated and financially drained off. To borrow the analogy in an English

poem with caption ""death the leveller"", with appropriate modifications, the situation emerging in such cases can be visualised as under : ""upon final

Court's purple alter see how victor victim bleed."" All these considerations in an appropriate case may require a re-look at the decision of the two-

member Bench of this Court in 1989(3) SCC 476 : (AIR 1989 SC 1769) (supra). However, as we have noted earlier, on the facts of the present case,

it is not necessary for us to express any final opinion on this question or to direct reference to a larger Bench for reconsidering the aforesaid decision.

With these observations we bring down the curtains on this controversy, Point No.2, therfore, is answered by observing that it is not necessary on the

facts of the present case in the light of our decision on the firt point to decide this point one way or the other. Point N.2, is, therefore, left undecided as

not surviving for consideration.

12 : Thus, the judgment in the case of M/s Shreeram Finance Corporation (supra), has been implidely overruled in the case of Raptakos Brett & Co.

Ltd. (supra). In the present case also, the respondent/plaintiff-Company was not registered Firm at the time of filing of the suit, yet it is clear from the

record that an application has been filed by the plaintiff- Company for registration before the Registrar along with Ambika Dying & Sizing Mills,

mentioned in the said application. However, the Registrar due to oversight did not register the name of Banatwala Jain & Company i.e. Plaintiff along

with Ambika Dying & Sizing Mills. After filing of the suit, as soon as the respondent/ plaintiff came to know about the mistake, submitted an

application for adding the name of Bannatwala Jain & Company. Thus, the above correction can be said to be an alteration. Therefore, it cannot be

said that the respondent/plaintiff was not a registered Firm at the time of filing of the suit. Thus, question Nos. 1 to 3 are answered against the

appellant/defendant.

13 : So far as question No.4 is concerned, in the present case, the respondent/plaintiff has purchased the suit property by two sale deeds on 17.8.1976

and, thereafter, the suit was filed for eviction on 25.1.1977. On the basis of the said, the learned counsel for the appellant submits that the said suit is

not maintainable in view of Section 12(4) of M.P. Accommodation Control Act, 1961, because it bars the filing of the Civil Suit within one year from

the date of acquisition of accommodation by any transfer. Sub-section (4) of Section 12 of the M.P. Accommodation Control Act, reads as under :-

Provisions of the Chapter not to apply to certain accommodations for specified period â€" Nothing in this Chapter shall apply to any

accommodation or part thereof, construction of which, was completed before or after the commendement of this Act, for a period of five years from

the date on which completion of such construction was notified to the local authority concerned.

14 : Thus, this Section came into force by M.P. Act No.7/85, while the present suit has been filed in the year 1977. Therefore, the said provision

would not be applicable in the present case. Thus, this question is also answered against the appellant/ defendant.

15 : In view of the aforesaid, the findings recorded by both the Courts below are concurrent findings of fact, which do not call for any interference by

this Court.

16 : Accordingly, the appeal stands dismissed. However, no order as to costs.