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Definition of Partnership, Partner, Firm and Firm Name

Esheta Lunkad ,
  14 September 2020       Share Bookmark

Court :

Brief :
In this judgement, CPC does not apply to HRC orders
Citation :
Petitioner: Shanti Motor Finance Company Respondent: Kusum Sharma Citation: 8495 of 2018 Allahabad HC

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.
 

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Published in Constitutional Law
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