Calcutta High Court: A single-judge bench comprising of Siddhartha Roy Chowdhury,* J., held that a suit against a trade name or a partnership firm should follow the procedural requirements and that necessary parties should be joined. The Court set aside impugned order due to the lack of evidence for subletting and the non-maintainability of the suit.
Factual Matrix
In the instant matter, a deed of settlement executed in 1993 settled premises numbered 37, 38, and 39 of Ezra Street, Kolkata upon a trust. Baijnath Choubey was inducted as a tenant in the same premises. Baijnath Choubey died and left a Will in 1925, creating a trust to carry on his business for the benefit of his heirs. The trustees took over the business.
In 1984, it was discovered that Baijnath Choubey’s family was extinct, rendering the trust void. The respondent-plaintiffs learned that the trustees wrongfully formed a partnership with two others and carried on the business as Baijnath Choubey and Company.
The respondent filed a suit for declaration of title and injunction against the partnership without terminating the tenancy. The respondent claimed the tenant, appellant-Baijnath Choubey & Co. (defendants), illegally sublet the premises to the partners of the firm. The appellant contested, stating the partnership transformed the business, and the alleged subletting did not happen.
The trial court dismissed the suit, but the First Appellate Court reversed it, granting eviction. Aggrieved by the First Appellate Court’s order for eviction, the appellant preferred an appeal challenging the same on the grounds that the suit was not maintainable due to non-joinder of necessary parties.
Moot Point
Whether the suit was maintainable for eviction of the appellants without impleading necessary parties?
Parties’ Contentions
The appellants contended that the suit was not maintainable due to non-joinder of necessary parties. It was contended that the suit was filed against the trade name “Baijnath Choubey and Company” which cannot be considered a juristic person. It was also argued that the trustees of the original tenant should have been impleaded.
The respondent contended that the issue of maintainability had already been decided by the trial court and the first appellate court and it can’t be reopened due to the principle of res judicata. It was contended that suit against the partnership firm was maintainable without individually naming partners as per Order 30 Rule 10 of the Civil Procedure Code, 1908
Court’s Verdict
The Court agreed with the appellant that the judgment was based on no evidence concerning subletting. The Court observed that the impugned decree granted by the First Appellate Court was on the ground of subletting. The Court held that “in absence of any evidence to constitute the ingredients of subletting the decree cannot be maintained.”
The Court determined that the impugned order was not protected under res judicata as it was an appealable order and not a final determination of the maintainability issue.
The Court held that the suit was not maintainable due to the non-joinder of necessary parties. The Court emphasized that a trade name and a partnership firm are not juristic persons, and a suit cannot be maintained against them without impleading the appropriate parties.
“It leaves no manner of doubt that a trade name can never be considered, to be a juristic person so is a partnership firm. Therefore the plaintiff cannot maintain the suit without impleading the trustees of the trust created by the original tenant, Baijnath Choubey, in the breach of Order XXXI Rule 1 of the Code of Civil Procedure.”
The Court observed that the suit should have been filed following the procedures laid down in the Civil Procedure Code, 1908 regarding suits against firms and trade names. Since the suit was not filed correctly and necessary parties were not joined, the Court concluded that the suit should be dismissed.
The Court set aside the impugned order passed by the first appellate court due to the lack of evidence for subletting and the non-maintainability of the suit and allowed the appeal.
[Baijnath Choubey & Co. v. Vinay Chandra Devidas, S.A. 100 of 2021, order dated 24-08-2023]
*Judgment by Justice Siddhartha Roy Chowdhury
Advocates who appeared in this case :
Mr. Probal Kumar Mukherjee, Sr. Adv., Mr. Murali Mohan Ray, Mr. Souma Subhra Ray, Counsel for the Appellants;
Mr. Saptangsu Basu, Sr. Adv, Counsel for the Respondent.
