- (1.) PRAKASH Krishna, J. This is tenant's revision under Section 25 of the Provincial Small Causes Court Act. It arises out of an application filed under Order XXIII, Rule 1 (3) (b) of C. P. C. by the plaintiff opposite party who is arrayed as opposite party No. 1 in the revision. The said application, by the order under revision, has been allowed by the Court below on the condition on payment of Rs. 2500/- as costs with liberty to file fresh suit.
(2.) M/s. Jagat Estate, a partnership, instituted suit No. 80 of 2001 claiming itself to be landlord of the disputed property for ejectment of M/s. Bhartiya Antar Rashtriya Byopari Limited and M/s. Kishore Bandhu Private Limited (Applicants No. 1 and 2) on the ground that the plaintiff opposite party is a registered partnership firm. The defendant applicants have failed to pay the rent and are defaulters within meaning of Section 20 of U. P. Act No. 13 of 1972, thus, they are liable for eviction. Plea of subletting of major portion of the house in dispute to defendants No. 2,3 and 4 was also raised in the plaint. In written statement it has been asserted that the defendants have already deposited the rent in proceedings under Section 30 (1) of U. P. Act No. 13 of 1972, the allegations of sub-tenancy was also denied. It has been stated that in any case the tenants having deposited a sum of Rs. 45,000/- in the present suit under Section 20 (4) of the aforesaid Act, the suit for eviction is liable to be dismissed. In the suit two applications one for amendment of the plaint and another for permission to withdraw the suit with permission to file fresh suit were filed by the plaintiff opposite party. In the application for withdrawal of the suit it has been stated that as the defendants have taken a plea that the plaintiff Firm was not registered on the date of institution of the suit, although it has been registered during the pendency of the suit, the plaintiff Firm has been advised to withdraw the suit with permission to file a fresh suit to avoid long drawn litigation on the aforesaid issue. The said application, as stated above, has been allowed by the order under revision. 3-A. Heard Shri Ravi Kant, Senior Advocate alongwith Sri V. N. Kapoor, Advocate, for the applicants and Sri Pankaj Bhatia, the learned Counsel for the plaintiff opposite party No. 1. It has been contended in support of the revision by the Senior Counsel that it is settled law that such a suit is not maintainable on behalf of an unregistered Firm and is barred in view of Section 69 of the Partnership Act; no permission could be granted by the trial Court under Order XXIII, Rule 1 (3) C. P. C. as the plaint itself is a nullity and the said defect in the plaint cannot be termed as 'formal defect' within the meaning of the aforesaid Order XXIII, Rule 1 (3) C. P. C. Elaborating the argument, it was contended that a valuable right has been accrued in favour of the defendant applicants. In contra, the learned Counsel for the plaintiff opposite party submitted that no right has been accrued to the defendants in the suit and the Court below has properly exercised its discretion while granting the permission and that there is no jurisdictional error in the order under revision. It was submitted that the deposit made under Section 20 (4) of the Act does not confer any right on the defendant applicants and the defendant applicants would not suffer any loss or injury if the present suit is permitted to be withdrawn. It was further stated that a fresh suit being SCC suit No. 39 of 2004 as per permission granted by the Court below has already been instituted by the plaintiff opposite party. In any view of the matter, it was submitted, that the plaintiff Firm which was initially an unregistered Firm has got registration during the pendency of the suit under the Partnership Act, the defects, if any, has now been removed. Sri Ashok Gupta in para 12 of his affidavit filed in support of the stay application has stated that after deposit of the amount by the defendant applicants, the plaintiff opposite party became dishonest as he wanted to misappropriate amount deposited by the defendant applicants. In reply, it has been deposed in para 13 of the counter-affidavit that the plaintiff opposite party has not withdrawn the amount deposited by the present applicant. Thus, the present applicants, it was submitted by the landlord opposite party, have obtained the interim order from this Court by misrepresenting the fact regarding the withdrawal of the amount deposited by the defendant applicants, the revision is liable to be dismissed on this ground alone.
(3.) DURING the course of the argument it was admitted by the Counsel for the parties that neither the plaintiff opposite party has withdrawn any amount deposited under Section 20 (4) of the Act nor the defendant applicants have withdrawn the cost awarded by the order under revision. The point, thus, mooted in the revision for consideration of this Court is whether in the facts and circumstances of the case the order granting permission to withdraw the present suit with liberty to file fresh suit on the same cause of action is legally justified in view of Section 69 of the Partnership Act read with Order XXIII, Rule 1 (3) C. P. C. It is apt to consider the decisions relied upon by the learned Counsel for the applicants. It may be placed on record that the learned Counsel for the opposite party felt satisfied by referring the order under revision and the withdrawal application and the objections thereof, and could not cite any precedent in support of the case.;