- (1.) By this application under Article 227 of the Constitution of India the petitioners challenge Order No. 16, dated 30th April, 2013 passed by the Learned 11th Bench, City Civil Court at Calcutta in Title Suit No. 1751 of 2011 in the matter of Oriental Venetian Blinds versus Trust Estate of Amulya Charan Roqitte and Ors.
(2.) The short case of the petitioners is as follows:- a) That the petitioners are the owners of premises during 19A, 19B, 19C and 19D, BB Ganguly Street, Kolkata 700012 (hereinafter referred to for short as the suit premises). Sri Amulya Charan Roqitte was the original owner of the suit premises and by registered Deed of Trust executed on 31st July 1963, the suit premises were settled in favour of the present petitioners. The present petitioners are now acting as trustees. By the Trust Deed dated 31st July, 1963 the suit property stood retained with the present petitioners as beneficiaries. Thereafter by Deed of Release dated 12th January, 2007 the suit premises stood released in favour of the petitioners. b) That the Title Suit No. 1751 of 2011 under reference was instituted by the Opposite Party No. 1 (OP-1)/plaintiff claiming a decree of declaration that the proforma opposite party/defendant No. 1 was bound to issue rent receipts in favour of the plaintiff. A further declaration was prayed for to the effect that the plaintiff is in possession of the suit premises as the lawful tenant under the proforma OP/Defendant No. 1 and is lawfully entitled to use and enjoy the suit premises. Further reliefs were prayed for directing the defendants and their men and agents not to disturb the peaceful possession of the plaintiff over the suit premises along with the relief of permanent injunction, receiver, costs etc. c) It is the case of the present petitioners/defendants that the plaintiff has disclosed several documents including rent receipts which have been issued in the name of Oriental Electric and Engineering Company. The said Oriental Electric and Engineering Company (for short the Company ) was inducted as a tenant in respect of the suit premises and the plaintiff, i.e. Oriental Venetian Blinds claims to be a division of the Company which was taken over by the plaintiff in and around 7th January, 1975 to 11th July, 1975. d) The petitioners/defendants filed an application under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure (CPC) praying for rejection of plaint. According to the petitioners/defendants the plaint is liable to be rejected under Section 69(2) of the Partnership Act, 1932. It is the further case of the petitioners that the plaint is liable to be rejected for non-joinder of necessary parties. e) The petitioners/defendants have also contended that the plaintiff is not a bonafide tenant and there has been no intimation to the petitioners of the purported transfer of tenancy from the name of the Company to that of the plaintiff, which is a partnership firm.
(3.) The learned Trial Court by its order impugned no. 16, dated 30th of April 2013 recorded as follows:- i) That from the averments in the plaint and the materials on record it will appear that the suit premises was the trust property of Amulya Charan Roqitte and that the plaintiffs No. 2 and 3 were the trustees of such property. ii) That the Company was the tenant in respect of the Schedule property under the defendant No. 1. By the Deed of Release of the year 2007 the suit property has lost the status of a trust property. iii) It is an admitted fact that the disputed tenancy stands in the name of the Company. However, the partnership business under the name of M/s Oriental Venetian Blinds is now run from the disputed tenancy. The Partnership Deed of 1974, inter alia, provides that such partnership was between one Madhusudhan Jatla and Jyoti Jatla. Thereafter, the names of the original partners were deleted and the name of one Nawal Kumar Jhunjhunwala and Kamal Kumar Jhunjhunwala has been inserted as the partners of M/s Oriental Venetian Blinds. iv) The learned Trial Court therefore found from the documents on record that the possession of the suit premises has changed from the Company to an unregistered partnership firm. It also found that no documents have been filed by the OP-1/plaintiff in support of the contention that the Company got merged with the plaintiff or that the plaintiff was a division of the Company. Therefore, the learned Trial Court was of the view that the present possession of the plaintiff in the suit premises, whether legal or illegal, can be only decided after taking evidence in the trial. v) With reference to Section 69(2) of the Partnership Act the Ld. Trial Court found the suit by an unregistered firm not to be barred under section 69(2) if a statutory right or a common law right is sought to be enforced. However, no suit by an unregistered firm will lie for enforcement of any right arising out of a contract entered into by an unregistered firm qua third parties.;