PARESH CHANDRA CHATTERJEE Vs. PROBODH CHANDRA MAJUMDAR

JUDGEMENT

(1.) This appeal at the instance of the plaintiff arises out of a suit for eviction of a monthly tenant on the ground of default in payment of rent after terminating his tenancy with the expiry of the month of May, 1971 by the service of a combined notice under section 106 of the Transfer of Property Act read with section 13(6) of the West Bengal Premises Tenancy Act. Originally the suit was instituted by the plaintiff Paresh Chandra Chatterjee. Subsequently, by an amendment of the cause title of the plaint it was added Paresh Chandra Chatterjee carrying on business as sole proprietor under the name and style, P.C. Chatterjee and Company. The tenant defendant put in a written statement denying the material averments made in the plaint and also challenging the legality and validity of the notice to quit. It appears that for non-compliance of the provisions of section 17(1) and 17(2) of the West Bengal Premises Tenancy Act, his defence as against delivery of possession was struck out under section 17(3), of the said Act. Thereafter both parties went to trial on the question of legality and the validity of the notice to quit only. The service of the notice on the defendant was not denied. Now both the courts have found that the notice, which was served on the defendant, was not legal and valid inasmuch as it was served by an Advocate on behalf of one Paresh Chandra Chatterjee who is not the one and the same person as described in the cause title in the plaint, namely Paresh Chandra Chatterjee carrying on business as sole proprietor under the name and style of P.C. Chatterjee & Company. Accordingly, the suit was dismissed by both the courts below.

(2.) In my view, the approach of both the courts below was bad in law and such an approach has vitiated their findings. Under Order 30 Rule 1 of the Code of Civil Procedure, 1908 which governs the present suit any two or more persons claiming or being liable as Partners and carrying on business in India may sue or be sued in the name of firm of which such persons were Partners at the time of the accruing of the cause of action. But under Order 30 Rule 10 any person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a firm name, and so far as the nature of the case will permit all Rules under Order 30 shall apply. We thus find a distinction between Order 30 Rule 1 and Order 30 Rule 10 of the Code of Civil Procedure. Thus a person carrying on business in a name or style other then his own name, may be sued in such name or style as if it were a firm but such a person cannot sue another in the name or style of such firm. In fact a person carrying on trade or business under the name and style of his own name cannot be said to have constituted a firm. In case of Bhaggan Manaji & Ors Vs. Hiraji Premaji Marwadi, reported in AIR 1932 Bombay 516 a Bench of the Bombay High Court held that one man cannot constitute a firm, and a person treating himself as a firm or in an assumed or trading name may be sued in his trading name under Order 30 Rule 10 but he cannot sue in that name. Similar distinction between Order 30 Rule 1 and Order 30 Rule 10 was also noticed by a Bench of this Court in the case of Jamunadhar Poddar Firm Vs. Jamunaram Bhakat & Ors. reported in AIR 1944 Calcutta 138 I respectfully agree with the principle as laid down in the said two decisions and of the view that both the courts fell into error in construing that the notice which was served by an Advocate on behalf of Paresh Chandra Chatterjee was a different person from Paresh Chandra Chatterjee carrying on business as Sole Proprietor under the name and style P.C. Chatterjee & Co. which is his sole proprietary concern and similarly he also could not have served a notice under the name and style of P.C. Chatterjee & Co. even though the tenant might have been inducted by him on behalf of P.C. Chatterjee & Co. I, therefore, find that the notice which was admittedly served on the defendant was legal, valid and sufficient and accordingly the-defendant who was a habitual defaulter of rent since 1968 as alleged by the plaintiff, was not entitled to any protection from eviction.

(3.) In the result, the judgment and decree of the learned lower appellate court is hereby set aside and the appeal is allowed. The defendant respondent do render vacant possession of the suit premises to the plaintiff within three months from this date failing which the plaintiff would be entitled to recover possession thereof by evicting the defendant in execution of the decree. The plaintiff do get costs throughout.