in the opinion of the High Court, the registered partnership firm companyld number be validly inducted as a sub tenant and as alleged on 1.7.1953 the Restaurant was a proprietary companycern of Eng Chick Wong.
The decisions in two companynter suits filed against each other by the original landlord and the firm have thus attained finality and settle the legal position between the companytesting parties that their remedies lay before the executing companyrt.
On the basis of judgment of the Calcutta High Court in the suit the landlord moved an application on 19.6.1993 for execution of the companypromise decree against the then occupiers of the Waldorf Restaurant.
In December 1991 Eng Chick Wong ceased to be a partner and the partnership companysisted of only three other partners in the present partnership firm.
Ltd. and Waldorf Restaurant respondent No.1 herein .
That appllcation was dismissed by the Court on 4.8.1999.
Learned Single Judge of Calcutta High Court, sitting on Original Side, by judgment dated 25.8.1992 in Suit No.1546 of 1956, filed for eviction, held that subject matter of the suit is determinable by the executing companyrt in execution of the companypromise decree and the suit was barred by provisions of Section 47 of the Code of Civil Procedure.
Mr. Animesh Ghosal, an advocate of this companyrt is appointed receiver to companyply with the above directions.
The appellants who would hereinafter be referred to as the landlord have acquired from the original owner title to ground floor of building No.2, area 2537 Sq.
On the side of the landlord the application for execution filed by it was allowed by the learned Single Judge of Calcutta High Court on 20.4.2000.
Between the period 1.1.1939 to 31.12.1951 Allenberry Company respondent No.3 herein was the companytractual tenant of the original landlord.
The suit instituted by landlord against the firm came to be decided after thirty six years of its institution.
Ft in Park Street, Calcutta.
In order to scuttle attempt of the landlord to execute the decree the occupiers of the restaurant trading in the firm name filed a companynter suit on 3.8.1993 against the landlord seeking grant of injunction restraining the landlord from executing the agreement against the firm.
The said suit was decreed on 27.4.1955 in terms of a companypromise reached between the landlord and tenant under which the tenant vacated the suit premises and reserved liberty to the landlord to take necessary legal steps for vacating sub tenants who had been inducted by the tenant.
After examining the entire facts and events of the long companyrse fo litigation the Division bench came to the companyclusion that by operation of law Eng Chick Wong either as proprietorship companycern or as a partner of partnership firm became a tenant directly under Chitpur Golabari.
The severe allegation that Waldorf, which was before this companyrt, had been registered as a partnership firm on September 16, 1954, which would be subsequent to the termination of the tenancy, remained uncontroverted.
For those reasons there shall be an order in terms of prayers a , b , c , d , e and f of the Tabular Statement.
The firm in order to frustrate the companypromise decree against it made a different attempt by filing an application on 15.3.1999 in the trial companyrt for setting aside the companypromise decree of eviction in Civil Case No.1645 of 1954.
The firm companytested the suit by taking a plea that before surrender of tenancy by the tenant with effect from 31.8.1953 under statutory numberice, the tenant had inducted on 1.7.1953 sole proprietor En Chick Wong for running Waldorf Restaurant.
Aggrieved by the judgment of the learned Single judge the firm preferred an appeal to Division bench.
Short of unnecessary details of companynter litigation between the parties, facts relevant for decision of the legal question before us are as under The suit premises presently in use for running Waldorf Restaurant originally belong to Chitpur Golabari Company Limited respondent No.2 herein .
Sometime in the year 1958, the two above named partners retired and Eng Chick Wong companytinued as partner with a new partner Philip Wing Hui Wu.
The suit premises, presently a well known restaurant in the trade name of Waldorf Restaurant is being run by registered partnership firm of that name hereinafter shortly referred as the firm .
The above plea and companytention of sub tenant HHPL was negatived by this Court by holding thus Pages 31 32 to be quoted red marked Coming back to the facts of this case against the respondent firm after obtaining a decree of companypromise against the tenant the landlord instituted suit for eviction on 9.6.1956.
After obtaining the companypromise decree of eviction against the tenant, the landlord instituted three separate suits for eviction against the above named three sub tenants.
Waldorf, I would unhesitatingly hold, was a sub tenant under Allenberry Co. and made upon the termination of the tenancy and making of the companypromise decree dated April 27, 1955 in accordance with the Terms of Settlement, the decree was indeed executable by the plaintiff against Waldorf.
The firm formally by its reply refused to supply companyies of partnership agreement and relevant information.
The three sub tenants in the tenanted building were Chowranghee Sales Bureau Pvt.
The tenant Allenberry C o. respondent No.3 in terms of the companypromise decree has vacated the suit premises but the firm respondent No.1 has been successful in resisting the execution of the decree against it for more than 45 years.
On 12.8.1953 Allenberry Co. hereinafter shortly referred to as the tenant gave a formal numberice to the landlord expressing its intention to surrender the tenancy and vacate the leased premises by 31.8.1953.
In its order dated September 25, 1997, the appellate companyrt in my view, had clearly adjudicated the question of direct tenancy against Waldorf and the principles of res judicata would, I am afraid prevent this question to be further urged in a Court of Law for further companysideration.
The receiver shall file a report of companypliance with companyies to the parties within a period of four weeks from the date of receipt of the xerox of the signed companyy of this order.
The main question involved is whether the respondent firm can claim status of sub tenant and protection against eviction in execution of the companypromise decree against the tenant under the provision of the West Bengal Premises Rent Control temporary provisions Act 1950 hereinafter shortly referred to as the Act of 1950 .
Ltd., Happy Homes Pvt.
The plaintiff had been prosecuting more than one litigation in this Court and since there was numbermala fide, on record, in the plaintiff so doing, I would companyclude that the plaintiff had been prosecuting the legal proceedings diligently, and in good faith.
For better appreciation of the ratio of the decision of the learned Single Judge the relevant part of the judgment deserves to be reproduced In those circumstances I would find, that there was numberproof whatsoever, before this Court, that Waldorf the present partnership firm had been inducted as a sub tenant on 1.7.1953.
J U D G M E N T Arising out of SLP Civil Nos.
Wong Lee Si Moi Wulishih.
Against judgment of the High Court, the firm filed a Special Leave Petition to this Court which was withdrawn on 12.10.1988.
Despite the surrender of tenancy by the tenant by a formal numberice, vacant possession fo the suit premises was number handed over to the landlord.
In the year 1963, again the two above named partners were joined by three new partners the mention of whose names is number relevant.
The report shall be kept in the records of this matter.
It would also appear to me, and number companytended on behalf of Waldorf either, that the list of subtenants which had been furnished by Allenberry Co. to the plaintiff, if disclosed, would show that it had been inducted before the tenancy of Allenberry Co. had been terminated.
Before pressing history of the litigation leading to the passing of the companypromise decree and various attempts made by the firm to resist execution of the decree, the principal question involved in these appeals may be stated at outset.
The appeal preferred by the firm to the High Court was also dismissed.
The companynter suit filed by the firm was dismissed on 21.12.1995 by allowing the landlords application under Order 7 Rule XI of the Code of Civil Procedure and on the same ground that the suit is barred by Section 47 of the Code of Civil Procedure.
There are only three new partners Hsi Wen Wong, Mata Prasad Pandey and Charles Mantosh.
Separate decrees for eviction were obtained against the two sub tenants viz.
It is number necessary to go into the various changes in the companystitution of the firm by name Waldorf Restaurant.
Learned Single judge of the High Court came to the companyclusion that the firm came into existence of its registration under Partnership Act only on 1.3.1954 i.e. after the surrender of tenancy by the original tenant on 31.8.1953.
The previous owner of the premises in suit obtained a companypromise decree of eviction on 27.4.1955 against Allenberry Company limited respondent No.3 who was the tenant in the suit premises.
The plaintiff was, therefore, entitled to rely on the provisions companytained in Section 13 2 of the Limitation Act, and this execution application I am inclined to hold was number barred by the laws of limitation.
The High Court also came to the companyclusion that if the firm is claiming status of direct tenant under the landlord by taking recourse to the provisions of Section 13 of the Act of 1950, its remedy lay in raising appropriate execution of the decree in the executing companyrt a suit for the purpose was held as number maintainable.
18045 18046 Of 2000 Dharmadhikari J. The facts and events in more than 45 years period spent in this litigation amply demonstrate how clever parties on engineers legal advice succeed in delay delivery of justice by adopting all companyceivable tactics and thus bring disrepute to the legal and judicial process.
Ltd. was also one of the sub tenants inducted by original tenant Allenberry Co. after service of numberice by it to surrender the tenant.
The sub tenant sought protection against eviction in execution of the companypromise decree against the tenant on the ground that it has become direct tenant under the landlord in accordance with Section 13 of the Act of 1950.
The above partnership firm companyprising of three partners was registered on 1.3.1954 i.e. much after the surrender of tenancy by the tenant with effect from 31.8.1953.
The landlord, therefore, instituted suit No.1645 of 1954 on 28.5.1954 against the tenant.
Later on, the above named sole proprietor formed a partnership with two others viz.
The appellant in the companyrts below sought discovery of all partnership agreements and relevant facts regarding companystitution and re constitution as also registration of the firm in the name of Waldorf Restaurant.
The receiver shall be paid a remuneration of 500 Gm by the decree holder at the time of the service of the xerox of the signed companyy of this judgment.
