Dismissed

M/S. Madhus Food Products and Anr. v. Mahima Das and 4 Ors.

Gauhati HC8 Jun 2020CRP(I/O)/16/2020

Case brief

AI extract

What is this about?

Revision petition challenging an interim order rejecting an application for amendment of plaint to implead a new party. The High Court upheld the trial court's dismissal, ruling that succession of ownership in a proprietorship firm does not grant locus standi to implead the successor in the existing suit.

What did the court decide?

The revision petition was dismissed; the impugned order rejecting the prayer for amendment of plaint was maintained.

M/S. Madhus Food Products and Anr. Vs Mahima… — Civil Procedure and Limitation | Gauhati HC (2020)

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GAHC010310332019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP(I/O) 16/2020

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1:M/S. MADHUS FOOD PRODUCTS AND ANR.

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BETKUCHI, LOKHRA (NEAR BETKUCHI L P SCHOOL)P.O- SAUKUCHI, GUWAHATI- 781034, REP. BY ITS PROPRIETOR SRI MADHUMITA PATHAK, W/O- SRI HAMENDRA NATH PATHAK, R/O- BETKUCHI, LOKHRA CHARIALI (NEAR BETKUCHI L P SCHOOL)P.O- SAUKUCHI, GUWAHATI- 781034

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2: HAMENDRA NATH PATHAK S/O- LATE GOPAL CHANDRA PATHAK HONORARY ENGINEERING CONSULTANT R/O- BETKUCHI LOKHRA CHARIALI (NEAR BETKUCHI L P SCHOOL)P.O- SAUKUCHI GUWAHATI- 78103

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VERSUS

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1:MAHIMA DAS AND 4 ORS

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W/O- LATE NAREN DAS, R/O- H NO. 55, VILL- BETKUCHI, P.O- SAWKUCHI, LOKHARA CHARIALI NO.1, SENMELA CHATURBHUJ PATH, GUWAHATI- 34, KAMRUP(M), ASSAM

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2:HEMANTA DAS S/O- LATE NAREN DAS R/O- H NO. 55 VILL- BETKUCHI P.O- SAWKUCHI LOKHARA CHARIALI NO.1 SENMELA CHATURBHUJ PATH GUWAHATI- 34 KAMRUP(M) ASSAM

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3:DEBO DAS S/O- LATE NAREN DAS

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R/O- H NO. 55 VILL- BETKUCHI P.O- SAWKUCHI LOKHARA CHARIALI NO.1 SENMELA CHATURBHUJ PATH GUWAHATI- 34 KAMRUP(M) ASSAM 4:HEMEN DAS S/O- LATE NAREN DAS R/O- H NO. 55 VILL- BETKUCHI P.O- SAWKUCHI LOKHARA CHARIALI NO.1 SENMELA CHATURBHUJ PATH GUWAHATI- 34 KAMRUP(M) ASSAM 5:DIGANTA DAS S/O- LATE NAREN DAS R/O- H NO. 55 VILL- BETKUCHI P.O- SAWKUCHI LOKHARA CHARIALI NO.1 SENMELA CHATURBHUJ PATH GUWAHATI- 34 KAMRUP(M) ASSA

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Advocate for the Petitioner : MR B M DEKA Advocate for the Respondent : MR. B BORAH

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BEFORE

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HONOURABLE MR. JUSTICE SUMAN SHYAM

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ORDER

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Date : 08-06-2020

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Heard Mr. B.M. Deka, learned counsel appearing for the petitioner. Also heard Mr. B.

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Borah, learned counsel representing the respondents.

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The order dated 14-08-2019 passed by the learned Civil Judge No. 3, Kamrup (M) at Guwahati in Title Suit No. 81/2017 rejecting the prayer made by the petitioners for amendment of the plaint, inter alia, with a view to implead Smti. Madhumita Pathak in the aforesaid title suit, has been assailed by filing the revision petition invoking the jurisdiction of this Court under Article 227 of the Constitution of India.

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Mr. Deka submits that Smti. Khiroda Pathak, who was originally running a proprietorship concern from the tenanted premises, had entered into a lease agreement dated 22-012010 with the respondents for occupying the said premises but subsequently, ownership of the business changed to Mr. Chiranjit Pathak. Thereafter, the business was again taken over by Smti. Madhumita Pathak, during the pendency of the aforesaid suit. It is on such count that the petitioners have sought to implead Smti. Madhumita Pathak in the suit by filing the application for amendment, which prayer was rejected by the learned Trial Court by the impugned order dated 14-08-2019.

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From a perusal of the impugned order, I find that the learned Trial Court had rejected the prayer for impleadment of the plaint by observing that Smti. Madhumita Pathak does not have any legal character to get impleaded as a party in the suit in place of Mr. Chiranjit Pathak, i.e. one of the plaintiffs in Title Suit No. 81/2017.

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It is not in dispute that the Title Suit No. 81/2017 was instituted by two plaintiffs including the plaintiff No. 1, viz. M/s Madhu Food Products represented by its proprietor Mr. Chitanjit Pathak. It is also apparent that Smti. Madhumita Pathak is a stranger to the

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lease agreement as well as the title suit.

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The application for amendment of the plaint has been filed apparently on the ground that Mr. Chiranjit Pathak, who as the sole proprietor of the plaintiff No. 1, had in the meantime, resigned from the proprietorship of the plaintiff No. 1 firm pursuant whereto, Smti. Madhumita Pathak had taken over the firm as its sole proprietor. Since the plaintiff No. 1 is admittedly a proprietorship firm, the question of the proprietor himself resigning from the firm, in my view, would not arise in the eye of law. Therefore, it is apparent that although the dispute is pertaining to the leased premises, the business itself has changed hands and Smti. Madhumita Pathak has taken over the business from her son Mr. Chiranjit Pathak as the sole proprietor of the plaintiff No. 1. If that be so, I am in agreement with the view expressed by the learned Trial Court that Smti. Madhumita Pathak would not have any locus to get herself impleaded in the suit and pursue the matter in place of her son Mr. Chiranjit Pathak since plaintiff No. 1 is a proprietorship concern.

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Whether Smti. Madhumita Pathak would be entitled to any relief in the suit on the pleaded cause of action is a different matter which can be gone into at an appropriate stage and in an appropriate proceeding. However, considering the facts and circumstances of the case, as noticed above, I am of the view that learned Trial Court had rightly rejected the prayer for amendment of the plaint made by the plaintiffs. Such being the position, I do not find any justifiable ground to exercise the jurisdiction under Article 227 of the Constitution of India and interfere with the impugned order passed by the learned Trial Court.

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In the result, the revision petition is held to be without any merit and is, accordingly,

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dismissed.

No order as to cost.

JUDGE GS

Comparing Assistant

M/S. Madhus Food Products and Anr. v. Mahima Das and 4 Ors.

Case brief

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M/S. Madhus Food Products and Anr. v. Mahima Das and 4 Ors.

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