P L D 1966 Dacca 612 (PLP)

HASAN, J.‑This appeal by the defendant No. 1 arises out of the decree passed by the learned Additional Subordinate Judge, Chittagong in a suit for ejectment. The necessary facts for the disposal of the appeal are as follows : The plaintiff‑firm consisting of two partners purchased the premises in dispute from the original owner which is not disputed. Thereafter the plaintiff filed an application before the House Rent Controller for permission to sue the defendants alleging inter alia that the plaintiff required the premises for the business of the firm and that the defendant No. 1 sub‑let to the defendant No. 1 after the plaintiff's purchase without the plaintiff's consent. The defendants challenged the assertion of the plaintiff but ultimately the plaintiff obtained permission on the ground of bona fide requirement only. The claim of the plaintiff that the defendant No. 2 was a sub‑lessee from the defendant No. 1 without the previous permission of the plaintiff was negatived on the finding that the defendant 1 sub‑let to the defendant 2 with the permission of the original owner before the plaintiff purchased from the original owner. Thereafter the plaintiff‑firm filed the suit giving rise to this appeal on the 11th May, 1961 after terminating the tenancy by a notice under section 106 of the Transfer of Property Act. The plaintiff asserted the grounds taken before the House Rent Controller. Defendant Nos. I and 2 filed written statements Defendant No. 1 asserted that the plaintiff did not require the premises for the business of the firm. Defendant No. 2 supported the defendant No. 1 and also asserted that the defendant No. 2 became a sub tenant under the defendant No. 1 long before the purchase of the plaintiff. In the aforesaid pleadings several issues were raised and tried. The learned Subordinate Judge on consideration of the evidence held in favour of the plaintiff on the points raised and accordingly decreed the suit. In the present appeal, the learned Advocate for the appellant has only pressed three grounds which are (1) that the suit is not maintainable in the present form, i.e. in the name of the firm ; (2) that the plaintiff has a bona fide requirement and (3) that the notice under section 106 of the Transfer of Property Act is neither valid in law nor sufficient. We propose to deal with the points seriatim. From the paper book it appears that 9 issues were framed on 13th November 1961, on the 18th September 1962, 10th issue was framed which runs : "Is the plaintiff entitled to get a decree for compensation as claimed? So the first ground, could not have been raised then but has been raised in the following fact. The plaintiff's only witness while deposing deposed that the plaintiff-firm was dissolved and Haji Gaffar became the sole proprietor of the firm. From Exh. 5 it appears that Haji Gaffar, son of Haji Habib Janoo and Hajira Bibi, daughter of Haji Yusuf Sayan, were the two partners and from Exh. A it appears that the said firm was dissolved on the 21st January 1962. Relying on this fact and also on the provisions of sections 4b, 47 and 48 of the Partnership Act and as well on the provision of Order XXX, rules 1 and 10 of the Code of Civil Procedure, it has been argued that as after the institution of the suit, the firm was dissolved and one man only remained as the proprietor, the suit is not maintainable in the name of the firm. Now coming to the above provisions of law we find :‑

Section 46 of the Partnership Act authorises every partner of a dissolved firm or his representative as against all the other partners or their representatives, to have the property of the firm applied in payment of the debts and liabilities of the firm and to have the surplus distributed among the partners 'or their representatives according to their rights. According to section 47 of the Partnership Act the authority of each partner of the dissolved firm to bind the firm and the other mutual rights and obligations of the partners continue, so far as may be necessary to wind up the affairs of the firm and to com plete transactions begun but unfinished at the time of the dissolu tion, but not otherwise. Section 48 of the Partnership Act provides for rules, subject to agreement by the partners, to settle the accounts between the parties and after dissolution. Order XXX, rule 1 of the Code of Civil Procedure provides that any two or more persons claiming or being liable partners and carrying on business may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action. Order XXX, rule 10 of the Code of Civil Procedure provides that any person carrying on business in the name of a firm can be sued in the name of the firm. In the case of Harjibandas Ghordandas v. Bhagwandas Pursram (A I R 1922 Cal. 390), an ex parte decree was obtained against a dissolved firm after service by post on the firm. An application was filed to set aside the decree on the ground of want of service and that the decree obtained against dissolved firm was not a valid decree. It was observed by Rankin, J. "Now, a suit can be brought against a firm in its firm name even if it be a dissolved firm provided only that the liability arose at a time when the firm was in existence." In the case of Cooverji Varjang and another v. Cooverbai Nagsey Champsey (A I R 1940 Bom. 330), it was held that the partners of a dissolved firm who are partners at the accrual of the cause of action can sue or be sued in the name of the firm. In the case of Pulin Bihari Roy and others v. Mahendra Chandra Ghosal and others (A I R 1921 Cal. 722), it was held that a suit may be brought against a firm in its firm name, even though the firm may have been dissolved before provided only that the liability arose at a time when the firm was in existence. In the case of Wenham v. Battams (1900) 2 Q B 698) a suit was instituted against a dissolved firm. It was observed that the partners could not alter in substance their relations to their creditors on the ground that they had dissolved the partnership and that the suit was maintainable against the firm since the cause of action had accrued before the dissolution. From sections 46, 47 and 48 of the Partnership Act it appears that merely on dissolution of a firm the partnership does not come to a complete end but it continues for the purpose of winding up the business. Every partner has authority to take recourse to steps for that purpose and to complete transaction begun but unfinished at the time of the dissolution and from the above authorities cited it appears that after the dissolution of partnership, a partner may sue or be sued in the name of the firm provided the cause of action arose before the dissolution of the firm and the adjudication on the same remain unfinished. In the instant case when the suit was instituted on 11th May 1961, in the name of the firm, the firm was not dissolved but was dissolved during the pendency .of the suit, namely, on 21st January 1962. Hence at the time of the institution of the suit, the suit was not defective. Now the question is whether merely because the firm was dissolved during the pendency of the suit and on its dissolution Haji Gaffar became the sole proprietor, the suit become untenable. In our opinion, it is not. According to the provision of section 47 of the Partnership Act every partner of the dissolved firm has authority to complete the transaction in question which began but remain unfinished at the time of the dissolution of the firm. Furthermore, the suit was properly constituted when it was instituted. We do not also find any substance in the contention of the appellant that the affairs of the firm were completely wound up and the second partner completely retired and her rights and liabilities completely ceased. Exh. A does prove more dissolution and nothing more and the evidence of P. W. 1 does not go beyond that. In our above view the provision of ,Order XXX, rule 10 of the Code of Civil Procedure and the case of Bhagvan Manaji Marwadi and others v. Hiraji Premaji Marwadi (A I R 1932 Bom. 516) have no application to the instant case. The second ground urged on behalf of the appellant is that the trial Court erred in holding that there was a bona fide requirement of the premises in question. In support of this contention 3 branches of argument have been advanced. The first branch of argument is that evidence as disclosed does not prove the bona fide requirement of the plaintiff. We do not find any substance in this contention. The plaintiff has examined one witness who has deposed that the plaintiff purchased the premises for carrying on personal business and has no other building. In the cross‑examination of this witness his evidence in chief has not been shaken. It has been stated in cross‑examination that the plaintiff requires the house for bona fide carrying on business and that though their new staff has been housed in a kutcha shed the entire staff could not be accommodated in that kutcha shed. The defendant has also examined one witness. The only evidence that has been given is that the plaintiff has no special necessity for the disputed premises, excepting that nothing has been said as to whether the plaintiff has any other premises suitable for the purpose of carrying on the business of the firm. On the evidence we are satisfied that the plaintiff has been successful in proving that the requirement of the premises in question is a bona fide one: The second branch of argument is that assuming that there was a bona fide requirement by the firm but with the winding of the firm on the 21st January 1962, the requirement came to an end. The requirement of Haji Gaffar the remaining proprietor is distinct and different from the requirement of the firm. We do not find also any substance in this contention. It appears from the record that the requirement was for the business of the firm and after the dissolution, the requirement of the premises is also for the same business though it has vested in Haji Abdul Gaffar. Furthermore, we have already observed that after the dissolution of the firm and before the complete winding up of the affairs of the firm, the rights and liabilities of the partners of the dissolved firm remained in so far as the causes of action which arose and began before the dissolution of the firm and remained unfinished on the date of dissolution. In the present case the cause of action in question arose before the dissolution of the firm and thereafter the first‑before the dissolution instituted the suit giving rise to the present appeal and that being so the suit instituted by the firm continues to be the suit by the firm. The third branch of argument is only the reiteration of the first ground, namely, in view of the dissolution of the firm after the institution of the suit, it cannot be decreed in its present form. We have already observed that the suit for the reasons stated above is maintainable in the name of the firm. The third ground urged is that notice under section 106 of the Transfer of Property Act determining the tenancy is neither valid nor sufficient. In support it has been contended that by the notice the plaintiff has directed the defendant to quit the premises by the 31st December 1960. The word "by" has no legal meaning but its dictionary meaning is "during" and accordingly the possession of a tenant of a premises during substance of the tenancy is a lawful one and as such the tenant could not have been asked to vacate during the subsistence of the tenancy. In support reliance has been placed on the case of Benoy Krishna Das and others v. Salsiccioni and others (37 C W N 1 (PC)). On the other hand, it has been argued by the learned Advocate for the respondent that in order to determine whether the notice under section 106 of the Transfer of Property Act is sufficient and valid, the whole notice shall have to be taken into consideration and if the notice be considered as a whole, it will be seen that the defendant was directed to vacate by the end of 31st December 1960, and not on or during the 31st December 1960. It has been further contended that even in a case directing the tenant to vacate within the last day of the tenancy, it has been found by the Supreme Court in the case of Civil Appeal No. 57 D of 1963, Mst. Kamaljan Begum v. Kabiruddin Ahmed, that such notice is valid. The relevant portion of the judgment of Supreme Court relied on by the learned Advocate is: "This disposes of the arguments advanced on behalf of the appellant. It remains only to notice the argument that Exh. `A', even if it was the correct original sent to: the respondent, was a valid and sufficient notice to quit. Exh. `A', as produced by the respondent, shows that the latter was asked to quit and vacate the said premises "within the 31st day of January". Section 106 of the Transfer of the Property Act requires that in the case of a lease from month to month the lease is terminable by 15 days' notice "expiring with the end of the month of the tenancy". This language is not, strictly speaking, in compliance with the provisions of this section, for, within the month may even mean before the expiry of the month. The rule of construction of a notice to quit is to put upon it a liberal construction in order that it should not be defeated by slight in accuracies in the date of the expiry of the notice. But at the same time the notice must' be reasonable and certain so that the recipient of it is not misled as to the intention of the notice‑giver." In view of the above decision of the Supreme Court we are unable to hold that the notice in this case is not sufficient and valid. We accordingly, find no substance in any of the contentions and dismiss the appeal without any order as to costs. ABU MD. ABDULLA, J.‑I agree. S. Q. Appeal dismissed.