Civil Revision No. 6016 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 6016 of 2006 Date of decision: 18.08.2009. State of Haryana and others ....Petitioners Versus Madan Lal and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Rajeev Kewatra, Sr. DAG, Haryana. None for the respondents. ***** VINOD K. SHARMA, J (ORAL) This revision petition is directed against the order dated 14.8.2006, passed by the learned Additional District Judge, Hisar, allowing the appeal filed by respondent No. 1, against the order passed by the learned Civil Judge (Junior Division), Hisar, dismissing an application moved under Order 39 Rules 1 and 2 of the Code of Civil Procedure. The Industries Department, Haryana, sold industrial plot to M/s Banke Bihari Industries, Hisar, which was proprietary concern of Sh. Murari Lal Gupta. The registered conveyance deed was executed in favour of Sh. Murari Lal Gupta on 16.4.1969. M/s Banke Bihari Industries failed to set up industry on the plot, therefore, it was resumed by the department on 11.4.1988. In order to seek possession, an application was filed by the Industries Department Civil Revision No. 6016 of 2006 -2- against Murari Lal Gupta under the provisions of the Public Premises Act, which was allowed and eviction order was passed on 30.3.1993. Appeal was preferred against the order, which was also dismissed on 20.6.1994. Sh. Murari Lal Gupta thereafter filed a civil suit to challenge the order passed under the provisions of the Public Premises Act. The injunction claimed was declined on 20.3.1996 and the appeal preferred against the order passed under Order 39 Rules 1 and 2 of the Code of Civil Procedure also failed. The Department thereafter took possession of the plot on 22.3.2001. Respondent No. 1, who is real brother of Sh. Murari Lal Gupta, thereafter filed a suit for permanent injunction against the petitioners to restrain them from allotting the industrial unit to any other person. He further sought declaration that he was owner of the said industrial unit, and challenged the order of resumption dated 11.4.1988. Along with suit, application under Order 39 Rules 1 and 2 of the Code of Civil Procedure was also moved. The learned trial Court dismissed the application. Respondent No. 1 preferred an appeal. The learned lower appellate Court accepted the appeal. The findings recorded read as under: - “This argument is without force because the plot was not allotted to Murari Lal Gupta but to M/s Banke Bihari Industries as is reflected by allotment letter dated 11.4.1969. M/s Banke Bihari Industry being a juristic person could own property and carry on business through its partners. Partners may come and go but a juristic person lives for ever unless disbanded in accordance with law. In this case, M/s Banke Bihari Industries was allottee Civil Revision No. 6016 of 2006 -3- and Murari Lal was its sole proprietor and later on Madan Lal Gupta, plaintiff was inducted as a partner in the business concern and after sometime Murari Lal Gupta retired from the partnership. The defendants No. 1 to 6 had due notice of change in the constitution of the partnership and therefore, they ought to have show-caused the plaintiff and afforded to him an opportunity of hearing before passing any order detrimental to his interest. The plaintiff has been condemned unheard. Intimation about induction of plaintiff Madan Lal Gupta and about retirement of defendant No. 7 Murari Lal Gupta was duly given to the defendants No. 1 to 6 as and when the induction and retirement took place. That the business was started on the allotted plot is established by overwhelming documentary evidence. In this view of the matter, it is evident that the resumption order as also the eviction order suffer from the vice of illegality and therefore, these orders are not binding on the plaintiff because the same have been passed at his back and without affording to him an opportunity to putting forth his side of the story. It is thus established that the plaintiff has not only a very good prima facie case but balance of convenience as well in his favour and he would suffer irreparable loss in the event of non-issuance of ad-interim interdiction in his favour because that would lead to multiplicity of litigation and he would be embroiled in unsavory litigation. In these circumstances, I hold that the order under challenge is not legally sustainable. Therefore, I accept this appeal, set- aside the order under challenge and restrain the defendants from auctioning the plot in question till final decision of this suit on merits.” The judgment passed by the learned lower appellate Court cannot be sustained, as it proceeds on wrong presumption that a firm is a Civil Revision No. 6016 of 2006 -4- juristic person, which is legally incorrect. The firm does not have any independent existence, from that of partner, as the company or other statutory bodies. It is well established law, that the firm is another name of the partners and the liability of the firm is that of its partner, and is not limited. The learned lower appellate Court held, that there was change of partners, and that the petitioner-State was aware of the change. The impugned order cannot be sustained, for the reason that it was proved that M/s Banke Bihari Industries was served with a notice. If the respondent/plaintiff was the proprietor of the firm, then the notice is deemed to have been served on him. As already observed above, the name of the proprietor-firm is nothing but another name of the partner which has no independent identity separate from that of proprietor. The facts stated above clearly reveal, that the plaintiff failed in the earlier suit, and the possession was thereafter taken by the petitioners. The plaintiff has no prima facie, case to seek injunction, nor balance of convenience could be said to be in favour of the plaintiff/respondent. The firm lost in earlier litigations, thereafter present suit was filed. For the reasons stated above, this revision is allowed, the order passed by the learned Additional District Judge, Hisar, is set aside, and that of learned trial Court is restored, but with no order as to costs. However, nothing expressed above, be treated to be expression of opinion on merits of the case. Revision allowed. (Vinod K. Sharma) August 18, 2009 Judge R.S.