Judgment:
Nisith Kumar Batabyal, J.
1. Being aggrieved by the judgment and order dated 30th July, 1992 passed by the learned Trial Judge in Civil Order No. 9333 (W) of 1991, the writ petitioners have preferred this appeal against the order of dismissal of the writ petition. In the original writ application, the appellants have prayed for issuance of a writ of Mandamus commanding the respondent Nos. 1, 2, 3 and 4 to grant and/or to renew the licence under Bye-Law No. 55A of the Bye-laws framed by the Calcutta Port Trust in favour of the appellant No. 1 who claims to be a registered Partner of the duly registered Partnership Firm, the appellant No. 2 and also to his Sircars, Clerks, Servants and Agents.
2. There was originally a Partnership business started under the name and style of Messrs, B.B. Bose & Sons to carry out business of clearing; and forwarding agents for the Customs Authorities in Calcutta in the Jetty of Calcutta Port Trust between Shri Ganesh Chandra Bose (the respondent No. 7 in the appeal) with 75% share and Shri Dinendra Kumar Bose (the respondent No. 8 in the appeal) with 25 % share. The Deed of Partnership was duly registered. The appellant, Shri Bijoy Kumar Bose is a son by the first wife of respondent No. 7 and Shri Sanjoy Kumar Bose, the respondent No. 9 in the appeal is another son of respondent No. 7 by his third wife. In the year 1984, due to old age Shri Ganesh Chandra Bose (the respondent No. 7) became infirm and fell seriously ill and is still lying bed-ridden and paralysed. Both the Partners of the said firm executed and registered on 19.11.84 an irrevocable Power-of-Attorney in favour of the appellant No. 1. Subsequently on 24-4-1989, Shri Ganesh Chandra Bose (the respondent No. 7) duly admitted in his letter dated 24th April, 1989 addressed to the Collector of Customs, Calcutta (the respondent No. 5 in this appeal) that he had relinquished his 25% share or interest out of his 75% share in the Partnership in favour of the appellant, Shri Bijoy Kumar Bose and another 25%: share in favour of his another son, Shri Sanjoy Kumar Bose (the respondent No. 9). According to the appellants, when any Partner relinquishes his share or any part or portion of his share in favour of a new Partner, such a relinquishment need not be registered under the Indian Partnership Act. Accordingly, with effect from 24th of April, 1989, on the basis of the admission of Shri Ganesh Chandra Bose, respondent No. 7, the appellant has become a new Partner in the Partnership Firm with 25% share therein and the Power of Attorney executed and registered in 1984 has merged with the power of the appellant as new Partner. The grievance of the appellant is that though he has applied for renewal of licence under Bye-law No. 55A of the Bye-laws framed by Calcutta Port' Trust in favour of the appellant as a Partner of the Firm appellant No. 2 and also to his Sircar, Clerks, Servants or Agents in terms of the said Bye-law of the Calcutta Port Trust read with Bye-law No. 3 thereof, no action has been taken thereon. Hence, the appellants have prayed for the issuance'' of a writ of Mandamus commanding the respondent Nos. 1, 2, 3 and 4 to grant or renew the licence under Byelaw No. 55A of the Bye-laws framed' by the Calcutta Port Trust in favour of the appellant No. 1 and a writ or a writ in the nature of Prohibition prohibiting the respondent Nos. 1 to 4 and their agents, servants etc. and the respondent Nos. 5 and 6 from preventing the appellant and his Sircars, Clerks, Servants or Agents etc. to work and function in the Jetty and Wharves of Calcutta Port and other reliefs.
3. The writ application has been hotly contested in the Court below.
4. In the affidavit-in-opposition on behalf of the respondent No. 8 it has been stated that there was really a Partnership between Ganesh Chandra Bose and Dinendra Kumar Bose as stated in the writ petition. It is also not disputed that Ganesh Chandra Bose, respondent No. 7 became ill and paralytic and unable to sign from October, 1990. But it has been stated in paragraph 13 of the affidavit-in-opposition that the Power-of-Attorney dated 19-11-84 and the letter dated 24-4-89 were the subject-matter of dispute and/or controversy in Title Suits No. 1370 of 1990 and 1599 of 1990 in the City Civil Court at Calcutta between the parties and in the said Suit by order dated 25-1-91 in Annexure 'H' and by order dated 7-3-91 in Annexure 'I' to the said affidavit-in-opposition it has already been decided by the learned Judge, City Civil Court that the appellant, Bijoy Kumar Bose and the respondent No. 8 are neither Partners nor Agents nor Attorneys on the basis of the said two documents. It has been denied that the, appellant became a Partner to the extent of 25% share as stated by him.
5. In the affidavit-in-reply against the affidavit-in-opposition by respondent No. 8, the appellant has stated that he denies the statements and/or allegations or contentions made in paragraphs 3, 4, 5, 6 and 7 of the affidavit-in-opposition, in view of the statements made by him in paragraph 2 of his affidavit-in-reply. It may, in this connection, be stated that the dispute about the alleged admission by which the appellant has claimed that he has acquired 25% share in the Partnership is covered by paragraph 7 of the affidavit-in-opposition.
6. The Learned Trial Judge has been pleased to dismiss the writ application in view of the fact that the appellant did not come to Court with clean hands and suppressed material facts before the Court. According to the Learned Trial Judge, the appellant has violated the principle that he who seeks enquiry must be equity.
7. Against this order of dismissal, the appellants have come in appeal which is hotly contested.
8. The Learned Lawyer for the appellants, Mr. Mahadeb,Ghosh has submitted that under Section 68(2) of the Indian Partnership Act, a certified copy of an entry relating to a firm in the Register of Firms may be produced in proof of the fact of the registration of such firm and of the contents of any statements, intimation or notice recorded or noted therein. The [Learned Lawyer has in this connection drawn the attention of the Court to Annexure 'A' to the writ petition which is a Certified copy of the' Register of Firms showing an entry under the description in Column-III of documents filed 'Notice of changes in the Constitution'. This annexure shows that there are four Partners in the Firm' of Messrs. B.B. Bose & Sons and the number of the firm on the Register is L-5235. The names of the four Partners are, Messrs. Ganesh Chandra Bose, Dinendra Kumar Bose, Bijoy Kumar Bose and Sanjoy Kumar Bose. The date of filing or registration is 6-4-1991/11.4.1979. According to the Learned Lawyer for the appellants this certified copy of the relevant entry in the Register of Firms is in proof of the fact that the appellant No. 1 and the respondent No. 9 are Partners of the Firm of Messrs. B.B. Bose & Sons, And, therefore, the respondent Nos. 1 to 6 have no reasonable excuse for withholding renewal/granting of licence in favour of the appellant No. 1 as Partner of appellant No. 2 and to his Sircars, Clerks, Servants or Agents etc. from working in the Jetty and Wharves of Calcutta Port Trust under Bye-law 55A of the Bye-laws framed by the Calcutta Port Trust. It has been further argued by the Learned Lawyer for the appellants that there was no suppression of any material fact by the appellants in the writ petition dis-entitling them from any relief on the principles of equity. According to the Learned Lawyer for the appellants, the writ petition ought to have been allowed by the Learned Court below.
9. The Learned Lawyer for the respondent Nos. 1 to 4 has submitted that they have withheld the granting/renewal of the licence in view of a litigation between the parties in the City Civil Court at Calcutta. As soon as the dispute relating the title of the parties is settled by the decision of a Competent Court of law, the Port Authorities' will grant or renew the licence under the rules.
10. The Learned Counsel for the respondent Nos. 7, 8 and 9 has submitted that the writ petitioner has been rightly rejected by the Learned Trial Court as there is no substance in the contention of the appellants. According to the Learned Counsel, at least two Suits are pending before the competent Civil Court for adjudication of the question whether the appellant No. 1 is a Partner of the Firm, Messrs. B.B. Bose & Sons. There are other question involved in, these two Suits also. The basic facts are seriously disputed in the instant case. In the circumstances, there is no occasion for the Writ Court to entertain the petition filed by he appellants. Another point argued by the Learned Counsel fer the respondent Nos. 7, 8 and 9 is that the entry in the Register of Firms about the alleged change of Constitution of the Firm cannot have any binding effect upon the two Partners of the Firm. It has been further argued by the Learned Counsel that there was a suppression of material facts in the writ petition as there was no mention about the rejection of the petition for temporary injunction filed by the appellants in one of the Suits.
11. There is no doubt that the respondent No. 8 filed Title Suit No. 1370 of 1990 on 10th of September, 1990 against the appellant No. 1 and the respondent No. 9 for declaration and permanent injunction with prayers that the irrevocable Power-of-Attorney dated 10-11-84 became void and unenforceable having; been revoked on 9-1-90, that a permanent injunction be issued restraining the defendants and each of them for acting as Agents and/or Attorneys on the basis of the said Power-of-Attorney or otherwise and other reliefs.
12. Shri Bijoy Kumar Bose, the appellant also filed Title Suit No. 1599 of 1990 in the City Civil Court at Calcutta against the Calcutta Port Trust and its Officers' as principal defendants and the registered firm, Messrs. B.B. Bose & Sons a pro forma Defendants for a declaration and injunction with prayers that the plaintiff is a Partner having 25% share or interest in the firm and permanent injunction restraining the defendants from interfering with the business of the plaintiff by refusing to renew the licence to the plaintiff's subordinate workers, agents etc. and other relief. He also filed petition for temporary injunction in that Suit but it was rejected. Thereafter he went in appeal against that order and filed an application for stay of the impugned order but both the appeal and the application were rejected. There is no mention within the four-corners of the writ petition about the fate of the application for injunction at the instance of the appellant No. 1 filed in the Learned Trial Court and its journey in the superior Court. It has been strenuously argued from the side of the constenting private respondents that this conduct of the appellants constitutes suppression of a very material fact before the Writ Court and hence it can be very well said that he has come with unclean hands before the Court of equity.
13. It has been argued from the side of the appellants that there was no suppression of material fact in this case as those facts were irrelevant. We do not proposes to enter into this aspect of the controversy right now. Let us take the most congenial view of the issue so far as the appellants are concerned. For the sake of argument, we assume that the non-mentioning of the facts as stated above within the body of the writ petition, does not constitute suppression of material fact but the fact remains that Suits in a competent Civil Court are pending where the basic facts on which the present writ application is founded are at the centre of a reging controversy. It has been held in Thakur Prasad Sao v. Board of Revenue (1976)3 SCC 850, that questions of fact would not be tried in writ proceedings. In D.L.F. Housing Construction (P) Ltd. v. Delhi Municipal Corporation etc. : AIR1976SC386 , it has been held that in a case where the basic facts are disputed and complicated question of law and fact depending on evidence are involved, the Writ Court is not the proper forum for seeking relief. The fit course in the High Court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case. The competent Civil Court, here in our case, is the proper authority to decide whether the appellant No. 1 has acquired any right, title or interest in the Partnership business as alleged by him, in view of the alleged admission made by the respondent No. 7. It can never be the business of the Writ Court to decide that disputed question of fact and law by usurping the functions of the competent Civil Court on the matter specially when the Suits are already pending on that point. In this view of the matter, the writ petitioner itself was not entertainable at all.
14. In the earlier paragraph above it was assumed for the sake of argument that the omission to state certain facts within the four-corners of the writ petition did not constitute suppression of a material fact. Now let us assume that the said conduct of the appellants was tantamount to suppression of material fact. In that case also the appellants have no case as the relief under Article 226 is a discretionary relief and no Court of equity will grant such relief to a person who comes to Court with unclean hands. Way back in 1953 it was laid down by a Division Bench of this High Court presided over by Chakravartti, C.J. in Hindustan Motors Ltd. v. Union of India and Ors. (58 CWN 209), that an, application under Article 226 of the Constitution is liable to be thrown out at site when it deliberately suppresses material facts.
15. The Learned Counsel for the appellants has strenuously argued that in view of the presumption raised under Section 68(2) of the Indian Partnership Act, the appellants have been able to prove that the appellant No. 1 became a partner of the reconstituted firm and the contents of the intimation or notice recorded in the Register of Firms are prima facie true. The Learned Trial Judge has taken the view that Section 58 of the Indian Partnership Act in no uncertain terms provide that any intimation of change of Constitution or reconstitution of the firm shall have to be effected by the signature of all the Partners themselves or their agents specialy authorised in that regard. In this case, according to the Learned Trial Judge, the notice of reconstitution of the firm dated 6th April, 1991 was signed by Messrs. B.B. Bose & Sons through the pen of the appellant No. 1 only. No other person signed the same. In our view this is not the correct perception of the legal position so far as our law is concerned. Section 68 of the Partnership Act deals with Rules of evidence. The first sub-section notes that any statement, intimation or notice recorded in the Register of Firms shall foe conclusive proof of any facts stated therein as against the person by whom or on whose behalf such statement, intimation, notice etc. was signed. The second sub-section lays down that certified copy of any entry relating to a firm in the Register of Firms may be produced in proof of the fact of the registration of such firm and of the contents of any statement, intimation etc. recorded therein. That certainly does not mean that the entries in the Register of Firms under sub-section (2) will over-ride the lawful rights of others.
16. Section 58 of the Partnership Act deals with application for registration of a firm. Certain formalities have got to be complied with and the statements shall be signed by all the Partners or by their agents specially authorised. Section 59 of the said Act lays down what the Registrar is required to do on receipt of such an application for registration. Section 60 of the Act deals with recording of alterations in firm-name and principal place of business. Here the statement has got to be signed and verified in the manner as required under Section 58. Section 61 of the Act deals with noting of closing and opening of Branches. Under this section, any Partner or Agent of the firm may send the intimation to the Registrar who shall make a note of such intimation in the entry relating to the firm in the Register of Firms and shall file the intimation along with the statement relating to the firm filed under Section 59. Section 62 of the Act deals with noting of changes of name and addresses of Partners and intimation under this section can be given to the Registrar in the same manner as in Section 61. Section 33 of the Act deals exclusively with recording of changes in the Constitution and Dissolution of a firm. Under this section, and incoming, continuing or outgoing Partner may give notice to the Registrar of the change and the Registrar shall file the notice along with statement relating to the firm filed under Section 59.
17. It is obvious from above that in case of changes in the Constitution of a Registered Firm, intimation can be given by any incoming partner. Section 58 of the Act has got nothing to do with the recording of changes in the appropriate Registrar on the reconstitution of the Partnership. Therefore, no exception can be taken to the fact that in our case the intimation was signed by the so-called incoming Partner, the appellant No. 1 and the Registrar filed it along with the statement relating to the firm already filed under Section 59.
18. The entry in the Register of Firms under sub-section (2) of Section 68 of the Partnership Act cannot per se take away the right and/or interest of any partner. The certified copy of an entry of the Register of Firms can be produced to prove prima facie the fact of the registration of the firm and of the contents of any statement etc. noted therein. But this has got nothing to do with the veracity of those statements which may be true or false. The only Court which can decide that question in the competent Civil Court and not a Writ Court. The legal position in connection with this aspect of the matter has already been explained above.
In this view of the matter, we hold that the certified copy of the Register of Firms as produced by the appellants marked as Annexure 'A' to the writ petition cannot clinch to issue in favour of the appellants.
19. So far as the prayer for granting a licence by a Writ of Mandamus is concerned, it is sufficient to note the principles laid down in State of U.P. and Anr. v. Raja Ram JaisWal and Anr. : [1985]3SCR1021 . In that case it was held in paragraph 16 at page 1117 of the reported judgment as follows :-
20. 'The High Court was, of course, clearly in error in issuing a Mandamus directing the District Magistrate to grant a licence, where a statute confers power and casts a duty to perform any function before the power is exercised or the function is performed, the Court cannot in exercise of writ jurisdiction supplant the licensing authority and take upon itself the functions of the licensing authority. The High Court was hearing a writ petition praying for a writ of Certiorari for quashing the order of remand. The High Court could have quashed the order of remand, if, it was satisfied that the order suffers from an error apparent on the face of the record. But there its jurisdiction would come to an end. The High Court cannot then proceed to take over the functions of the licensing authority and direct the licensing authority by a Mandamus to grant a licence'.
21. In view of the discussions made above, we find no merit in the appeal which is accordingly dismissed. We uphold the impugned judgment and order though not for the reasons given by the learned Trial Judge. In the circumstances of the case, no order is made as to costs.
A.M. Bhattacharjee, C.J.
22. I agree.