Messrs. Universal Mill Stores vs Fathima Bai S. Bhagat

Sivasubramaniam, J.—This civil revision petition is directed against the order of eviction passed against the petitioner in R.C.O.P. 2641 of 1983 on the file of the learned Rent Controller (XI Judge, Court of Small Causes,) Madras confirmed in the appeal in R.C.A. 880 of 1984 on the file of the appellate authority (VI Judge, Court of Small Causes), Madras. The petitioner is the tenant and the respondent is the landlady. The respondent-landlady filed the petition in R.C.O.P. 2641 of 1983 for eviction against the petitioner-tenant which is a partnership firm on the ground that she requires the petition building for the business which she is carrying on along with her son, Kuresh Bhagat in one shop in the ground floor of premises No. 14, Sunkurama Chetti Street. Madras-1, which is a rented building According to her, she is not in occupation of any non-residential building of her own for the purpose of carrying on her business which is now being carried on in the said rented building. Even though the tenant promised to vacate, they have refused to do so. As she requires the building for her own business she has come forward with this petition for eviction.

The petitioner-tenant resisted the eviction petition contending that the landlady is not carrying on any business in a rented building and the eviction petition has been filed solely with a view to evict them since they have refused to pay enhanced rent demanded by her. According to them, the requirement of the landlady is not bona fide. It was further contended that the building was let out to Messrs. Universal Mill Stores and Universal Sales Corporation and hence the petition filed only against Messrs. Universal Mill Stores is bad for non-joinder of necessary party.

The learned Rent Controller accepted the contentions of the landlady and ordered eviction. As against the said order, the tenant preferred the appeal in R.C.A. 880 of 1984 and the appellate authority confirmed the findings of the learned Rent Controller and dismissed the Appeal. Aggrieved against this decision, the tenant has preferred the above revision.

Originally, the landlady filed the eviction petition impleading the partnership firm alone as a party. Therefore, in all the subsequent proceedings, the firm alone is figuring as a party and its partners are not made parties separately. In view of the latter ruling of the Supreme Court in Chhotelal Pyarelal, The Partnership Firm and Others Vs. Shikarchand, which held that since the CPC does not apply to proceedings under the Rent Control Order, no application for eviction can be maintained against a firm in the firm name and that the firm is merely a compendious name for the partners constituting it and that it is only by virtue of the provisions of O.30 of the C.P. Code, that a firm can sue and be sued in its own name without the partners being impleaded eo nomine. The Supreme Court categorically held that a firm cannot be sued in the firm name in so far as the application for eviction under the Rent Control Act is concerned. However, it has been further held that this cannot by itself result in the dismissal of the application as it would be merely a case of misdescription, of the parties, to the application and that it can be corrected at any stage of the proceedings. In order to avoid any technical objection later on, the respondent-landlady filed the petition in C.M.P. No. 16187 of 1987 to implead the respondents 2 to 7 in the said petition, who are the individual partners of the first respondent firm, as respondents 2 to 7 in this revision petition and dispose of the same on merits.

Mr. Unnikrishnan, learned counsel appearing for the landlady, who is the petitioner in C.M.P. No. 16187 of 1987 submitted that the said petition has been filed only to avoid any technical difficulty in executing the order of eviction. According to him, the impleading of the firm alone in the eviction petition is only a mis-description and it can be corrected at any stage of the proceedings. He emphasised on the observations of the Supreme Court to the effect that the partners of the firm were before the court though in a wrong name. According to him, the firm was effectively represented by its partners and as a matter of fact, one of the partners has been examined as a witness on behalf of the firm. Moreover, the proposed parties have not raised any contention now that the partner, who had represented the firm so far has not acted diligently or that he has acted against the interests of the other partners. According to him, the other partners are sought to be impleaded only for the purpose of satisfying certain provision of law and there is no scope for any further evidence or enquiry in this matter. He relied on the decision of Srinivasan, J. in Messrs. Amaravathi Textiles Madurai and others v. M.P. Arunachalam, C.R.P. 1898 of 1987 order dt. 8-1-1988 wherein the learned Judge, relying on the observations of the Supreme Court to the effect that the partners of the firm are before the court though in a wrong name, held that the impleading of the partners at the stage of revision is only a formality in order to cure the technical defect and that it must be taken that all the partners were before the Rent Controller as well as the appellate authority though under the compendious name of the firm. The learned Judge came to this conclusion on the basis of the admitted fact that even though the rent control petition was disposed of in that case long after the said judgment of the Supreme Court, as reported, the tenant did not take any objection to the maintainability of the application without the partners of the firm having been impleaded in the petition for eviction. On the basis of the judgment of Srinivasan, J., the learned counsel contended that the proposed parties can be added in the revision itself and the matter may be disposed of on merits by this Court. He pleaded that remanding the matter to the appellate authority would only delay the proceedings resulting in unnecessary hardship to the landlady who has succeeded in getting an order of eviction before the authorities.

Mr. M.R. Narayanaswami, learned counsel appearing for the revision petitioner contended that once the new parties are added it is just and necessary that they should be given an opportunity to put forth their case. He relied on the said judgment of the Supreme Court in Chhotelal Pyarelal, The Partnership Firm and Others Vs. Shikarchand, and my judgment in M/s. N.S. Doshi & Co. v. P. Ganesan, 1987 T.N.L.J. 305 wherein following the decision of the Supreme Court, I have remitted the matter to the appellate authority to enable the newly added partners to file their counter and participate in the enquiry. It is no doubt true that it is not always necessary to remand the matter to the appellate authority or to the Rent Controller. When there is no complaint by the other partners that the partner, who was in charge of the proceedings, has acted against the interests of the firm or against the interests of the other partners it is not necessary to remand the matter to the Rent Controller as the proposed parties are not going to do anything that has been done by the other partners. As pointed out by the Supreme Court, all the partners were really before the court. But it is only a legal requirement that individual partners must be made as parties. In this view of the matter, I respectfully agree with the observations of Srinivasan J; above referred to. Therefore it depends upon the facts of each case and it is not the court to find out whether a remand is necessary or not. In the decision rendered by Srinivasan J. applications were filed for impleading the partners in the rent control petition as well as in the revision petition and therefore, it was felt unnecessary to remand the matter to the learned Rent Controller. But, here we find the landlady has filed C.M.P. 16187 of 1987 seeking to implead the partners only in this revision petition and no petition has been filed either to implead the proposed parties in the rent control petition or in the appeal. Similarly, no steps have been taken to amend the Rent Control Petition and the other proceedings leading to the filing of the present revision petition. In view of this situation, it has become necessary to remand the matter for the said purpose. Even though Mr. M.R. Narayanaswami stressed that the matter should be remanded to the Rent Controller, I do not think it necessary to do so, in the circumstances of the case. In the result, C.R.P. 2496 of 1985 and C.M.P. 16187 of 1987 are allowed and the matter is remanded to the appellate authority for the purpose of enabling the respondent-landlady to implead the partners both in the rent control petition and in the appeal and carry out the consequential amendments. As the maintainability of the eviction petition without impleading the partners, is being questioned, I have not gone into the merits of the case in this revision petition and it is left open to be decided after the new parties are impleaded. The respondent is directed to file the necessary petitions for impleading and amendment within two weeks from the date of receipt of a copy of this order by the appellate authority and the newly added parties will be permitted to make their submissions before the appellate authority. In the circumstances of the present case, the parties are not permitted to let in any additional evidence before the appellate authority. The appellate authority is directed to dispose of the appeal on merits within four weeks from the date of filing of the petitions for impleading and amendment. There will be no order as to costs in this revision petition.