Rajarajan and another vs J. Mariya Stella and 2 others

K.A. Swami, C.J.—The only question that arises for consideration in this appeal is as to whether the respondents should be restrained from

executing the decree against the appellant passed in RCOP No. 5 of 1981 on the file of the Rent Controller (District Munsif), Mayiladuthurai,

confirmed by the Appellate Authority in RCA. No. 4 of 1993 and further confirmed by this Court in CRP No. 3220 of 1984 on the ground that

the said decrees in-executable and unenforceable as having been passed without jurisdiction. The facts recession to decide the question are no

more in dispute the suit property is comprised in T.S. Nos. 1127 and 1128 situate within the municipal limit of Mayiladuthurai measuring about

8840 sq. ft. having three small shops in 200 sq. ft. The father of the respondents was the owner and the landlord of the premises. It was let out to

the partnership firm known as ''Rajagopala Vandaiyar and Sons represented by its Managing Partner Rajagopala Vandaiyar. One Joseph Nadar

filed the aforesaid RCOP. No. 51 of 1981 against the aforesaid partnership firm represented by its Managing Partner Rajagopala Vandaiyar as

first defendant and Rajagopala Vandaiyar as second defendant During the pendency of the proceeding, Joseph Nadar expired and therefore,

respondents 1 to 3 herein were brought on record as legal representatives of the deceased landlord. These was no objection whatsoever raised at

any stage of proceedings that all the partners of the Rajagopala Vandaiyar and Sons were necessary panics to the eviction proceedings and that, in

the absents of them, the proceeding was not maintainable is may be pointed out here that the plaintiffs, in the present suit O.S. No. 92 of 19921

have sought for a declaration that the decree for eviction passed in the afforested proceeding is null and void and not binding of these plaintiffs who

were not panics in these proceedings. The plaintiffs and other partners were not made parties to the eviction proceedings. Therefore, the decree

passed in the evident proceedings, apart from being null and void did no bind them. The contention so raised cannot be said to be any more res

Integra as in our view, it is covered by a decision of the Supreme Court in Chhotelal Pyarelal, The Partnership Firm and Others Vs. Shikarchand, .

In the aforesaid case also the partners were not made parties. This contention was raised only in the High Court and it was held by the Division

Bench of the High Court that the order of eviction was maintainable against a partnership firm without joining any of the partners, constituting the

partnership firm, as respondents to application. The Supreme Court agreed with the view of the Division Bench and it was held as follows:-

Now, there can be no doubt that since the CPC does not apply to proceedings under the HRC order, no application for eviction can be

maintained against a firm in the firm name. The firm is merely a compendious name for the partners constituting it and it is only by virtue of the

provisions of Order 30 of the CPC that a firm can sue and be sued in its own name without the partners being impleaded co nominee it is.

Therefore clear that the form M/s. Chhotelal Pyarelal could not be sued in the firm name by the respondent in so for as the application for eviction

under the HRC Order was concerned. But we agree with the Division Bench of the High Court that this cannot by itself result in the dismissal of

the application. It would be merely a case of misdescription of the respondents to the application and this misdescription can be corrected at any

stage of the proceedings. There can be no doubt that the partners of the firm are before the court though in a wrong name.

The learned counsel appearing for the respondent has, therefore, applied to us for leave to amend the cause title of the Original application by

adding the names of the partners of the firm of M/ s. Chhotelal Pyarelal as respondents along with the firm of M/s. Chhotelal Pyarelal and carrying

out necessary consequential amendments in the body of the application. We allow the application for amendment and remit the case back to the

Rent Controller so that he may dispose it of on merits. The respondent will carry out the amendment in the application for eviction within two

weeks from the date of receipt of this Order by the Rent Controller and the newly added respondents will file their written statement in answer to

the application for eviction within a further period of four weeks thereafter. The Rent Controller will then proceed to dispose of the application for

eviction as expeditiously as possible and in any event before the expiration of period of 6 months. There will be no order as to costs of the appeal.

(Emphasis Supplied).

Thus, the Supreme Court pointed out that the irregularity was curable and the same ought to have been raised earlier and therefore, the matter was

remitted after allowing the amendment of the cause title.

In the instant case, until the matter was concluded and the decree for eviction became final, no contention was raised regarding non-making of the

partners as parties to the eviction proceedings. It is only in an independent suit such a contention has been raised challenging the decree for eviction

passed by the competent court. It is not possible to hold that the District Munsif functioning as Rent Controller was incompetent to pass a decree

for eviction. The only question is whether the decree for eviction passed is binding upon the plaintiffs in the present suit. We have at the beginning

itself, pointed out that the father of the plaintiffs was a party to the eviction proceedings in his individual capacity as second respondent in the Rent

Control proceedings. He was bound by the decree passed for eviction. The plaintiffs apart from being partners, are also the heirs of the deceased

second Respondent As such, they are also bound by the decree that was binding upon their father. Hence, we are of the view that apart from the

fact that such a contention cannot be entertained in an independent suit as it was open to the Respondents to raise it in the eviction proceedings and

in that event, it was open to the applicant in the eviction proceedings to amend the petition as has been held by the Supreme Court in a similar case

in Shah Phoolchandlalchand v. Parvathi Sai (1989 I.S.C.C.556). The relevant portion of the judgment is as follows:-

Mr. Nayar, learned counsel for the appellants has urged before us that the impugned judgment must be set aside as the eviction petition was filed

against the appellant''s firm and one other partnership firm. M/s. Adeshar Glasa Mart, without joining any of the partners of the said firms as

respondents or serving them as partners and hence, the eviction petition was not maintainable at all.

He placed strong reliance on the decision of this Court in Chhotelal Pyarelal, The Partnership Firm and Others Vs. Shikarchand, In that case an

eviction petition was filed by the respondent landlord against the appellants partnership firm -under clause 13(3) (vi) and (vii) of the Central

Provinces and Berar Letting of Houses and Rent Control Order, 1949. The appellant raised a preliminary objection that the application against the

partnership firm was not maintainable without joining its partners as respondents. It was held by his Court that it is only by virtue of the provisions

of Order 30of the Code of Civil Procedure, 1908, that a firm can sue and be sued in its own name without the partners being impleaded. It was

pointed out by Mr. Nayar that the CPC was not applicable to the proceedings under the said Rent Act either and hence, the ratio laid down in the

aforesaid decision was directly applicable to the case before us. In our view, it is not open to Mr. Nayar to raise this contention is not one which

has been fatal to the eviction petition. Had this contention been raised in the trial court or even in the first appellate court, would have been open to

the respondent to amend it the eviction petition and join the partners as respondents. In the aforesaid decision in Chhotelal Pyarelal Case relied

upon by Mr. Nayar, the objection to the maintainability of the petition was raised at the earliest stage and was wrongly negatived by the trial Court.

In fact, this Court observed as follows:-1984-4-313 at (SCC. P. 315, para 2)

But we agree with the Division Bench of the High Court that this cannot by itself result in the dismissal of the application. It would be merely a case

of misdescription of the respondents to the application and this misdescription can be corrected at any stage of the proceedings. There can be no

doubt that the partners of the firm are before the Court though in wrong name"". In the case before us, no such objection has been raised at all till

the stage of special leave and it is surely not open to the appellants to raise such an objection at a very late stage and thereby delay matters for a

number of years. This contention, must therefore be negatived.

(Emphasis supplied).

Therefore, we are of the view that the plaintiffs are not entitled to injunction as they are bound by the decree passed against their father Hence

we hold that the decree for eviction cannot be held to be either null and void or not binding upon the plaintiffs. However, it is contended that the

direction issued by the learned single judge permitting the petitioners in RCOP No. 51 of 1981 to amend the decree is impermissible and such a

direction cannot be issued in a proceeding arising out of a suit filed by the appellants/plaintiffs. In view of what we have stated above, it becomes

unnecessary to consider this contention. However, we point out here that the observations contained in the last portion of the judgment of the

learned single judge are only to be read as reserving liberty to the petitioners in RCOP. No. 51 of 1981 to amend the decree and not directing

amendment of the decree under appeal itself. Before parting with the case, we may also point out here that the respondents are even ready to grant

time to the appellants if the appellants are ready to pay arrears of rent and give an undertaking that they will vacate the premises within a stipulated

period. For this purpose we specifically adjourned the case. Today it is reported to us that the appellants are not willing to give an undertaking to

vacate the promises within a stipulated period and it is also further stated that it is their stand that they are not in arrears of rent for the purpose of

the case on hand, we do not consider it necessary for us to determine the arrears. We keep it open. This only shows the conduct of the appellants

which is not worthy of approval. They want to cling on to the property even though they are not entitled to remain in possession as tenants. For the

reasons stated above, this appeal is dismissed. No costs.