Rajeswari and another vs Sri Buvaneswari Cycle Mart

The landlords filed an application for eviction of the tenant, in RCOP. No.44 of 1992, before the Rent Controller, Erode Section 10(2)(i) and

14 of the Tamil Nadu Buildings (Lease and Rent Control) Act.

The tenant is described as M/s. Sri Bhuvaneswari Cycle Mart, represented by its Managing Partner Durairaj. While the R.C.O.P was pending,

the Managing partner Durairaj died on 4.7.1984. Therefore, an application was filed by the landlords/petitioners in 1.A. No.1538 if 1994, praying

that the name of the said Durai may be deleted and the present Managing Partner viz., S.Ramasasmy be substituted in the short and long cause

title. The application was opposes by the tenant. After hearing both the parties, the Rent Controller dismissed the application. The order of

dismissal was challenged by the landlords by preferring appeal against the same in RCA. No.lof 1996, which also met with the same fate rence, the

present civil revision petition.

In my opinion, the courts below have failed to understand the fundamental position of law. The petition is filed by the landlord for the eviction of

a tenant, which is a firm. In the petition, the tenant is described as M/s. Sri Buvaneswari Cycle Mart, a firm represented by its Managing Partner

P.S.R. Durairaj. The allegations in the eviction petition are to the effect that the property was leased out in favour of a firm and that the said firm is

the tenant. It is not the pleading that the Managing Partner is the tenant in his individual capacity. The petition was filed against the firm represented

by its Managing partner. The firm has to be represented by some person in a proceeding. In this case, it is the Managing Partner. The firm is

already on record as respondent/tenant. Since the named Managing Partner died, pending proceeding, an application has been filed to amend the

petition on long and short cause title to read that the firm is represented by a different person as Managing Partner.

Section 4 of the Partnership Act defines partnership. One of the essential requisite of a partnership is that there must be mutual agency between

the agreement that it must be carried on by all or any of the partners acting for all. A partner is an agent of the other partners. Further, it is a

creature of contract between the parties. The rights and liabilities of the parties to a partnership are enforceable by and against them individually.

Each partner is the agent of the firm and binds the firm by all his acts done on behalf of within the scope of business of the firm. The partnership

can be sued individually and also in the name of the partnership. These are the essentials of the partnership. Persons who have entered into

partnership with one another are called individually partners and collectively a firm and the name under which three business is carried on is called

firm-name. Now, the application is filed against the partnership in the firm name and against the partners collectively. There is admittedly a

Managing Partner, who in law is entitled to represent the firm. The proceeding is thus initiated against the firm and it is the Managing Partner, who

represents the firm in its proceeding. When the person, who is the Managing Partner dies in the meanwhile, his death does not bring about an end

to the tenancy or to the proceeding. The firm will continue to be in existence and continue to be a firm unless the agreement between the partner''s

otherwise. ''X'' has been representing the firm as the Managing Partner, when the petition was filed. He died pending proceeding. In his place ''Y''

would come in to represent the firm as its Managing Partner. Thus, it is a mere substitution of the name. A firm is not a legal entity but merely a

collective or compendious name for all partners.

The question of impleading parties would arises only if it is an individual, who is a tenant. Here, dissolution of the partnership had not taken place

nor it is so pleaded. That Ramasamy became the Managing Partner on the death of Durairaj is also not disputed. Therefore, in law, but does not

bring about an end to the partnership or the tenancy. Since the firm is the tenant and it is a collective name for the partners instead of Durairaj

representing the same, for the purpose of proceeding, it has to be represented by Remasamy. Therefore, it is not a case where the question of

impleading of a legal representative on the death of a party arises. Section 27 of the Tamil Nadu Buildings (Lease and Rent Control) Act

(hereinafter referred to as the Act) would come into play only if it is a case of death of a tenant or death of the landlord. Here, there is no death of

the tenant. The tenant here is a firm. The only thing is that a person, who was representing the tenant viz., the firm as its Managing Partner had died.

For the purpose of continuing the proceeding , somebody has to be brought on record to represent the firm on the death of a person, who was

then at the time when the proceeding was initiated as the Managing Partner represented the firm. The courts below have thus misunderstood the

legal aspect involved in this case. In this connection, it will be necessary to refer to a ruling on this point.

The Andhra Pradesh High Court has held in the decision reported in M/s.Godavari Rice Mill Stores v. Gopala Krishna, 1978 (II) ALT 451 as

follows:-

The suit does not abate on the death of the managing Partner. A partner by virtue of Section 19 of the Partnership Act and much so, a managing

partner, can represent such a firm in the suit. Therefore, when he dies, the new Managing Partner can be brought on record as the Managing

Partner representing the plaintiff firm. The new Managing Partner is not merely a partner but also the Managing Partner of the firm who manages

the business and affairs of the firm. Therefore, by virtue of Section 19 of the Partnership Act, he has the implied authority to institute the suit. The

provisions of Rule 1, Order 30, CPC will have to be read in the light of section 19 of the Partnership Act

Section 19 of the Partnership Act, reads as follows:-

Subject to the provisions of section 22, the act of a partner which is done to carry on, in the usual way, business of the kind carried on by the firm

binds the firm.

The authority of a partner to bind the firm conferred by this section is called his ''implied authority.

Order 30, Rule 1, CPC provides for suite by or against firms and persons carrying on business in names other than their own. The firm is not a

juristic person. It is only a compendious name for the collection of the individuals, who are members of the firm. The position of law is clear that

where the suit is brought by or against a firm, in its firm name, the addition of such words as through,'''' represented by '' '' as partner or manager

would nor alter its character Mohammed Ali v. Abraham George, 1953 Tr. Co.163.

Order 30, Rule 4 of the Code reads as follows:-

Notwithstanding anything contained in section 45 of the Indian Contract Act, 1872, where two or more person may sue or be sued in the name

of a firm under the foregoing provisions and any of such person dies, whether before the institution or during the pendency of any suit, it shall not

be necessary to join the legal representative of the deceased as a party to the suit.

The effect of the Rule is that where a suit is brought against a firm in the firm name, it is not necessary to join the Legal Representative of the

deceased partner.

Therefore, this is a case, where it is obvious that the landlord has filed an application for eviction of the tenant. The tenant is a firm. At the time

when the proceeding was initiated it was represented by one Durai Raj as Managing Partner. Subsequently, the said Durai Raj died and the person

who succeeded Durai Raj as Managing Partner is now sought to be brought on record as the Managing Partner, representing the firm. Therefore, it

is not a case, where there is death of an individual, where alone, it is necessary to bring the legal representative on record. Here, what remains to

be done is only to bring on record, the name of the person, who at present is representing the firm as the Managing Partner in the place of the

person, during whose Management as Managing Partner, the proceeding was initiated.

The courts below have held that it being a self contained Act, the provisions of CPC is not applicable. There is also no parallel provision like

Order 6, Rule 17. In N.K. Segu Abdul Khadir Hadjiar Vs. A.K. Murthy, , this Court has held that though the provisions of CPC were not made

available to proceedings under the Act, in the absence of Rules nevertheless the principles of the same should be applied. Therefore, the provision

of CPC is not applicable mutatis mutandis. But, yet the effect of the provisions of CPC can be applied. For we find that certain provisions of CPC

are held to be applicable. Order 23, Rule 3 is made applicable. Though Order 41, Rule 22, CPC has not been made specifically applicable to

proceedings under the Act, the principle underlying that provision has been extended to the hearing of appeals and revisions under the Act, as we

see from Kannappa Nadar v. Krishnaswami Pillai, 1981 (I) MLJ (SN) 18.

It is also to be pointed out that u/s 18 of the Act, it is provided that every order made under sections 10, 14, 15, 16 and 17 and every order

passed on appeal u/s 23 or in revision u/s 25 shall be executed by the Controller, as if such order is an order of a Civil Court and for this purpose,

the Controller shall have all the powers of a civil Court. As I have already pointed pout, it has been held in the decision reported in Kannappa

Nadar v. Krishnaswami Pillai, 1981 (1) MLJ (SN) 18 that though the entire procedure applicable to civil courts cannot be applied to those

authorities, yet the Rules of justice, equity and good conscience shall be invoked to relieve difficulties in a statute. The provisions of CPC are made

applicable to the revision proceedings and petition filed under Order 41, Rule 27 to receive document as additional evidence is held to be

maintainable. Therefore, the result is that when there is no exclusion and in the absence of specific provision, for the purpose of giving effect to

principles of natural justice, equity and good conscience, the provisions of CPC or effect of the same can be applied to relieve the parties of the

defect. I have already indicated that certain provisions of CPC are specifically made applicable.

Here in this case, we find that though u/s 27 provision is made for bringing a legal representative of a tenant on his death, there is no provision

to cover the contingency of their nature arising in those cases. There is also no specific provision corresponding to like Order 6, Rule 17 or Order

1, Rule 10 or any Section akin to section 151.

It is to be pointed out that the person, who is now sought to be brought on record in the place of Durairaj cannot be, equated to a legal

representative in the sense, we understand of heirs, At best, he is only a partner. Therefore, on the death of Durairaj, the person, who is now

sought to be brought on record in his place cannot be filled u/s 27 as a legal representative. At the same time, a firm cannot be sued unless through

a representative. Since there is no equivalent provision we have to only import the principles of general law into it, to enable the parties prosecute

further the proceeding. When the Rent Controller had got jurisdiction to take a case on file, on the death of a party, he has equally the jurisdiction

and right to order such reliefs. This is not a case where section 27 of the Act would squarely apply. As I pointed out already, there is no specific

provision like Order 6, Rule 17. For want of specific provision, the parties should not be allowed to suffer.

Moreover, what is now sought by the landlords/petitioners is only to bring on record a person to represent the firm, who is now its Managing

Partner now. The firm is already on record. On the death of the Managing Partner of the firm, the firm had not been dissolved. Therefore, for the

purpose of completing the formality of proceeding, with a view to enable somebody to represent the firm in the proceeding, it is just and necessary

that the relief asked for ought to be granted. Rightly, a prayer for amendment has been asked for. It is only formal in nature. For in the

circumstances, the necessity to file an application u/s 27 will not arise. For the landlords are not proceeding against the heirs or Legal

Representative of the deceased Managing Partner. They only want to bring on record the person, who succeeded the said Durairaj as Managing

Partner and as such as a person entitled to represent the firm as the Managing Partner. What all has to be done in this case is that the name of the

person has to be substituted. This substitution can be effected only by way of amendment.

Since there is no specific provision, in order to give effect to the rights of the parties, the petition for amendment ought to have been allowed by

the Rent Controller. The Rent Controller as well as the appellate authority unnecessarily took a very narrow view of the matter. For if the petition is

to be rejected on the ground that there is no provision, then what to happen? What is the remedy of the petitioner? should they be allowed to suffer

for want of necessary or specific provision in a statute? When certain other provisions of the CPC are made applicable, there is no harm in

applying the general law to give effect to the rights of the parties and bring about justice. Otherwise, the entire act would become illusory. Hence,

the order passed by the courts below cannot be sustained.

In the result, this civil revision petition is allowed, but in the circumstances, there is no order as to cost. The petitions filed by the petitioner are

allowed and the petitioners/landlords are permitted to carry out necessary amendment by was of substitution to bring on record the name of the

person, who is now representing the tenant firm as its Managing Partner. In the circumstances, there is no order as to cost. Consequently,

CMP.No.15380 of 1998 shall stand dismissed.