Ramakrishna and Bros. a partnership firm, (sic) one of its partners, M. Paramasivam and others vs T.P.N. Manickavalli

K.M. Natarajan, J.—The unsuccessful tenant before hot the forums has preferred this revision that lending the order of eviction passed against him. The facts which are necessary for the disposal of this revision can be briefly staled as follows: For the sake of convenience, we will adopt the array of parties before the Rent Controller, in this revision. The petitioner, who is the respondent in this revision is the landlady, and she has filed the petition under Ss. 10(2) (i) and 14 (1)(b) of the Tamil Nadu Buildings (Lease and Rent Control Act. According to the petitioner, shepur chased the petition mentioned property by 29.9.1975. The respondent has been occupying the premises for carrying on business on a monthly rent of Rs.I55. The rent is to be paid on the 5th of the next month. The respondent attorned the oral tenancy in favorer of the petitioner. Since the respondent committed wilful default in payment of rent, the petition R.C.O.P. 84 of 1978 was filed audit was allowed. As against that, the respondent filed CM.A. 23 of 1981 before the Appellate Authority. While the CMA was pending the respondent failed to pay arrears of rent commencing from May 1982 to the end of June 1983, for a period of 13 months to the tune of Rs. 2015. Hence, he has committed wilful default in payment of rent. Further the petitioner requires the premises for demolition and reconstruction in order to augment her income. She obtained necessary licence and sanction from the Municipality. She also gave the necessary statutory undertaking that she would demolish the building within one month after getting vacant possession and commence construction within three months thereafter.

The said petition is resisted by the respondent, who is the revision petitioner herein. It is contended in the counter affidavit that the rent for the building is only Rs. 80. It is further stated that another sum of Rs. 75 is to be paid for amenities and furniture since the petitioner failed to provide necessary furniture and other amenities, she is entitled only to the rent for the building at Rs. 80. It is further stated that the rent is being paid once in three or six months. There was no agreement that the rent is to be paid on or before the 5th of the next month. He denied that he committed wilful default in payment of rent. According to him, the petitioner refused to receive the rent and hence he sent a sum of Rs. 2015 by way of demand draft and called upon her to specify the name of a Bank for remittance. But, the petitioner returned the same and also sent a reply with false allegations. Hence, he filed a petition under S. 8(5) of the said Act in R.C.O.P. 135 of 1983 and deposited the rent. As regards the requirement of the premises for demolition and reconstruction, it is contended that three walls of the building are common and hence, it cannot be demolished. The building is in a sound condition and does not require any demolition. The respondent has also effected repairs to the building spending a sum of Rs. 15,000 in 1965. The petitioner owns a number of houses and buildings at Tuticorin town, that she and her husband have been doing export business and getting sufficient income and that there was no necessity for her to augment her income. Hence, he prayed for dismissal of the petition

The Rent Controller allowed the petition on both the grounds. He was unsuccessful before the Appellate Authority and hence this revision.

Learned counsel for the revisions petitioner has raised a preliminary objection that the eviction petition filed by the landlord against the firm represented by one of its partners is not maintainable and that the eviction petition is to be dismissed solely on this ground. It was also submitted that in any event if the Court is inclined to implead the parties, the matter may be remitted back to the Rent Controller for fresh disposal giving opportunity to the newly added parties to file their counter and resist the claim of the landlord. To get over the same, the respondent landlord has filed the petition in C.M.P. 5525 and 5524 of 1988 to implead the other partners as respondents 2 to 4 in C.R.P. 3482 of 1987 and R.C.O.P. 127 of 1983 which is the subject matter of the CR.P. It is contended by the learned counsel for the revision-petitioner that the present application for imp leading the partners is filed at the belated stage and that the landlord should not be permitted to implead them at this stage as there was no opportunity to cross-examine the witnesses by them.

The attention of this Court was drawn to a decision of the Supreme Court in Chhotelal Pyarelal, The Partnership Firm and Others Vs. Shikarchand, where it was held as follows-

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. The firm is merely a compendious name for the partners constituting it and it is only by virtue of the provision of O. 30, of the C.P.C. that a firm can sue and be sued in its own name without the partners being impleaded eo nomine. Therefore the firm could not be sued in the firm name by the landlord in so far as the application for eviction under the Rent Control Order was concerned. However, this cannot by itself result in the dismissal of the application filed for eviction of the firm by the landlord as if would be merely a case of misdescription. Such misdescription can be corrected at any stage of the proceedings as there can be no doubt that the partners of the firm were before the Court though in a wrong name. Consequently, the landlord was allowed to amend the cause title of the original eviction application and to add the names of the partners of the firm along with the firm.

It is clear from the above decision that the petition to implead parties can be allowed, as it is only a misdescription of the respondents to the original petition and that the main original petition, which is the subject matter of this revision, need not be dismissed on the ground of non-impleading of other partners as respondents.

But, the real controversy that arises as regards this point is whether the matter is to be remitted back to the trial court to give an opportunity to the newly added parties or the revision has to be disposed of here itself after impleading the parties, on merits, on the available records. In the above quoted Supreme Court case, the maintainability of the eviction petition against the firm alone, without impleading the other partners, was raised as a preliminary objection and the said question came up for consideration before the Supreme Court. In the circumstances, the Supreme Court allowed the application to amend the cause title of the original petition by impleading the partners of the firm and remitted the case back to the Rent Controller so that he may dispose it. of on merits. It is observed by their Lordships of the Supreme Court that the newly added respondents will file their written statement in answer to the application for eviction within a further period of four weeks thereafter and the Rent Controller will then proceed to dispose of the application for eviction as expeditiously as possible. The learned counsel for the revision petitioner drew my attention to another decision of this Court reported in M/s N.S. Doshi and Co. v. P. Ganesan 101 L.W. 433 = 1987 T.L.N.J. 305. where Sivasubramaniam, J. in similar circumstances allowed the application to implead parties and permitted the respondent-landlord to amend the cause title of the original petition and all other connected proceedings by adding the names of the partners of the first respondent firm as respiration dents along with the firm, and without gourd into the merits of the case, remitted back to the Appellate Authority after giving liberty ''to the Appellate Authority to consider the decadence afresh and dispose of the matter on merits. Learned counsel for the revision petitioner relied on these decisions and requested this Court to remit back the matter either to the Appellate Authority or to the Rent Controller to give on opportunity to the newly added parties to file their oblations, give opportunity to adduce fresh evidence if necessary and dispose of the same on merits.

On the other hand, the learned counsel for the respondent-landlord drew the attention of this Court to a decision reported in Yousuf Sait & Sons v. Shafeeq Ahamed 100 L.W. 278 where Chandurkar, C.J. relying on the decision of the Supreme Court in Chhotelal Pyarelal, The Partnership Firm and Others Vs. Shikarchand, ., allowed the petition filed by the landlord for joining the partners of the tenant firm as respondents 2 to 5, and after observing-

However, what was necessary to be done form proper adjudication was that the partners were required to be joined as respondents to the man petition for eviction.

allowed the revision filed by the tenant and set aside the order of eviction after considering the merits of the case. Learned counsel for the revision petitioner submitted that since the learned Judge came to the conclusion that even on the evidence adduced on the side of the landlord no case was being made out for eviction, the learned Judge without remitting the case back for giving opportunity to the newly added tenants, dismissed she petition for eviction and allowed the revision and in the circumstances it was not remitted back and the said decision is not helpful. I find much force in the said contention of the learned counsel for the revision petitioner In the said case since the learned Judge came to the conclusion that the landlord has (sic) made out any case regarding eviction, the question of remitting back the case for the purpose of giving opportunity to the newly added tenants to nut forth their contentions did not arise. Learned counsel for the respondent relied on the unreported decision of Srinivasan, J. dated 5-1-1988 in M/s. Amaravathi Textiles, Madurai and others v. M.P. Arunachalam C.R.P. 1898 of 1987. wherein it was observed -

In the present case no objection was raised by tenant before the Rent Controller that the petition was not maintainable In fact, the R.C.O.P. was disposed of on 17-4-1586 long after the judgment of the Supreme Court was reported. The tenant could have taken objection as to the maintainability of the application without the partners of the firm having been impleaded in the petition for eviction. If they had taken that objection at that stage, the landlord would have impleaded them straightway and proceeded with the matter. Not having raised that objection either before the Rent Controller or before Appellate Authority, it will not be open for the tenant to contend that the matter should go back for fresh disposal. It is not the case of the tenant that the partner who represented the firm before Rent Controller or the Appellate Authority had no opportunity to do so, and that he did not conduct the case in a proper manner. It cannot be contended by the revision petitioner that any defence on the merits of the case which could have been taken before the Rent Controller was omitted to be taken. In the circumstances, the impleading of the partners at this stage of the revision is only a formality in order to cure the technical defect. As the Supreme Court has clearly pointed out that it is only a misdescription of the parties and that the partners are already before court, it must be taken that at the partners were before the Rent Controller as well as the Appellate Authority though under the compendious name of Messrs. Amaravathi Textiles.

After observing thus, the learned Judge proceeded with the case on merits and ultimately dismissed the revision.

Applying the ratio laid down in the above said decisions to the facts of the instant case, it is seen that the landlady had already filed an application, R.C.O.P. 84 of 1978, for eviction of the tenant firm on the ground of wilful default and got an order of eviction from the Rent Controller. One of" the proposed respondents, namely, Rama-Krishna who has sworn to the counter the davit, had filled an appeal in C.M.A. 23 of 1981, and the said order of eviction was set aside, on the ground that the partners of the firm were not brought on record. The present R.C.O.P. 127 of 1983 was filed by the landlady against Messrs Ramakrishnan and Bros, represented by one of the partners, M. Paramasivam, for eviction, both on the ground of wilful default and on the ground of demolition, without impleading the proposed parties, namely, respondents, 2 to 4. It is the case of the proposed respondents, who are the other partner of the tenant firm (revision petitioners herein) that the landlady has deliberately and wantonly omitted to implead them in spite of the earlier proceedings. It was also submitted that the prior proceedings were conducted only by the proposed party, namely, Ramakrishnan. one of the partners. But, the present proceedings were initiated against the partner Paramasivam who was not a party to the earlier proceedings and as such he did not and could not have comprehensive knowledge of all the facts of the present proceedings wherein some essential and vital facts were not brought to the notice of the lower courts. Hence, the proposed parties, namely, the other partners, submitted that if they are impleaded, the matter should be remitted back to the Rent Controller for fresh disposal, with a direction to give opportunity to them to file their counter and let in documentary and oral evidence in support of their contentions. In the circumstances, the unreported decision rendered by Srinivasan, J. in M/s. I Amaravathi Textile, Madurai v. Arimachalan, C R.P. 1898 of 1987. is not helpful to the case of the landlady, and only the lain laid down by Sivasubramaniam in V. S. Doshi and Co. v. Ganesan 101 L.W 433 =1987 T.L N.J. 305., and the ratio of the decision of the Supreme Court reported in M/s. Chhotelal Pyarelal v. Shaikharchand A.l.R. 1934 S.C. 1570. can be applied. Accordingly CM.P. 5523 and 5524 of 1988 for impleading the other partners, namely, the proposed respondents 2 to 4 are ordered and the landlady (respondent in this CR.P.) is permitted to amend the cause title of the original petition and all other connected proceedings by adding all the partners of the ten Ant firm along with the firm of Ramakrishna and Bros. As the revision is now allowed only on the question of maintainability of the eviction petition, I have not gone into the merits of the case and they are left open to be decided after the proposed parties are impleaded. In the result, the revision is allowed and the matter is remitted back for fresh disposal to the Appellate Authority, who is directed to give an opportunity to the newly added respondents to file counter statements in answer to the application for eviction and to give opportunity to them to adduce necessary evidence and thereafter consider the entire documentary and oral evidence afresh and dispose of the matter on merits as expeditiously as possible, in any event, within three months from the date of receipt of this order. However, in the circumstances of the case, there will be no order as to costs in this revision.