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PETITIONER: SHAH PHOOLCHAND LALCHAND

       Vs.

RESPONDENT: PARVATHI BAI

DATE OF JUDGMENT02/02/1989

BENCH: KANIA, M.H. BENCH: KANIA, M.H. SHARMA, L.M. (J)

CITATION:  1989 AIR  865            1989 SCR  (1) 417  1989 SCC  (1) 556        JT 1989 (1)   224  1989 SCALE  (1)243

ACT:     Constitution  of  India, 1950:  Article  136--Contention that  partners  of a firm not made parties  by  landlord  in eviction  proceeding-Such  a  contention--Whether  could  be raised at special leave stage.     Tamil Nadu Buildings (Lease and Rent Control) Act, 1960: Section 10(2)(ii)(a)--Unlawful sub-letting--Eviction on that ground-Whether  partners of the firm are to be made  parties to such eviction petition.

HEADNOTE:     The appellants are tenants of the premises belonging  to the  Respondent,  and have been carrying on  business  as  a partnership firm in the said premises. The respondent  filed an eviction petition against the appellant firm and  another firm,  on the ground that the appellant had  unlawfully  and without  the consent of the Respondent sub-let the  premises to  the  other  firm. The Trial Court passed  a  decree  for eviction,  against which the appellants preferred an  appeal to  the  Appellate Authority. The Appellate  Authority  dis- missed  the appeal and upheld the finding of  unlawful  sub- letting by the appellants. The appellants preferred a  Civil Revision  petition  before the High Court,  which  was  also dismissed.  The present appeal by special leave  is  against the High Court’s decision.     On behalf of the appellants, it was contended that since the  eviction  petition had been filed without  joining  the partners  of  the other firm (the sub-tenant)  the  eviction petition was not maintainable at all. Dismissing the appeal,     HELD:  1. The objection that the eviction  petition  was filed  against the appellants-firm and the other  firm,  was not maintainable as it had been filed without joining any of the partners of the said other firm as respondents or  serv- ing  them as partners, had not been raised at all  till  the stage of special leave and it is not open to the  appellants to raise such an objection at a very late stage and  thereby delay matters for a number of years. [419F; 420C] 418      Chhotelal Pyarelal, the partnership firm and others  v. Shikharchand, [1985] 1 S.C.R. 268, distinguished.

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   2.  There  is evidence to show that the other  firm  was carrying on business at the said premises and that the  said firm carried on business in the said premises even for  some time during which the appellants-firm had ceased to carry on the business there. Moreover, although a notice was given by the  respondent  to  the appellants and the  other  firm  to produce their income-tax returns, assessment orders as  well as account books and ledgers for the relevant period,  these were  not  produced. It was open to the  Trial  Court,  from these circumstances, to come to the conclusion that had  the account  books  and ledgers been produced, they  would  have shown  that  rent was received by the  appellants  from  the other  firm which would justify the finding  of  subletting. [420D-F]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1347  of 1981     From  the  judgment and Order dated 24.1.  1981  of  the Madras High Court in C.R.P. No. 44 of 1981.     B.N.  Nayar, T.V.S.N. Chaff, K. Srinivasan,  C.H.  Badri Nath,  R.K.  Gupta and Ms. Sudha Srivastava for  the  Appel- lants. U.R. Lalit and Ambrish Kumar for the Respondent. The Judgment of the Court was delivered by     KANIA, J. This is an appeal filed by Special Leave under Article  136 of the Constitution by the appellants  who  are the tenants against the respondent-landlady.     The  appellants are a partnership firm and are the  ten- ants  of premises situate at No. 6 Kasi Chetty Street,  G.T. Madras.  They carry on business there. The respondent  filed an  eviction  petition being H.R.C. No. 641 of 1975  in  the Court of Small Causes, Madras against the appellants and one other partnership firm, carrying on business in the name and style  of  M/s. Adeshwar Glass Mart on the ground  that  the appellants  had  unlawfully and without the consent  of  the respondent  sublet  the said shop let out to the  said  M/s. Adeshwar Glass Mart and were liable to be evicted for unlaw- ful  subletting under the provision of Section  10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and 419 Rent  Control)  Act, 1960 (hereinafter referred to  as  "the said  Rent Act"). M/s. Adeshwar Glass Mart were also  joined by  the  respondent herein as respondents  in  the  eviction petition on the ground that they were unlawful  sub-tenants. The  Trial Court held this ground established and  passed  a decree for eviction as sought by the respondent. The  appel- lants  preferred  an  appeal against this  decision  to  the Appellate  Authority under Section 23 of the said Rent  Act, being  the Court of Small Causes at Madras. The said  appeal was numbered as H.R.A. 156 of 1979. The Appellate  Authority dismissed the said appeal upholding the finding of  unlawful subletting by the appellants. The appellants then  preferred a Civil Revision Petition being C.R.P. No. 44 of 1981 in the High  Court  of Judicature at Madras against  the  aforesaid decision.  This Revision Petition was dismissed by the  then learned  Chief  Justice  of the Madras  High  Court.  It  is against the decision the present appeal is directed.     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 appellants  firm and  one  other partnership firm, M/s. Adeshwar  Glass  Mart without  joining  any of the partners of the said  firms  as

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respondents  or  serving  them as partners  and  hence,  the eviction  petition  was not maintainable at all.  He  placed strong reliances on the decision of this Court in  Chhotelal Pyarelal,  the partnership firm and others v.  Shikharchand, [1985]  1 S.C.R. 268. In that case an eviction petition  was filed  by  the respondent-landlord against the  appellant  a partnership  firm-under  clause 13(3)(iv) 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  re- spondents.  It  was held by this Court that it  is  only  by virtue  of the provisions of order 30 of 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 Code of Civil Procedure  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  at  this stage  at all. This contention is not one which  would  have been  fatal  to the eviction petition. Had  this  contention been  raised in the Trial Court or even in the first  Appel- late  Court,  it would have been open to the  respondent  to amend  the  eviction petition and join the partners  as  re- spondents. In the aforesaid decision in Chhotelal Pyarelal’s case,  relied upon by Mr. Nayar the objection to  the  main- tainability of the 420 petition  was raised at the earliest stage and  was  wrongly negatived  by the Trial Court. In fact, this Court  observed as follows:               "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 misde-               scription 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."     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.     It  was  next submitted by Mr. Nayar that there  was  no evidence  in  the case to come to the  conclusion  that  the appellants had sublet the shop to M/s. Adeshwar Glass  Mart. In our view, there is no substance in this contention. There is evidence to show that M/s. Adeshwar Glass Mart was carry- ing  on  business  at the said premises and  that  firm  was carried on business in the said premises even for some  time during which the appellants-firm had ceased to carry on  the business there. Moreover, although a notice was given by the respondent to the appellants and M/s. Adeshwar Glass Mart to produce their income-tax returns, assessment orders as  well as account books and ledgers for the relevant period,  these were  not  produced. It was surely open to the  Trial  Court from these circumstances to come to the conclusion that  had the account books and ledgers been produced, they would have shown  that  rent was received by the appellants  from  M/s. Adeshwar  Glass  Mart  which would justify  the  finding  of subletting.  In these circumstances, this contention of  Mr. Nayar must fail.

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   Although  Mr.  Nayar  wanted us  to  undertake  detailed scrutiny  of the evidence and to reappreciate the  same,  we fail  to  see how we are called upon to do so in  an  appeal under Article 136 of the Constitution. In the result, the appeal fails and is dismissed with costs. G.N.                                            Appeal  dis- missed. 421