SHAH PHOOLCHAND LALCHAND Vs. PARVATHI BAI

JUDGEMENT

(1.) 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.

(2.) The appellants are a partnership firm and are the tenants 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 unlawful subletting under the provision of Section 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and 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 subtenants. The trial Court held this ground established and passed a decree for eviction as sought by the respondent. The appellants 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 1973. 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 this decision the present appeal is directed.

(3.) 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 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 v. Shikharchand (1985) 1 SCR 268. In that case an eviction petition was filed by the respondent-landlord against the appellant a 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 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 Appellate Court, it would have been open to the respondent to amend the eviction petition and join the partners as respondents. In the aforesaid decision in Chhotelal Pyarelal's case (supra) 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 :