JHAMATMAL SONS Vs. FATIMA BI

JUDGEMENT

(1.) The respondents are decree-holders. They as owners of non-residential premises situate in the Civil Station, Bangalore, filed a petition for eviction in HRC 188 of 1969 in the. Court of the Prl Munsiff, Civil Station, Bangalore, against 'M/S Jhamatmal Sons' under S.21 Cl(1) sub-cl(h) of the Karnataka Housa Rent Control Act, Alleging that the respondent to the petition above-said is a tenant under them. The eviction petition was contested by Devi Bai, the widow of Jhamatmal. Jhamatmal admittedly died in the year 1964. The HRC petition was filed on 11th April, 1969. In the statement of objections filed on behalf of the firm she stated that they have been tenants since the year 1948, that they have been running business as photographers, that the said business is their only source of business, that Jhamatmal Sons is a family business, it was set up in the year 1948 and that the firm has an established business in photography. The petition was dismissed by the trial Court. The appeal filed by the landlords was also dismissed. Thereupon, the landlords filed a revision petition in CRP 2753/72 in this Court which was allowed on 17-8-1973 and eviction was ordered granting one year's time to the tenant to vacate. Thereafter, the decree-holders filed Execution No.584/74 after the expiry of the period of one year In the execution proceeding, the judgment-debtor filed objections on 23-8-1974. It was filed by Devi Bai. She stated that the judgment-debtor Jhamatmal Sons is a single proprietaryship firm, that it is not a registered firm, that the decree has been obtained against the firm without proper representation, that the sole proprietor of the firm 'Jhamatmal Sons' died long prior to the institution of the eviction proceedings, that no proceedings could have been brought in the name of the firm in the absence of all the legal representatives being made parties to the eviction proceedings and that therefore the decree is void in law. She also filed another statement of objections on 28-8-1974 to the effect that the Court had no jurisdiction to pass the decree of eviction in respect of a non-residential premises against the legal representatives after the death of the original tenant. The executing Court overruled the objections and directed the execution to proceed. The lower appellate Court has confirmed that order. Devi Bai has come up in second appeal. The appellant in this second appeal is described as 'M's Jhamatmal Sens, represented by Devi Bai".

(2.) The only point urged on behalf of the appellant in this appeal is that the sole proprietor of the film Jhamatmal Sons died in 1964 and since he was dead on the date of the eviction proceedings under the Rent Control Act, the order of eviction passed against the firm is a nullity. The objection statement filed by the judgment-debtor in the executing Court is to the effect that all the legal representatives of the sole proprietor Jhamatmal were not impleaded in the HRC proceedings and that therefore the order passed therein is void. It is contended by Mr. Narayanappa on behalf of the respondents that Devi Bai contested the eviction petition in the HRC proceedings in her capacity as the sole proprietrix of the firm, that therefore the firm M s Jhamatmal Sons was adequately represented in HRC proceedings and that it is therefore not open to her now to raise the contention in the execution proceeding that the order obtained against the firm is void. He has relied on the contents of the Vakalath filed by her in the HRC proceedings on 9-6-1969. In the body of the Vakalath she is described as the proprietor of the respondent-firm. Under the left thumb mark on the Vakalath, she is described as the "Proprietor 'M s Jhamatmal Sons'". Mr.Narayanappa also relied on the statement of DW.1 in the HRC proceeding in the course of his evidence. DW.1 was the only witness examined on behalf of the tenant in the HRC proceeding. He is one of the sons cf Jhamatmal. In cross-examination, he has stated as follows : " There is a partition deed. I can produce it. This Jhamtmal Sons is of proprietoryship shop viz after my father's death it was given to my mother. It is not true to say that all my brothers still joint." It is therefore clear that Devi Bai contested the eviction petition in the HRC proceedings as the sole proprietrix of Jhamatmal Sons, though it is not stated so in the objection statement filed by her in the HRC proceedings.

(3.) On behalf of the appellant, Shri Satyanarayana, relied on the decision of the learned single Judge in Rampratab Brijmohandas v. Gavrishankar Kashiram,. AIR, 1924 Bom. 109. In that case, the suit was filed against the firm Beharilal Bishambhar Das for recovery of certain monies due from Kashiram who was carrying on the business under that name. On the date of the suit Kashiram was dead and the plain tiffs were aware of the fact. When objection was taken on behalf of the defendants that Kashiram was dead and only Gavrishankar can be sued, the plaintiffs prayed for and obtained an order from the Court for amendment of the plaint and substituted Gavrishankar's name in the place, of the firm. It was held the the suit against the firm was in reality a suit against a dead man and that the defect could not be cured by the amendment that was made, that Gavrishankar could not be brought on record except as a legal representatives of Kashiram, that he was in fact brought on record as the son and heir of Kashiram and that his liability would be in his character as legal representative of his father. As against this, Mr. Narayanappa relied on the decision of the Division Bbnch of the same Court in Motilal Jasraj v. Chandmal Hindumal, AIR 1924 Bom. 155. The defendant in that case- was the firm of 'Manmal Chandmal'. Chandmal had died prior to the date of the suit. An application to bring his heirs on record was made thereafter and an order was made directing two persons Manmal Hindumal and Kesarimal Brijlal be brought on the record. It is held that though not in form, but in substance, the plaintiff sued the firth of 'Manmal Chandmal', that if the defendant had been simply described as 'the firm of Manmal Chandmal' without mentioning the names of the owners or partners of the firm the description would have been sufficient, having regard to the provisions of Or.30 CPC, that the further description of the defendant Chandmal Hindumal as 'the manager and owner of the firm' may be treated as a mere surplusage, that the suit would have been good if the firm had been sued without any further description and that it was really unnecessary to have the heirs of Chandmal on the record as such. It was therefore held that the suit could have been treated as having been filed against the firm of 'Manmal Chandmal'