SAIFUDDIN HUSSAINIBHOY SIAMWALA Vs. BURMA CYCLE TRADING CO

JUDGEMENT

(1.) THE landlords are the petitioners before me. The petitioners filed an application under S. 10 (3) and S. 10 (2) (ii) (a) of the Madras Buildings (Lease and Rent control) Act against the respondent and another on the ground that they required the premises bona fide for their own use, occupation and business and that the respondent, without the consent of the petitioners, sub-let a portion of the premises to one Dhandapani and Co. , who was also impleaded in the lower courts. Before me, however, the question whether the respondent has sublet the premises has not been agitated and even the alleged sub-tenant has not been impleaded as a party to this petition. The respondent's contention was the petition is misconceived and denied that the petitioners are partners of the firm of "saleh brothers" which pleading was evoked because of the allegations in paragraph 5 of the petition that "the petitioners are carrying on the business under the name and style of Saleh Bros, at No. 6 Sembudos Street". The respondent also contended that the premises in question is not suitable to the hardware business admittedly carried on by the petitioners in Sembudos street. Incidentally the respondent also pleaded that the petitioner's requirement was not bona fide because they demanded a higher rent. One of the petitioners examined himself. He admitted in chief examination that the rent for the suit premises goes into the account of Saleh Bros. , of which the petitioners are partners and that all the petitioners shared the profits. He also said in cross-examination that it is a registered partnership, but added that only two names of the petitioners are found in the certificate of registration issued by the Registrar of Firms and the names of the petitioners 3 and 4 are not to be found in the said certificate. Several exhibits were filed, amongst which Ex. P. 4 (a) is an extract from the day book of the firm of Saleh Bros. showing that petitioners 3 and 4 also participated in the profits. No doubt the sale deed pertaining to the suit property is in favour of all the four petitioners. When the case came up for hearing on 6-12-1963 before the Rent Controller the allowed the petition. It does not appear from the record that the objection which is now pressed into service vehemently by the learned counsel for the respondent namely that Saleh Bros. of which the petitioners purport to be partners is not a registered firm of partnership, and therefore the proceeding instituted by them under the Madras Buildings (Lease and Rent control) Act for eviction being "a legal proceeding". cannot be so instituted by an unregistered partnership was not seriously raised.

(2.) IN the appellate Court, an application for stay of execution of the order of the rent Controller was filed. in the affidavit in support thereof the respondent raised the contention that the petitioners have admitted that they are carrying on business in partnership and the partnership not being registered, the petition is not sustainable under S. 69 (3) of the Indian Partnership Act. To this, a counter affidavit was filed by one of the petitioners wherein also there is an admission that all the four petitioners are interested in the business as such partners. In paragraph 5 of the counter affidavit filed by one of the petitioners Saifuddin hoosainibhoy on 28-1-1964, stated "as will be seen from the petition the application has been filed by all the four partners who are the landlords". The appellate authority, by its order dated 12-3-1964 called for findings on the following points.

(3.) IS the premises occupied by the first respondent in the petition suitable for the business of the landlord?