RAJARAJAN Vs. J MARIYA STELLA

JUDGEMENT

(1.) THE only question that arises for consideration in this appeal is as to whether the respondents should be restrained from executing the decree against the appellant passed in RCOP. No. 51 of 1981 on the file of the Rent Controller (District Munsif), Mayiladuthurai, confirmed by the Appellate Authority in RCA. No. 4 of 1993 and further confirmed by this Court in CRP. No. 3220 of 1984 on the ground that the said decree is inexecutable and unenforceable as having been passed without jurisdiction. THE facts necessary to decide the question are no more in dispute. THE suit property is comprised in T.S. Nos. 1127 and 1128 situate within the municipal limits of Mayiladuthurai measuring about 8840 sq. ft. having three small shops in 200 sq. ft. THE father of the respondents was the owner and the landlord of the premises. It was let out to the partnership firm known as "Rajagopala Vandaiyar and Sons" represented by its Managing Partner Rajagopala Vandaiyar. One Joseph Nadar filed the aforesaid RCOP. No. 51 of 1981 against the aforesaid partnership firm represented by its Managing Partner Rajagopala Vandaiyar as first defendant and Rajagopala Vandaiyar as second defendant. During the pendency of the proceeding, Joseph Nadar expired and therefore, respondents 1 to 3 herein were brought on record as legal representatives of the deceased landlord. THEre was no objection whatsoever raised at any stage of proceedings that all the partners of the Rajagopala Vandaiyar and Sons were necessary parties to the eviction proceedings and that, in the absence of them, the proceeding was not maintainable. It may be pointed out here that the plaintiffs, in the present suit O.S. No. 92 of 1992 have sought for a declaration that the decree for eviction passed in the aforesaid proceeding is null and void and not binding on these plaintiffs who were not parties in these proceedings. THE plaintiffs and other partners were not made parties to the eviction proceedings. THErefore, the decree passed in the eviction proceedings, apart from being null and void did not bind them. THE contention so raised cannot be said to be any more res integra as in our view, it is covered by a decision of the Supreme Court in Chhotelal Pyarelal v. Shikharchand (A.I.R. 1984 S.C. 1570). In the aforesaid case also the partners were not made parties. This contention was raised only in the High Court and it was held by the Division Bench of the High Court that the order of eviction was maintainable against a partnership firm without joining any of the partners, constituting the partnership firm, as respondents to application. THE Supreme Court agreed with the view of the Division Bench and it was held as follows:-

(2.) IN the instant case, until the matter was concluded and the decree for eviction became final, no contention was raised regarding non-making of the partners as parties to the eviction proceedings. It is only in an independent suit such a contention has been raised challenging the decree for eviction passed by the competent court. It is not possible to hold that the District Munsif functioning as Rent Controller was incompetent to pass a decree for eviction. The only question is whether the decree for eviction passed is binding upon the plaintiffs in the present suit. We have at the beginning itself, pointed out that the father of the plaintiffs was a party to the eviction proceedings in his individual capacity as second respondent in the Rent Control proceedings. He was bound by the decree passed for eviction. The plaintiffs apart from being partners, are also the heirs of the deceased second Respondent. As such, they are also bound by the decree that was binding upon their father. Hence, we are of the view that apart from the fact that such a contention cannot be entertained in an independent suit as it was open to the Respondents to raise it in the eviction proceedings and in that event it was open to the applicant in the eviction proceedings to amend the petition as has been held by the Supreme Court in a similar case in Shah Phoolchandlalchand v. Parvathi Sai (1989 I. S.C.C. 556). The relevant portion of the judgment is as follows:-

(3.) FOR the reasons stated above, this appeal is dismissed. No costs.