ASHA IRON TRADERS Vs. AHMED BHAI

JUDGEMENT

(1.) THIS is an appeal against the judgment of the learned Additional District Judge No. 1, Jodhpur dated November 5, 1980 whereby the learned lower court has decreed the suit of the plaintiff-respondents against the defendant-appellants for eviction as also for the payment of the arrears of rent and mesne profits. The defendants have been ordered to hand over the vacant possession of the suit premises to the plaintiffs within two months from the date of the decree.

(2.) A few facts necessary to be noticed for the disposal of this appeal briefly stated are that the suit premises fully described in para 2 of the plaint belonged to Smt. Gopi Lal out these premises to defendant No. l Pukhraj on a rent of Rs. 200/- per month. The tenancy started from June 1, 1973. It is alleged that these premises were later on sold by Smt. Gopi to the plaintiffs for a sum of Rs. 20,000/- through a registered sale deed dated 12. 11. 1974. Smt. Gopi sent a registered notice of sale to Pukhraj on 16. 11. 1974 but that was received back as refused. The plaintiffs determined the tenancy of defendant No. 1 Pukhraj and gave him notice to hand over the vacant possession of the suit premises but he has failed to do so and therefore, the plaintiffs filed the suit in the court of learned District Judge, Jodhpur pleading, inter alia, that the rent is due from the defendants from 12. 11. 1974. and that the defendant No. l Pukhraj has sub-let the suit premises to defens No. 2 and 3rd without permission of the plaintiffs. The plaintiffs required the suit premises reasonably and bonafide for their own use and occupation. It was also averred that the plaintiffs will be put to greater inconvenience then the defendants if the vacation of the suit premises is not decreed against the defendants. The plaintiffs claimed a sum of Rs. 7200/-from the defendants as arrears of rent and Rs. 630/- as interest thereon and further claimed that for use and occupation, they should be allowed mesne profits at the rate of Rs 400/- per month. The suit was filed on 9. 11. 1977. Defendant No. 1 and Defendants No. 2 and 3 filed their separate written statements pleading, inter-alia, that the suit premises were taken on rent by defendant No. 1 Pukhraj as a partner of the firm M/s Asha Iron Traders and it was never taken on rent in his personal capacity. It was submitted that the premises were earlier in the tenancy of M/s Iron Industrial Corporation of which Mithalal Prajapat was a partner and when that firm was closed, its sheds were sold to the defendants firm M/s Asha Iron Traders for a sum of Rs. 5,000/ -. It was further submitted that Rs. 4,800/- were paid to the plaintiffs on behalf of defendant No. 2 on 23. 3. 1973 and 21. 5. 1973 through two separate cheques bearing No. 00155 and 001554 drawn on the Central Bank of India, Jodhpur and in this manner, two years' rent was paid in advance. It is alleged that defendant No. l Pukhraj retired from this Firm M/s Asha Iron Traders on 30. 6. 1974 and in his place, defendant No. 3 Ghanshyamdas was inducted as a partner whereas the other two partners Smt. Asha Phophalia and Smt. Sajani Devi Mohata continued the partnership. On 10. 12. 1975, one of the partners viz. , Smt. Sajani Devi Mohata died and her son Ashok Kumar was admitted to the partnership. The defendants denied that Smt. Gopi has sold this shop to the plaintiffs because they never received any notice in respect thereof and, there fore, according to them the plaintiffs were not entitled to determine their tenancy. It was also averred that the rent from 1. 6. 1974 to 3. 5. 1975 was paid in advance and thereafter, the rent for the months of June and July, 1975 was through money order but it was refused. Reasonable and bonafide necessity pleaded by the plaintiffs was challenged. The plaintiffs' assertion that the plaintffis would be put to greater hardship if the suit premises is not decreed for eviction was also challenged. The defendants have submitted that they are not defaulters. The defendant No. 1 Pukhraj has submitted that he retired from the partner ship of M/s Asha Iron Traders on 30. 6. 1974 and, therefore, no notice was ever received by him regarding the sale of the property by Smt. Gopi. He has further submitted that the partnership continued even after his retirement from the partnership firm M/s Asha Iron Traders.

(3.) P. W. 3 Meghraj who has attested Ex. 7 (rent note) has also been examined. He has stated that the rent note Ex. 7 was executed by defendant No. 1 Pukhraj on behalf of M/s Asha Iron Traders as its partner. According to him the rent note Ex. 7 bears the signatures of Pukhraj at place C to D. It is true that P. W. 5 Mangilal who is the husband of Shri. Gopi has stated before the learned lower court that defendant No. 1 Pukhraj alone has taken the suit premises on rent in his personal capacity but that contention does not hold good in the light of his over-whelming evidence. Simply because defendant No. 1 Pukhraj has used the word "main" or "mere" to describe his capacity in the rent not after his initial description will not go to prove that this "main" or "mere" relates to his personal capacity and it does not state to his capacity as a partner of the firm M/s Asha Iron Traders. I, therefore , disagree with the finding of the learned lower court that the suit premises were taken on rent by defendant No. 1 Pukhraj from Smt. Gopi in his personal capacity. Actually, defendant No. 1 Pukhraj has taken the suit premises on rent as a partner of the firm M/s Asha Iron Traders. Even if he has retired from the firm M/s Asha Iron Traders, the other partners carry on the business of that firm and, therefore, it is not a case of subletting by defendant No. 1 to defendants No. 2 and 3. The partnership firm is merely a compendious name for the partners constituting it and it is only by virtue of the provisions of 0. 30 of the C. P. C. that a firm can sue and be sued in its own name without the partners being impleaded eo nomine but in fact, if the premises have been taken on rent in the name of the firm then all the partners of the firm become the tenants of that premises. In this connection, reliance can be placed on M/s Chhotelal Pyarelal Vs. Shikhar Chand (1 ).