Madras High Court
Gopaldas vs Y.J.Shamshudeen on 16 July, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.07.2012 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(NPD).Nos.897 and 922 of 2012 and M.P.No.1 of 2012 1. Gopaldas 2. Daulathram 3. Shoba 4. Maya ... Petitioners in CRP 897/2012 M/s Seth Gopaldas Kishindas a firm of Bankers represented by their partner Mr.Nandlal Kishindas ... Petitioner in CRP 922/2012 vs. 1. Y.J.Shamshudeen 2. Y.J.Bhakeer 3. Y.J.Abbas 4. Y.J.Shabeer ... Respondents in both CRPs Civil Revision Petitions filed under section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, as against the judgment and decree dated 03.01.2012 of the Rent Control Appellate Authority viz., VIII Judge, Court of Small Causes, Chennai in RCA Nos.523 and 522 of 2010 confirming the fair and decreetal order dated 21.07.2010 of the Rent Controller of the XVI Judge, Court of Small Causes, Madras in RCOP No.2093 of 2009. For Petitioners In CRP 922/12 : Mr.P.Haridas, Sr.Counsel for Mr.K.Shakespeare In CRP 897/12 : Mr.R.Ananda Babu For Respondents : Mr.S.Vasudevan ORDER
Animadverting upon the judgment and decree dated 03.01.2012 passed by the Rent Control Appellate Authority viz., VIII Judge, Court of Small Causes, Chennai in RCA Nos.523 and 522 of 2010 confirming the fair and decreetal order dated 21.07.2010 passed by the Rent Controller, XVI Judge, Court of Small Causes, Madras in RCOP No.2093 of 2009, these civil revisions petitions are focussed.
2. The parties are referred to hereunder according to their litigative status and ranking before the learned Rent Controller.
3. A summation and summarisation of the germane facts in a few broad strokes, absolutely necessary for the disposal of these two revisions would run thus:
The respondents herein filed the RCOP on the ground that they required the demised premises to be demolished and a new building erected as per law. However, the respondents therein who are the revision petitioners herein, resisted the petition on various grounds.
4. During enquiry on the side of the petitioners in RCOP, one Bakeer was examined as P.W.1 and Exs.P1 to P10 were marked. On the side of the respondents, one Nandalal Kishandoss was examined as R.W.1 and Exs.R1 to R12 were marked.
5. The learned Rent Controller ordered eviction, as against which two appeals were filed, one by the partnership firm and another by some of the partners of the said firm, for nothing but to be dismissed confirming the order of the Rent Controller.
6. Being aggrieved by and dissatisfied with the order of the Rent Controller and the judgment of the appellate authority, these two revisions are focussed on various grounds.
7. The learned Senior Counsel for the revision petitioners/tenant in CRPs would advance his arguments, which could pithily and precisely be set out thus:
(a) Both the Courts below fell into error in holding that there was relationship of the landlord and the tenant between the petitioners and the respondents in the RCOP.
(b) The lease which emerged in favour of the tenants was not an ordinary lease, but a composite one attracting the exemption contemplated under Section 30(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act, [herein after referred to as 'The Act'].
(c) It is not as though only the building was leased out but it was leased out along with furnitures for the purpose of the tenants using those furnitures in their business, and they had the right to sub lease the same which fact is explicit in the lease deed, which emerged between the tenants and the vendor of the present petitioners; however, both the Courts below failed to take note of the same, but they simply rejected the plea of the tenants.
(d) There is nothing to indicate and exemplify that the petitioners in the RCOP were ready with the building plan for construction, after demolition of the existing structure.
(e) In the fixation of fair rent proceedings initiated by the original owners of the building as against the revision petitioners herein, the petitioners in the RCOP attempted to get themselves impleaded and at that time itself, they were fully aware of the fact that there were as many as 64 sub tenants in the demised premises. It is unimaginable as to how within the statutory period of three months, the petitioners in the RCOP could evict all those sub tenants, even though they have not been added as eo nomine parties and thereafter demolish the building and raise a new construction. Wherefore it shows that there are no bonafides in the claim of the landlords for demolition and reconstruction.
(f) In fact the original lease period was for thirty years with effect from 1970, however that was extended for thirty more years by virtue of an additional unregistered letter. Surprisingly, both the Courts below failed to take note of the same, but they simply held as though the lease got expired by the year 2000 itself, so to say, after the expiry of thirty years' period of lease.
(g) The financial wherewithal of the petitioners in RCOP was not established before the Rent Controller. However, both the Courts below simply held as though the petitioners had financial wherewithal to raise a new building after demolishing the existing one.
(h) The evidence adduced on the side of the tenants was discarded without any valid reason.
(i) The dictum as found enunciated in Vijayalakshmi case in 1996 (2) CTC, 526 was not considered by the Courts below.
(j) The learned Senior Counsel also would while arguing raise the following additional grounds:
The decision of the Hon'ble Apex Court reported in AIR 1984 SC 1570 [M/s Chhotelal Pyarelal, the Partnership Firm and others v. Shikharchand] was not considered at all by both the Courts below, as citing in RCOP the partnership firm as a tenant was untenable.
(k) The actual partners eo nomine were not proceeded against and even though that is a curable defect, it was not rectified till now.
(l) The non impleadment of the sub tenants even though may not be fatal, yet that would go to show that there was no bonafide intention on the part of the landlords in seeking eviction.
(m) Short of transfer of title under the original lease deed (Ex.R1), every other rights got transferred from the then landlords in favour of the lease holders and in fact they have been paying property tax and doing everything except exercising the right of the ownership over the demised premises and that is indicative of the fact that the original vendors themselves even after thirty years allowed the respondents in RCOP to continue as such in the property with the old terms and conditions and at no point of time, the petitioners in RCOP asserted their right of ownership by demanding rent or accepting rent from the respondents in RCOP.
(m) There is also nothing to indicate that the four buyers who are the petitioners in RCOP had any specific separate right or joint right over the property, even though they might be brothers among themselves. The deposition of P.W.1 was not in any way enlightening the said issue.
Citing the precedents on his side and also referring to the Transfer of Property Act, the learned Senior Counsel for the tenants, would pray for the dismissal of the RCOP by allowing the CRPs.
The learned counsel for the revision petitioners in RCOP No.2093 of 2009 would reiterating the grounds of revision submitted his arguments.
8. In a bid to extirpate and torpedo, pulverise and impugn the arguments and pleas as put forth and set forth on the side of the revision petitioners/tenants, the learned counsel for the petitioners in RCOP/landlords, would pyramid his argument which could pithily and precisely be set out thus:
(a) The following four broad grounds:
(1) The lease emerged in favour of the tenants was a composite lease attracting the exemption under Section 30(iii) of the Act;
(2) The non impleadment of the sub tenants eo nomine would smack the malafide intention of the landlords;
(3) The partnership firm cannot be proceeded against under the Tamil Nadu Buildings (Lease and Rent Control) Act without impleading the partners eonomine; and (4) The lease period was for sixty years and not for thirty years in view of the extension given by the vendors of the present landlord, are all having no legs to stand in view of the decisions of the Hon'ble Apex Court and this Court.
(b) The original lease deed (Ex.R1) was a registered one for thirty years and if at all there is any extension, then it should be by way of a supplementary registered deed in view of Section 91 of the Indian Evidence Act.
(c) The terms and conditions as contained in the registered lease deed cannot be modified by virtue of any unregistered deed. In this case, the original period of thirty years' got elapsed and thereafter, the right of the tenants was only that of statutory tenant under the Act and they cannot simply for the purpose of bypassing the provisions of the Act, contend as though there had been extension of lease.
(d) Even for the sake of argument without admitting, it is taken that the lease was for a period of sixty years and not thirty years, yet the invocation of Section 14(1) of the Act could not be taken as one barred by virtue of such contractual lease period; de hors such period a landlord can very well seek for demolition and reconstruction of the building in the demised premises.
(e) The landlord and tenant relationship between the revision petitioners and the respondents herein is an admitted one, over which there could be no second thought over it. A cumulative reading of the evidence bespeak the same.
(f) The furnitures and fittings as found set out in the lease deed were permitted to be sold by the tenants and in such a case, even by phantasmagorical thoughts it cannot be stated that those furnitures were intended to be used for the tenants' business purpose. Had really they been intended to be used for such business, the question of contemplating sale by the tenant will be a well-nigh impossibility. As such the said term would demonstrate that there was no composite lease.
(g) There is also nothing to indicate that the tenants were doing business in real estate. They have been only authorised to sublet the demised premises at their option. The non impleadment of the sub tenants is not fatal and because of that no malafide intention could be imputed as against the landlords.
(h) The period of three months contemplated for reconstruction statutorily could be extended by the Court for valid reasons.
(i) The petitioners in the RCOP happened to be brothers, who jointly purchased the demised premises and they also filed the RCOP jointly for getting possession of the same from the tenants so as to get it demolished and a new one erected thereon.
(j) The partners who were at the time of entering into the original lease, were cited eo nomine in the RCOP and on hyper technicalities, the same cannot be dismissed.
Citing various decisions on his side, the learned counsel for the landlords, would pray for the dismissal of the CRPs as there is no perversity or illegality in the findings of both the Courts below.
9. The points for consideration are as to:
(1) Whether it has to be construed that the lease emerged in favour of the tenants, was for a period of thirty years or for sixty years and what is the legal significance of Ex.R4 in that regard?
(2) Whether the lease emerged in favour of the tenants should be construed as a composite one attracting the exemption under Section 30(iii) of the Act?
(3) Whether the non impleadment of the sub tenants eo nomine is fatal to the RCOP?
(4) Whether the respondent/tenant partnership was not to be cited as such a partnership, in view of the inapplicability of Order XXX Rule 1 of CPC and that too in view of the decision of the Hon'ble Apex Court reported in Chhotelal Pyarelal case (cited supra) and whether R2 to R7 cited in the RCOP cannot be treated as the partners of the partnership firm cited eo nomine?
(5) Whether there is any perversity or illegality in the order passed by the Courts below?
POINT NO.1
10. At the outset itself I would like to fumigate my mind with the following provisions of law:
(i) Section 17 of the Registration Act:
17. Documents of which registration is compulsory (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871 or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-
(a) instruments of gift of immovable property
(b) other non-testamentary instruments which purport or operate, to create, declare,assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration assignments, limitation or extinction of any such right, title or interest;
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent and
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
Provided that the State Government may, by order published in the Official Gazette exempt from the operation of this subsection any leases executed in any district, or part of a district, the granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
[(1-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53-A of the Transfer of Property Act, 1882, shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2011, and if such documents are not registered on or after such commencement then, they shall have no effect for the purposes of the said section 53-A] ....... .......... .......... .........."
(ii) Section 91 of the Indian Evidence Act:
91.Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.--When the terms of a contract,or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
Exception 1.--When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.
Exception 2.--Wills admitted to probate in India may be proved by the probate.
Explanation 1.--This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document and to cases in which they are contained in more documents than one.
Explanation 2.--Where there are more originals than one, one original only need be proved.
Explanation 3.--The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.
(iii) Section 107 of the Transfer of Property Act:
"107. Leases how made.-- A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
[All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
[Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:] ....... ........ ......... ........."
A cumulative reading of those sections would unambiguously and unequivocally, pellucidly and palpably highlight and spotlight the fact that if there is a lease for a period of more than one year, it should be by a registered deed. Section 91 of the Indian Evidence Act would directly be on the point that no variation could be called upon to be read in a registered document except in view of the grounds set out under Section 92 of the Indian Evidence Act. Here there is no ground that the respondents were bamboozled or beguiled or lulled into some false belief to enter into the lease agreement (Ex.R1) only for thirty years and not for sixty years. A reading of the lease deed-Ex.R1 coupled with Ex.R4, the letter, would shed light on the point that in order to evade payment of stamp duty, they did choose to incorporate the period of lease as thirty years, and not sixty years. In such a case, my mind is redolent and reminiscent of the following maxims:
(i) Ex dolo malo non oritur actio Out of fraud no action arises; fraud never gives a right of action.
(ii) Ex nudo pacto non oritur actio-Out of a nude or naked pack that is, a bare parol agreement without consideration, no action arises. Out of a promise neither attended with particular solemnity such as belongs to a speciality nor with any consideration no legal liability can arise.
(iii) Ex turpi causa non oritur actio: Out of a base illegal, or immoral consideration, an action does not arise.
11. A litigant cannot be allowed to contend before the Court that in order to evade the law relating to revenue, they entered into a particular type of registered document, which in fact was not reflecting the true purport, but some other one. As such, on that ground itself, I am of the view that no credence could be attached to Ex.R4 and both the Courts below correctly rejected its evidentiary value.
12. The learned Senior Counsel for the tenants would submit that at no point of time the original landlords, namely the vendors of the present landlords gave any notice offering to return the sum of Rs.50,000/- paid under the original lease deed, Ex.R1. The fact remains that the provision of the Tamil Nadu Buildings (Lease and Rent Control) Act is clear on the point that only one month's rent could be treated as advance and the remaining amount paid by the tenants to the landlords as advance should be adjusted towards arrears of rent. Here whenever the question of payment of arrears by the tenants to the landlords arise, at that time the former are at liberty to get adjusted the excess amount which they paid towards advance.
13. The learned Senior Counsel would cite certain excerpts from the Commentary on Transfer of Property Act, which are extracted hereunder:
"Section 105:
(80). Incidents of a lease.-- From the definition of the word "lease" it is clear that a lease creates an interest in the property in favour of the lessee and he has got a right to remain in occupation of the premises on payment of rent. It cannot, therefore, be seriously contended that this right is not a property within the meaning of Sec.60. The incidents of a transfer are generally described in Sec.8. That section is subject to a different intention "expressed or necessarily implied". Such intention may be gathered from the nature of the transfer. If it is an out-and-out transfer by sale it carries with it all the incidents of ownership. If it is a mortgage it implies no more than the transfer of an interest by way of security. If it is a lease the only interest conveyed is "a right to enjoy such property".
....... ........ ........."
(100) Rent:
".................
Where a house or a building is let along with furniture and fittings supplied by the landlord for use in such building, a payment in respect of the use of such furniture or fittings would be part of the rent. Both together constitute the rent for the building let with furniture and fittings."
(112) Relationship of lessor and lessee.--
"....... ....... ............
It is well settled position of law that in order to decide whether the relationship between the parties is one of landlord and tenant or merely that of licensor or licensee, the main consideration would be the intention of the parties, which has to be ascertained from the terms of the agreement. When there is no written agreement, the intention of the parties has to be necessarily inferred from the circumstances and conduct of the parties."
(117) Lessor lays his conditions, if any, on the extent of the right transferred.--
A lease according to Sec.105 of Act 4 of 1882 is a transfer for consideration of a right to enjoy the demised property. Obviously, the right transferred in such a property is transferred by the lessor in favour of the lessee. As in any other transfer, so in this type of transfer the transferor or the lessor lays his conditions of limitation, if any, on the extent of the right transferred. The right vesting in the lessor can thus only be limited at the time of the transfer, for the matter of the transfer, by him, and equally obviously enough not by the transferee or the lessee. The latter can, of course, accept any conditions subject to which he takes the transfer, but the extent of the right transferred is determined by the transfer in that respect made by the lessor, and not by the lessee. On this consideration, if the duration of a lease is to be determined from the contents and context of a rent-note or a lease-deed, which is otherwise not clear or admits of an argument on the basis of the intention of the parties, then what has to be seen is what was the right and to what extent that right has been transferred by the lessor to the lessee."
and pilot his arguments to the effect that the lease emerged in favour of the tenants as per Ex.R1 was such that it cannot be taken as a lease simplicitor but a composite one; that the tenants were paying property tax till date and the landlords have not asserted any right as such landlords over the property. A mere poring over of the cited excerpts supra and also a recollection of the concept 'lease', would leave no doubt in the mind of the Court that simply because a tenant has been vested with umpteen number of rights as contemplated under law, except ownership, the lease in his favour would not in any way be construed as the one something more than a lease. The lease holder will continue to be the lease holder only and in fact here still the revision petitioners are contending that they are only the lease holders; wherefore, there cannot be any embargo for treating them as statutory tenants under the Act after the expiry of the lease period of thirty years contemplated in Ex.R1.
14. Mere payment of tax by the tenants would not in any way change the position as payment of tax could be treated as part of rent. Over and above that, a landlord de hors the contractual period of lease, can require the demised premises for demolition and reconstruction. Under Section 14 of the Act, there is no stipulation to the effect that during the currency of the contractual period of tenancy, there should not be any eviction, as it is found specified in Section 10(3)(d) of the Act relating to seeking eviction on the ground of personal occupation. Hence I am of the considered view that the facts as put forth on the side of the tenants as above are untenable and both the Courts below correctly rejected the same.
POINT NO.2:
15. The learned Senior Counsel for the tenants by inviting the attention of this Court to the list of furnitures as found set out in Ex.R2, would develop his argument that those articles were not sold even though such right to sell was given to the tenants and in such a case, the landlords cannot try to make a mountain out of a mole hill and project their case that the lease should not be construed as a composite one.
16. At this juncture, the learned counsel for the landlords would cite the following decisions:
(1) 1976 1 SCC 128 [Dwarka Prasad v. Dwarka Das Saraf] (2) 1972 (2) MLJ 554 [Messrs Pals Theatres and others v. B.Abdul Gaffoor Saheb and others] (3) Vol 99 LW 278 [Narayaan v. Natesa Achari] (4) 1995 (1) MLJ 540 [K.V.Jaisingh v. C.R.Govindaswami Chettiar (Died) and others] (5) 1996 (2) CTC 518 SC [K.V.Jai Singh v. C.R.Govindaswami Chettiar (Died) and others] (6) 1976 (2) MLJ 107 [K.Raachandran Chettiar v. G.Lakshminarayanaswami Chettiar] (7) Vol 94 LW 334 [Bombay Burmah Trading Corporation Ltd., Pollachi, Coimbatore District v. A.T.Narayanaswami Pillai]
17. The learned Senior Counsel for the tenants would cite the following decisions in respect of the concept 'composite lease':
(1) 1952 (1) MLJ 221 (SC) [J.H.Irani (died) and others v. T.S.P.L.P. Chidambaram Chettiar and others] (2) 1962 (1) MLJ 92 (SC) [P.J.Irani v. The State of Madras and another] (3) AIR 1965 SC 716 [Uttamchand v. S.M.Lalwani] (4) 1972 (II) MLJ 554 [Messrs Pals Theatres and others v. B.Abdul Gaffoor Saheb and others] (5) 88 LW 88 [M/s Balaji Cine Enterprises through is partners and others v. M/s Sakthi Talkies, through its Director N.K.Guruswami Naicker and another] (6) 1976 (II) MLJ 107 [K.Ramachandran Chettiar v. G.Lakshminarayanaswami Chettiar] (7) 99 LW 278 [Narayanan v. Natesa Achari] (8) 1995 (1) MLJ 540 (DB) [K.V.Jaisingh v. C.R.Govindaswami Chettiar (Died) and others] (9) 1996 (ii) CTC 518 (SC) [K.V.Jai Singh v. C.R.Govindaswamy Chettiar and others] Some of the decisions are anterior to the current Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and also the incorporation of Section 30(iii) of the Act as per the Amendment Act of 1973. The precedents cited at Sl.Nos.4, 7 and 8 were also cited by the learned counsel for the landlords. The rest of the decisions cited supra are generally highlighting the concept 'composite lease', over which there could be no quarrel.
18. A mere poring over and perusal of those decisions would highlight one more important point that in order to attract the exemption under Section 30(iii) of the Act, the furnitures given by the landlords to the tenants should be for the purpose of the tenants running their business.
19. The learned counsel for the landlords, laying stress on the term 'tenant' used in Section 30(iii) of the Act, would argue that the term sub tenant is not found used. Normally the use of the word 'tenant' would not include sub tenant unless it is expressly contemplated in the exemption clause.
20. At this juncture, I would like to extract the definition of the term 'tenant' as found in Sub Section 8 of Section 2 of the Act:
[(8)""tenant" means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son, or daughter, or the legal representative of a deceased tenant who--
(i) in the case of a residential building, had been living with the tenant in the building as a member of the tenant's family up to the death of the tenant, and
(ii) in the case of a non-residential building, had been in continuous association with the tenant for the purpose of carrying on the business of the tenant up to the death of the tenant and continues to carry on such business thereafter; and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building by its tenant or a person to whom the collection of rents or fees in a public market, cart stand or slaughterhouse or of rents of shops has been formed out or leased by a Municipal Council or a Panchayat Union Council or the Municipal Corporation of Madras or the Municipal Corporation of Madurai.] Accordingly, it is crystal clear that the term 'tenant' used in Section 30 of the Act refers to the tenant and not to sub tenant and the use of furnitures given by the landlord to the tenant should be for the use of the tenant's business and not for the use of any sub tenant's business. It would not be out of place to recollect that one other provision of the Act relating to building definition.
Sub Section 2 of Section 2 of the Act:
"(2) "building" means any building or hut or part of a building or hut let or to be let separately for residential or non-residential purposes and includes--
(a) the garden, grounds and out-houses, if any, appurtenant to such buildings, hut or part of such building or hut and let or to be let along with such building or hut;
(b) any furniture supplied by the landlord for use in such building or hut or part of a building or hut, but does not include a room in a hotel or boarding-house."
The definition of building include furnitures also. The ingredients of Section 30(iii) of the Act, if read deeply, certainly the distinction between leasing out a building with furnitures for ordinary purpose, and the leasing out a building with furniture for the purpose of the tenant carrying on his business would be clear and distinct. As such with this in mind, the lease deed itself has to be perused and the connected records. The lease deed would not refer to any specific business of the tenants. However, one thing could be understood from Ex.R1, that the tenant took on lease the building only for business purpose, but without specifying the nature of any business.
21. The Tamil Nadu Buildings (Lease and Rent Control) Act, is by and large a self-contained Act, which contemplates hierarchy of authorities to decide the lis. Section 30(iii) of the Act brought into the statutory work by virtue of Section 20 of Act 23/73, by virtue of amending the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
22. Trite the proposition of law is that an authority under a special enactment is deemed to be having plenary powers to decide as to his own jurisdiction and also the exemptions contemplated under the Act, as otherwise the powers conferred on the authority and the exemption contemplated under the Act would be rendered negatory holding that only an authority other than the authority contemplated under the special enactment would decide about the jurisdiction of the said authority and also the exemption contemplated under the Act would deprive the significance of the beneficial Legislation like the one Tamil Nadu Buildings (Lease and Rent Control) Act.
23 . The learned counsel for the landlords would appropriately and appositely inviting the attention of this Court to the top portion of the lease deed would submit that the address of the tenant is found mentioned as Mint Street and at that time their business was stated to be one that of 'Banking Shroffs and Merchants' and there is nothing to indicate that they were doing any real estate business. Incidentally the learned counsel for the landlords took pains to invite the attention of this Court to the typed set of papers and point out as to how in the typed set of papers filed by the tenants there are prevarications and interpolations quite contrary to the documents filed before the Court because in the documents marked before the lower Court the place of business is stated to be one that of at No.801-A, Shivalaya CNC Road, whereas in the typed set it is specified as though they were doing business in the demised premises itself.
24. Whereas the learned counsel for the tenants would point out that the learned counsel for the landlords is trying to make a mountain out of mole hill, which are all mere typographical errors. Of course one fact is clear that in that regard, the typed set is not reflecting the true nature of the documents filed before the Court.
25. The learned counsel for the landlords correctly and acceptably has highlighted such discrepancies to establish that the tenants at no point of time conducted their business in the demised premises and that they only sublet the premises to various sub-tenants and that the tenants did not use the said furnitures for running their business and wherefore, the exemption under section 30(iii) of the Act was not attracted.
26. As submitted by the learned counsel for the landlords, the right conferred on the tenants by the landlords for alienating the furnitures cannot be taken or treated as the one having no significance of its own. If at all the landlords thought that the tenants should take the building along with furnitures purely for the purpose of running their business or utilising the furnitures for their business then that said clause would not have found a place in Ex.R1. The learned counsel for the landlords would try to explain and expound by pointing out that the demised premises was purchased by the vendors of the present landlords from one Mana Muna Estate and they were using it only as godown. In fact the original landlords, so to say the vendor of the present landlords never did any business or anything in the demised premises and the respondents simply sub-leased it out in favour of the sub- tenants herein. Ex.R.2- the list of furniture and fittings, contained therein are re-produced hereunder for ready reference.
========================================================================================== Sl.No. Description Qty Rate Total value ==========================================================================================
1. Wooden Tables 39 100 3900-00
2. Wooden Chairs 20 50 1000-00
3. Wooden side rocks 5 100 500-00
4. Steel filing cabinets 8 250 2000-00
5. Steel Almarahs & Cuboards 1 400 400-00
6. Steel Folding chairs and revolving chairs 50 100 5000-00
7. Electric Fans 70 200 14000-00
8. Wall Clock 1 100 100-00
9. Air Circulator 1 200 200-00
10. Book shelves 3 50 150-00
11. Wooden cupboards 60 50 3000-00
12. Type writer 1 300 300-00
13. Iron Safes 2 300 600-00
14. Wooden Horses 13 50 650-00
15. Wooden stools 5 10 50-00
16. Structo racks 4 50 200-00
17. " Tables 6 100 600-00
18. Weighing balance 2 50 100-00
19. Glass Almirahs 1 100 100-00
20. Cardisc Cainets 2 200 400-00
21. Water cooler 1 300 300-00
22. Fire bucket with stand 1 30 30-00
23. Tool Bench 1 20 20-00
24. Copying Machine 1 100 100-00
25. Heater 1 200 200-00
26. Air condition (old) 1 500 500-00
27. Towel Stand 1 40 40-00
28. Bath stand 1 40 40-00
29. Aluminium Top Table 4 50 200-00
30. Double fold Steel tray 3 20 60-00
31. Garden teapoy 2 40 80-00
32. Carpet 1 100 100-00
33. Iron ladder 1 20 100-00
34. Dealwood box 1 20 20-00
35. Ladder Small Iron 1 50 50-00
36. Glass pan & docrs 8 50 400-00
37. Lights (Tube) 100 20 2000-00
38. Electric Motor & cover 1 510 510-00
---------------
Rs.38,000-00
---------------
==========================================================================================
27. The list bespeaks and betokens that those furnitures are not having any special significance but they were ordinary chairs, tables, A.C. apparatus etc. and that alone made both the Courts below to remark that there were no machinaries leased out along with the building. No doubt the term 'furnitures' does not mean that they should be machinery.
28. I am fully aware of the fact that there need not be any machinary to be leased out to attract exemption under Section 30(iii) of the Act, but there should be intention on the part of the landlords as well as the tenants that the furnitures are being given and taken under the lease for the tenants to carry on the business in the demised premises. Here there is no smidgeon or molecular extent of evidence to display and demonstrate that the tenants at any point of time carried on their business in the demised premises by using those furnitures.
29. In the decision cited supra which emerged anterior to the incorporation of Section 30(iii) of the Act by virtue of the amendment Act, 1973 the Courts were confronted with the fact as to whether the lease contemplated before such amendment should taken as a composite lease or an ordinary lease coming with the protective umbrage of the unamended Act. At that time, the Courts felt that mere lease of a building was not sufficient but there should be transfer of business. However, after the amendment, the decisions emerged would connote and denote that if the tenant was given a building with furnitures for the purpose of the tenant using the same, for running his business in the demised premises, then that could be taken as a composite lease.
30. At this juncture, I would like to refer to the decision of this Court reported in 99 LW 278 [Narayanan v. Natesa Achari], which followed the judgment reported in 94 LW 334 [Bombay Burmah Trading Corporation Ltd., Pollachi, Coimbatore Dt., v. A.T.Narayanaswami Pillai]
31. Those decisions would clearly indicate and highlight that the dominant intention should be to lease out the furnitures for the purpose of enabling the tenant to use those furnitures for his business in the demised premises itself. If such an element is missing, then exemption contemplated under Section 30(iii) of the Act, cannot be pressed into service. Here as has been already pointed supra, there is nothing to indicate that in the lease deed that those furnitures were given for the purpose of enabling the tenants to use them for their business in the demised premises. If the tenants wanted to use those furnitures for running their business, such a clause so to say the clause for selling those furnitures would not have been incorporated. The learned Senior Counsel for the tenants would point out that in this case there is nothing to show that those furnitures were sold. This Court is not very much concerned with the factum as to whether the furnitures were sold or not. The purpose and object with which the said clause was incorporated should be taken into account; accordingly if viewed it is clear that the furnitures were treated as alienable part of the lease. Once such an intention was looming large in the mind of the contradicting parties, by no stretch of imagination it could be visualised that the furnitures were intended to be used for the business of the tenants. Accordingly, I am of the considered view that the lease cannot be termed as a composite lease and both the Courts on analysis of evidence arrived at the just conclusion.
POINT NO.3:
32. The learned Senior Counsel would try to press into service the point as to how four buyers namely the petitioners in RCOP could canvas their case for demolition and reconstruction. Legally speaking there is no embargo for four persons joining together and endeavouring to demolish a building over which they are having joint ownership and raise a new construction in that place. When such is the legal position, there is no knowing of the fact as to how such a point could be successfully put forth before this Court.
33. The learned Senior Counsel for the tenants would submit that non impleadment of the sub tenants bespeaks and betokens the malafide intention on the part of the landlords. In this connection, the learned counsel for the landlords would cite the following decisions:
(1) 1964 VII SCR 760 [Rup Chand Gupta v. Raghuvanshi Private Limited and another] (2) 1965 11 MLJ 265 [Ramachandra Chetty v. C.Mothaliyandan Chettiar] (3) 1967 1 MLJ 83 [P.Parthasarathy Chetty v. S.Chitra Pillai and another] (4) 1968 1 MLJ 386 (DB) [Madurai Nayagamma and others v. Plantain Merchants Association, represented by its Secretary] (5) 1972 1 MLJ 133 [K.C.Chanda Kutti Kurup v. Gulam Mohideen Saheb] (6) 1981 1 MLJ 354 [S.Balasubramaniam v. Gulab Jan]
34. A cumulative reading of those excerpts including the entire judgments would unambiguously and unequivocally highlight the point that non impleadment of the tenants would not be fatal to the case of the landlords. In fact the Courts went to the extent of holding that if at all the landlords face any obstruction at the time of taking delivery at the instance of the sub tenants, it is for the landlords to face the same and not for the chief tenant to pit it as an embargo for the landlords to seek possession of the demised premises.
35. The learned Senior Counsel at this juncture would intervene and point out that his plea was not that non impleadment of sub tenants was fatal to the RCOP filed by the landlord for eviction, but that would speak about the lack of bonafides on the part of the landlords. No doubt the present landlords who happened to be the petitioners in the present RCOP, wanted to get themselves impleaded in the earlier RCOP filed by the vendors of the present landlords for fixation of fair rent and at that time itself they had knowledge about the number of sub tenants who were authorisedly occupying the demised premises.
36. The learned counsel for the landlords would try to explain and expound by pointing out that he did not shy away from the responsibility of citing those sub-tenants as eonomine parties in the present RCOP, but the very factum of the chief tenant unwilling to furnish the names of the sub tenants in fact discouraged the landlords in taking steps to implead the sub tenants.
37. The learned counsel for the landlords inviting the attention of this Court to the portion of the reply given by R.W.1 during cross examination as under:
"jw;nghJs;s chpikahsUld; vdJ cs;thlifjhuh;fSf;F ve;jtpj xg;ge;jKk; ,y;iy vd;W brhd;dhy; rhp/ vd;dplk; fhl;lg;gLk; Mtzk; vdJ tHf;fwp"Uf;F mDg;gg;gl;l mwptpg;g[ vd;W brhd;dhy; rhp/ k/rh/M/9 FwpaPL bra;ag;gLfpwJ/ me;j mwptpg;gpy; cs;sthW cs;thlifjhuh;fpsd; bgah;fs; kw;Wk; thlif bjhptpf;ftpy;iy vd;W brhd;dhy; rhpjhd;/ mt;thW bfhLf;f ntz;oa mtrpakpy;iy/@ would develop his argument that when such was the intention of the chief tenants, there was no point in adding the sub tenants as eo nomine parties, because they themselves were not sure of the fact as to whether there were 64 tenants or 63 tenants or 75 tenants etc. and hence the landlords took up the risk of facing the sub tenants at the appropriate stage.
38. At this juncture, I would like to visualise one other contingency also that the order as against the chief tenant might be taken as an acceptable one by the sub tenants and they may vacate the premises. If they obstruct delivery, then it is for the landlord to take steps for removal of obstruction as per law.
39. As such simply because the names of the sub tenants were not cited eo nomine, this Court cannot attribute malafide intention on the part of the landlords and further more the landlords also adequately convinced the Court by drawing the attention of this Court to the factum of non reply to the notice Ex.P9 given by the landlords to the chief tenants and R.W.1's answer to the landlords as delineated supra.
40. The learned counsel for the landlords would submit that subletting itself could never be construed as a business and therefore, the tenants cannot contend that their business itself was one of sub letting. No doubt, a mere perusal of the terms and conditions of Ex.R1-the lease deed would show that the tenants were permitted to sub lease and there was nothing to indicate that subleasing itself was the business of the tenants.
POINT NO.4:
41. The whole kit and caboodle of facts and figures as stood exposited from the evidence and arguments of both sides would actuate and propel me to think that there are as many as five partnership deeds referred to by the tenants, so to say the revision petitioners herein as under:
The partnership deed of the years 1970, 1992, 2000, 2003 and 2010, but none of those documents were produced.
The learned counsel for the landlords would also convincingly point out that there is nothing to show that in the partnership deed of the year 1970, which was the earliest one, there was anything to show that the said partnership was doing any real estate business. The learned counsel also would appropriately point out that the partners in that deed of the year 1970 were eo nomine cited as respondents in the RCOP as tenants.
42. At this juncture I would like to refer to the following decisions:
(1) 1971 (1) SCC 280 [The Commissioner of Income Tax, Andhra Pradesh, Hyderabad v. M/s Jayalakshmi Rice and Oil Mills Contrator Co.] (2) AIR 1988 GUJ 188 [M/s Harijan Boot House, v. Registrar of Firms, Ahmedabad City, Ahmedabad] (3) AIR 1975 A.P. 232 [Rajasthan Trading Co. v. The Registrar of Firms and another]
43. I would like to fumigate my mind with the following provisions of the Indian Partnership Act, 1932:
"32. Retirement of a partner -(1) A partner may retire -
a) With the consent of all the other partners.
b) in accordance with an express agreement by the partners, or
c) Where the partnership is at will by giving notice in writing to all the other partners of his intention to retire (23)_ A retiring partner may be discharged from any liability to any third party for acts of the firm done before his retirement by an agreement made by him with such third party and the partners of the reconstituted firm after he had knowledge of the retirement. (3) Not withstanding the retirement of a partner from a firm, he and the partners continue to be liable as partners to third parties for any act done by any of them which would have been an act of the firm if done before the retirement, until public notice is given of the retirement.
Provided that a retired partner is not liable to any third party who deals with the firm without knowing that he was a partner.
(4) Notices under sub section (3) may be given by the retired partner or by any partner of the reconstituted firm."
44. A plain running of the eye over those decisions including the provisions of the Partnership Act would pellucidly and palpably display and convey that a partnership is not a legal person and not even a legal entity. Then the question arises as to whether under the Tamil Nadu Buildings (Lease and Rent Control) Act, a partner could be termed as a tenant. To the risk of repetition and pleonasm, I would like to refer to the definition of tenant cited supra which would speak that partnership cannot be a tenant ex facie and prima facie. The question would arise as who actually took on lease of the demised premises. The partners who actually signed the lease deed Ex.R1 with the then landlords, are bound as tenants in their individual capacity, relating to the problems arising out of said lease. Unless the landlords expressively exonerate those partners who signed the lease deed Ex.R1, as the ones not liable, the question of those partners wriggling out of their liability under the lease would not arise at all. A partnership is not a registered Company or a legal entity. Here there is no miniscule or scintilla of evidence to indicate that the partners who separately filed the RCA, got any permission from the landlords so as to wriggle out of their liability under the lease. There is nothing to project or evince that the landlords either the previous or the present ones ever exonerated the persons who signed as partners of Ex.R1 from their liability under the lease. The decisions cited supra also are on the point that whenever any change in the partnership occurs, and the new partners are being let into the partnership, then that should be with the consent of the landlord and then only it could be taken that the landlord consented for such change and that would be binding on the landlord, as otherwise I am of the considered and firm view that for the purpose of the Act, the original partners who signed the lease deed are personally liable so far the lease transaction is concerned in respect of the demised premises.
45. Accordingly, I hold that the partners who signed R1 and separately filed RCA, cannot disown their liability at all under the lease. In this view of the matter, no broad based roving probe or further elaboration relating to the actual retirement of the parties from the partnership, and the reconstitution of the partnership etc as found set out in the pleadings as well as in the evidence, need be gone into. It would not be out of place to mention here that no endeavour has been taken on the side of the tenants to mark any income tax returns or their audited accounts to show that ever since 1970 they have been doing business in real estate.
46. The learned Senior Counsel for the tenants would point out that no plan approval was produced and the financial wherewithal of the tenants also has not been placed before the fora below to establish and prove that the landlords are having the financial ability to demolish the building and reconstruct a new one. No doubt, Ex.P4 was marked on the side of the landlords, which was commented upon as though it was not evidence by itself.
47. The learned Senior Counsel for the tenants would cite the following decisions relating to the concept 'Demolition and Reconstruction.' (1) 1998 (ii) MLJ 403 [Munusamy Nadar and another v. Ganapathy Chettiar] (2) 1996 (II) CTC 586 [Vijay Singh etc. etc. v. Vijayalakshmi Ammal] (3) 1997 (I) MLJ 626 [Ammal Pillai and others v. M/s Varadarajulu Complex a Partnership Firm represented by its Partners] (4) 1998 (I) MLJ 403 [Munusamy Nadar and another Ganapathy Chettiar] (5) 1997 (1) MLJ 445 [Sherwood Educational Society, No.3, XIII Avenue, Harrington Road, Chetpet, Madras 31 v. Abid Namazie and two others] (6) 1997 (II) CTC 41 [S.Kattappan and another v. Civil Advocates Clerks' Association, rep. By its President 5A Collector Office Road Dindigul Town] (7) (2001) / TLNJ 275 [Venugopal v. P.T.Ravichandran and others] (8) (2002) 9 SCC 437 [Ammaiyappa Transport v. N.S.Rajulu] (9) (2003) / SCC 414 [Shakeelulr Rahman v. Syed Mehdi Ispahani] (10) 2004 (2) CTC 270 [Habibullah v. Mohamed Sultain] (11) 2004 (3) LW 754 [P.S.Pareed Kaka and others v. Shafee Ahmed Saheb] (12) AIR 2006 SC 1930 [S.Venugopal v. A.Karruppusami and another] (13) 2007 (1) CTC 326 [C.Natarajan v. G.N.Shanmugam and others] (14) 2007 (3) CTC 45 [Sridharan v. S.Natarajan and 2 others] (15) 2009 (5) LW 853 [S.Rajendran v. G.R.Rajan]
48. Whereas, the learned counsel for the landlords would cite the following decisions:
(1) 1996 (6) SCC 475 [Vijay Singh and others v. Vijayalakshmi Ammal] (2) 1997 (1) MLJ 445 [Sherwood Educational Society, No.3, XIII Avenue, Harrington Road, Chetpet, Madras 31 v. Abid Namazie and two others] (3) 1997 (1) MLJ 626 [Ammal Pillai and others v. M/s Varadarajulu Complex a Partnership Firm represented by its Partners] (4) 1998 (1) MLJ 403 [Munusamy Nadar and another v. Ganapathy Chettiar] (5) 2002 (9) SCC 437 [Ammaiyappa Transport v. N.S.Rajulu] (6) 2003 (1) SCC 414 [Shakeelulr Rahman v. Syed Mehdi Ispahani] (7) 2004 (2) MLJ 153 [Habibullah v. Mohamed Sultan] A mere reading of those decisions and more specifically the precedents reported in (2002)3 M.L.J.130(S.C.) - HARRINGTON HOUSE SCHOOL VS. S.M.ISPAHANI AND ANOTHER, certain excerpts from it would run thus:
"8. ..........................." A procedure can be devised to protect the interest of both the tenant and the landlord, specially by taking care of the apprehension expressed by the tenant that the property may remain lying unconstructed inspite of being vacated by the tenant and followed by demolition if the plans for proposed construction are not sanctioned by the local authority. The decree as passed by the High Court is sustained but it is directed that the landlords shall submit the plans of re-construction for the approval of the local authority. Only on the plans being sanctioned by the local authority the decree for eviction shall be available for execution. Such sanctioned or approved plans shall be produced before the Executing Court whereupon the Execution Court shall allow a reasonable time to the tenant for vacating the property and delivering possession to the landlord-decree holders. Till then the tenant shall remain liable to pay charges for use and occupation of the suit premises at the same rate at which they are being paid along with teh plans the landlords shall also file an undertaking before the Executing Court as required by Clause (b) of Sub-Sec.(2) of Sec.14 of the Act."
and the precedent reported in (2002) 4 SCC 437 [R.V.E.Venkatachala Gounder v. Venkatesha Gupta and others]; certain excerpts from it would run thus:
"13. ........However, in view of the time that has already been lost in the litigation and to protect the interest of the tenants and certain to allay their fears, it is directed that the executing court shall, before directing the tenants to be evicted and possession being given to the landlord, direct the landlord to file plans of proposed construction, duly approved by the local authority, and give an undertaking in terms of Section 14(2)(b) of the Act. No order as to costs."
would convey and spotlight that the Executing Court before issuing the order of delivery has to get itself satisfied about the currency of the plan approval; as such now the law has got settled to the effect that before obtaining order of delivery from the Court it is the duty of the landlord to satisfy the Executing Court by filing the current approved plan. Scarcely could it be stated that the statutory period of three months for completion of new building is not extendable and in view of the precedent reported in 2002 (9) SCC 437 [[Ammaiyappa Transport v. N.S.Rajulu], it is extendable also.
49. Relating to financial wherewithal is concerned a similar view also could be taken that it is for the landlord to submit before the Executing Court the necessary pass book or F.D. receipts or some other documents about their financial ability to demolish and reconstruct a new one. In the decision cited supra 2006(2) CTC 615, it has been pointed out that nowadays it would not be difficult for a landlord to raise a commercial building by availing loans from Nationalised Banks and from that one could understand the line of thinking prevailing in precedents concerning demolition and raising of new constructions. To some extent evidence were adduced and arguments also are advanced relating to the age of the building.
50. At this juncture, I would like to refer to the following decision:
2006(2) CTC 615 SC S.VENUGOPAL VS. A.KARRUPPUSAMI AND ANOTHER, certain excerpts from it would run thus:
"7. On the question of demolition and reconstruction of the premises in question, much was sought to be made out of the fact that the condition of the building had not been ascertained and, while according to the tenants it was not in a dilapidated condition, according to the landlord it was in a dilapidated condition. We do not attach much importance to the question as to whether the building was or was not in a dilapidated condition because Section 14(1) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (for short 'the Act') contemplates a building which is bona fide required by the landlord for the immediate purpose of demolishing it, and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished. Therefore, Section 14(1)(b) does not contemplate that the building sought to be demolished must necessarily be in a dilapidated condition. Even if a building is not in a dilapidated condition, it may be demolished for the purpose of erecting a new building on the same site.
11. In the instant case, we find that the property owned by the landlord, whatever may have been its value in the past, has acquired commercial value and, therefore, the landlord wishes to demolish the old single storey structure and to construct a multi-storied building, which may fetch him higher rent, apart from serving his own needs. The landlord had already applied to the competent authorities and got the plans approved. Taking into consideration all these reasons, we are convinced that the landlord bona fide intends to demolish the old building and to construct a new one. Raising funds for erecting a structure in a commercial centre is not at all difficult when a large number of builders, financiers as well as banks are willing to advance funds to erect new structures in commercial areas. This is apart from the fact that the landlord has himself indicated that he was willing to invest a sum of Rs.One and a half lakh of his own, and he owns properties and jewellery worth a few lakhs."
51. A plain reading of the precedent cited supra would clearly show that it is not necessary for the landlord to prove that the building is down at heel or that it is in such a dilapidated condition that it might collapse at any time. Scarcely could it be stated that the tenant could dictate terms to the landlord as to when the landlord should require the premises for demolition and reconstruction. There is no denying of the fact that the landlord is entitled to take a decision as to when his building has to be demolished and reconstructed for augmenting his own income. It is an admitted fact that the building is 70 years' old and that could be discerned from the evidence. Indubitable and indisputable, as it is, that the building is situated in the heart of the city of Madras and the tenants cannot compel the landlords to retain such old building and be satisfied with whatever income they derive out of it. The landlords already expressed their desire to demolish the old structure and raise a multi storied commercial building to augment their income, wherefore, such an intention on the part of the landlords cannot be labelled or dubbed as malafide one.
52. Relating to the decision of the Hon'ble Apex Court in M/s Chhotelal Pyarelal case (cited supra), arguments were advanced by both sides extensively. An excerpt from the said decision would run thus:
"2. Now, there can be no doubt that since the Code of Civil Procedure does not apply to proceedings under the HRC Order, no application for eviction can be maintained against a firm in the firm name. The firm is merely a compendious name for the partners constituting it and it is only by virtue of the provisions of Order 30 of the Code of Civil Procedure that a firm can sue and be sued in its own name without the partners being impleaded eo nomine. It is therefore clear that the firm of M/s Chhotelal Pyarelal could not be sued in the firm name by the respondent in so far as the application for eviction under the HRC Order was concerned. But we agree with the Division Bench of the High Court that this cannot by itself result in the dismissal of the application. ......"
53. A plain reading of the entire decision would evince and connote that in that particular case the litigation arose in connection with C.P. and Berar Letting of Houses and Rent Control Order of 1949, and as a preliminary issue, tenants raised the point that Order XXX Rule 1 of CPC was not applicable and that non impleadment of the partners by their very names was vital. Up went the litigation to Apex Court on that preliminary issue, whereupon the Apex Court held that Order XXX Rule 1 of CPC was not applicable and that however that was not fatal to the case of the landlords therein.
54. The tenor of the Hon'ble apex Court's judgement would convey and shed light that had there been before the Apex Court, the names of the tenants eo-nominee, then the Apex Court itself would have decided the lis; however, in that case, the names of partners were not disclosed and cited as parties and hence their Lordships felt that the matter had to be remitted back to the lower Court for carrying out the amendments and proceeding further as per law.
55. Here, the learned Senior counsel for the revision petitioners/tenants, by inviting the attention of this Court to paragraph No.2 of the RCOP would develop his arguement that only one respondent, namely, M/s.Seth Gopaladas Kishindas-the partnership is found referred to as the tenant. However, the learned counsel for the respondents herein/landlords would invite the attention of this Court to the short cause title and submit that eo-nominee-the partners of the partnership firm were cited as the respondents. Hence, it is just and necessary to extract the entire short cause title as well as the long cause title as found in the RCOP as under:
"1.Y.J.Samsudeen
2. Y.J.Bhakeer
3.Y.J.Abbas
4.Y.J.Shabeer .. Petitioners vs.
1.M/.Seth Gopaladas Kishindas a Firm of Bankers rep.by their Partners
2.Gopaldas
3.Nandlal
4.Daulatram
5.Mr.Indira
6.Mrs.Shoba
7.Mrs.Maya .. Respondents
1. The first petitioner is Mr.Y.J.Samsudeen, aged about 59 years, the second petitioner is Mr.Y.J.Bhakeer, aged about 53 years, the third petitioner is Mr.Y.J.Abbhas, aged about 50 years and the fourth petitioner is Mr.Y.J.Shabeer, aged about 48 years, the petitioners 1 to 4 are the son of Late Mr.Yussuf, residing at New No.4, Old No.163, Santhome High Road, Chenai-600 004. The address for service of the petitioners above named are that of their counsels 1) S.N.Narasimhulu & 2) K.J.Sivakumar having their office at No.161, Thambu Chetty Street, Chennai-600 001.
2. The respondent is a Partneraship Firm under the name and style of "M/s.Seth Gopaldas Kishindas" the bankers and represented by their partners 1) Mr.Gopalda, son of Kishindas, aged about 63 years, 2) M.Nandlal, son of Kishindas, aged about 65 years, 3) Mr.Daulatram, son of Kishindas, aged about 61 years, 4) Mr.Indira, wife of Balchand, aged about 68 years, 5) Mrs.Shoba, wife of Arjunlal, aged about 63 years and 6) Mrs.Maya, wife of Lalchand, aged about 63 years. The respondents having their office at No.801, Shivalaya, 8th Floor, Block-A, No.206, Ethiraj Salai, C-in-C Road, Chennai-600 105 and the address for service of the respondents that of the same as mentioned above."
(extracted as such)
56. The respondents in the short cause title are shown as seven in number and the first respondent is referred to as M/.Seth Gopaladas Kishindas a Firm of Bankers rep. by its Partners. R2 to R7 happened to be partners of the said R1-the partnership firm and they signed Ex.R1-the lease deed dated 10.8.1970.
57. No doubt, in the long cause title, at the beginning it is referred as 'The respondent' and not as 'the respondents'. However, in the same long cause title, in the last sentence, the term 'respondents' is found used. In the body of the RCOP, in various places, the term 'respondents' could be seen so as to refer to the tenants. As such, a cumulative reading of the entire RCOP, including the short and long cause titles would evince and evidence, portray and project, exemplify and demonstrate that the landlords, who filed the RCOP intended that the partnership firm as well as the individual partners, who signed Ex.P1-the lease deed should all be cited as respondents. A draconian approach in case of this nature is not warranted.
58. The respondents concerned understood that they have been cited eo-nominee as respondents in the RCOP. In fact, R1-the partnership firm filed separate counter through R3. R4 filed a separate counter, which was adopted by R2, R5 to R7 contending that R2, R4 to R7 were no more partners in the partnership firm and they had then nothing to do with the lease. R3 signed R1-partnership firm's counter, but R3 has not filed separate counter. It is therefore clear from the aforesaid arrangement itself that the partners, so to say, R2, R4 to R7, who signed Ex.R1-the lease deed, understood that they had been eo-nominee added as respondents and filed the counter.
59. I recollect and call up the legal adage:
Punctilious of Court procedures are for rendering justice and those handmaids of justice cannot be utilised for thwarting the course of justice.
60. Once the parties understood the aforesaid jurisprudential concept and contested the matter, the question of finding fault with that would not arise at this stage. In fact, understanding their status as individual respondents in the litigation, R2, R4 to R7 filed the RCA No.522 of 2010, which fact boomerangs as against them.
61. My discussion supra would highlight that as per law, the original partners, who signed the lease deed-Ex.P1, cannot, without the permission of the landlords, wriggle out of their personal liability arising out of the lease transaction. As such, the present landlords are justified in adding them as such and nothing could be found fault with such a course of action.
62. It has also to be noted that even in the counter filed by the respondents, there is no reference to the fact that "real estate" business was one of the ventures of the partnership during the year 1970. What was leased out, was only the vacant building without specifying as to what specific business purpose the building was leased out as to what purpose those furnitures also were leased out.
63. There is no gainsaying of the fact that the clauses in the lease deed are antithetical to one another. Certain excerpts from the lease deed would run thus:
"1. This lease shall commence from the date of Registration of this Deed but the Lessee shall be bound to pay a monthly rent of Rs.6,000/- (Rupees six thousand only) and the hired charges of Rs.3,000/- (Rupees three thousand only) from the 15th of November 1970 as per the English Calendar month. ........."
64. A mere reading of the aforesaid excerpts would show that the monthly rent for the building was Rs.6000/- and Rs.3000/- for the furnitures and if it is calculated, the yearly rent itself would come to Rs.36,000/- for the furniture. In the list of furnitures-Ex.R2, the total value of the furnitures, was found set out as Rs.38,000/-, which is approximately equal to that of one year's rent. Accordingly I could see no force in the contention of the tenants that the lease is a composite lease. From the list of furniture what one could understand is that, if the lease relating to furnitures continues then the lease amount would abnormally outweigh the value of the furniture and presumably understanding the same alone there was a clause also to the effect that if those furnitures were to be sold by the tenants then there would be no obligation on the part of the tenants to pay the rent at all for the furnitures. As such, it is glaringly and apparently, axiomatically and obviously clear that the furnitures were leased out to the tenants not with any intention that the tenants should use those furnitures for the business of the tenant.
65. The learned counsel for the landlords would highlight the point that the said partnership M/.Seth Gopaladas Kishindas, filed one suit O.S.No.545 of 2010, through its partner Nandlal Kishindas, (who happened to be one among the original partners) and three other persons, namely, (i) Bhavna P.Nichani, (ii) Akhil R Nichani, minor rep.by father and natural guardian Rajesh L.Nichasni and (iii) Rohan P.Nichani, minor rep.by father and natural guardian Prakash B.Nichani, as against the present landlords, seeking the following reliefs:
"(a) to declare the plaintiff is legally lease holder of suit property under the guise of composite lease entered by and between plaintiff and defendants 5 to 13.
(b) Consequential permanent injunction restraining the defendants their agents or any other person or persons, howsoever claiming through them in any manner from interfering with the right of peaceful possession, occupation and enjoyment of the suit property by the plaintiffs' and their tenants;
(c) For a mandatory injunction to attorn the lease hold rights in favour of the plaintiff under the sale deed in favour of defendants 1 to 4. ....or in the alternative permit the plaintiffs to ............."
(extracted as such)
66. Without any fear of contradiction, the learned counsel for the landlords would submit that the said suit was dismissed for default; whereas, the learned counsel for the plaintiffs therein, who is also the counsel for the tenants herein would submit that an application has been filed to get the suit restored.
67. Be that as it may. This Court, as of now is concerned with the competence of the authorities under the Rent Control Act to decide the matter. When the tenants are pleading exemption under Section 30(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, the authorities under the Act are fully competent to decide on that and the hierarchy of Courts under the Rent Control Act need not wait for any finding of the civil Court.
68. The learned Senior counsel's arguement based on ground No.(2) in the C.R.P.No.922 of 2012 is that there was no landlord and tenant relationship between the petitioners in the RCOP and the respondents therein. He would also submit that there was no attornment of tenancy etc.
69. I cannot countenance and uphold such arguement of the learned Senior counsel for the reasons infra. So far the proceedings under the Tamil Nadu Buildings (Lease and Rent Control) Act are concerned, attornment of tenancy by the tenants in favour of the new landlords, who stepped into the shoes of the old landlords, by virtue of the former having purchased from the latter, would not arise for the reason that the statue pre-supposes and presumes such relationship.
70. The learned Senior counsel would submit that his clients are not disputing the title of the demised premises with the landlords, but that his clients are disputing the landlord and tenant relationship as alleged by the petitioner in the RCOP.
71. My considered view is that such a distinction is one that of tweedledum and tweedledee; between rock and a hard place; between six of the one and half a dozen of the other and not one between chalk and cheese. A person who purchases a demised premises from the original landlord steps into the shoes of the original landlord and thereby automatically he is entitled to receive the rent from the tenant concerning the demised premises.
72. At this juncture, the definition of 'landlord' as contained in sub section 6 of Section 6 of the Tamil Nadu Buildings (Lease and Rent Control) Act could be extracted hereunder for ready reference:
"2(6) "landlord" includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent if the building were let to a tenant;"
73. Hardly could it be denied that a plain reading of the above would indicate and convey that the very right of an individual to get rent from the tenant, who is in occupation of it would be sufficient to label him or dub him as the landlord.
74. There is no going back on the part of the tenants that the present landlords, namely, the petitioners in the RCOP are the ones who acquired title from the previous landlords, in such a case, the right of the present landlords to receive rent is presumed under law and no more elaboration in this regard is required.
75. Accordingly I am of the view that absolutely there is no jot or pint of evidence in favour of the tenants to oppose the RCOP and accordingly, I could see no perversity or illegality in the orders passed by both the Courts below.
76. In the result:
(i) Point No.1 is decided to the effect that the lease was for a period of only thirty years and not sixty years and Ex.R4 cannot be construed as one extending the lease upto sixty years.
(ii) Point No.2 is decided to the effect that the lease emerged in favour of the tenants should not be construed as a composite one attracting the exemption under Section 30(iii) of the Act.
(iii) Point No.3 is decided to the effect that the non impleadment of the sub tenants eo nomine is not fatal to the RCOP.
(iv) Point No.4 is decided to the effect that even though partnership also was cited as one of the respondents, the other partners were cited eo nomine as respondents and hence, it does not fall foul of the dictum as found enunciated in Chhotelal Pyarelal case (cited supra) and R2 to R7 cited in the RCOP could be treated as partners of the partnership cited eo nomine.
(v) Point No.5 is decided to the effect that there is no perversity or illegality in the order passed by the Courts below.
Accordingly, both the revisions are dismissed. However, in the facts and circumstances of this case, there is no order as to costs. Consequently, connected miscellaneous petition is closed.
gms To
1. The VIII Judge, Court of Small Causes, Chennai.
2. The XVI Judge, Court of Small Causes, Madras