Madras High Court
S.R. Mahendra Raj vs V.A. Gnanaprakasam [Deceased] ... on 16 December, 2006
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. This revision arises out of the Order of removal of the Petitioner/obstructor in M.P. No. 187/2005 in E.P. No. 160/1998 in RCOP No. 2244/1992 confirmed by the Appellate Authority in RCA No. 113/2006, on the file of the VII Judge, Small Causes Court [Appellate Authority], Chennai.
2. Facts which led to the revision are as follows:
2.1. The demised premises is a non-residential premises bearing No. 139, Murugan Avenue Road, Madras-10. The late first Respondent has obtained an Order of eviction in RCOP No. 2244/1992 on 24.08.1994 against the fifth Respondent. The fifth Respondent has not preferred any appeal. The learned Counsel filed E.P. No. 160/1998 to execute the Order of eviction. In the execution proceedings, the fifth Respondent filed M.P. No. 125/1999 under Section 47 CPC and the same was dismissed. Against the dismissal of that Petition, the fifth Respondent/Tenant has filed CRP No. 1461/2003 and the same was dismissed on 16.08.2004, awarding exemplary cost of Rs. 2,000/-.
2.2. After the disposal of the said CRP, the Bailiff was again taken for executing warrant on 17.03.2005. At that time, the Petitioner, who is none other than the brother of the fifth Respondent, has obstructed delivery of possession and hence, the landlords filed Petition under Order 21 Rule 97 CPC for removal of obstruction. The Revision Petitioner resisted that application contending that only the partnership firm "M/s. Power and Protectors" is the Tenant and not Surendraraj (the fifth Respondent).
2.3. Observing that mentioning of the name M/s. Power & Protector in the lease deed would not confer status of Tenant upon the Firm, the Rent Controller negatived the contention of the obstructor. Finding that the Tenant and the obstructors are own brothers and it is improbable that the Petitioner/obstructor would not have known about the eviction Order, the learned Rent Controller ordered removal of obstruction. The same was confirmed by the Appellate Authority. The concurrent Order of removal of obstruction is challenged in this Revision Petition.
3. Placing reliance upon various decisions, the learned Counsel for the Revision Petitioner submitted that the Courts below have not properly considered the application for removal of obstruction. The learned Counsel for the Revision Petitioner interalia raised the following contentions:
Right from the inception, only the firm "M/s. Power & Protector" was the Tenant and the Lease Deed would also show that the Firm is the Tenant. Rent has been paid only from the accounts of the partnership firm;
Decree Holder has the knowledge that the partnership firm is carrying on business and while so, erroneously obtained eviction Order against Surendraraj.
When the firm was the Tenant and not the individual, Petition filed against the individual is not maintainable Chokkani v. Bhupendra N. Patel and Ors.
4. Countering the arguments, the learned Counsel for the Respondents/landlords submitted that only the fifth Respondent was the Tenant and the fifth Respondent had been obstructing delivery of possession in various stages. It was further submitted that the Petitioner has been set up only at the instance of the fifth Respondent to further delay delivery of possession.
5. The Petitioner is none other than the brother of the Tenant - the fifth Respondent Surendraraj. There is no dispute that Notice was issued to Surendraraj and Order of eviction was passed against the fifth Respondent. When the Petitioner is the brother of the fifth Respondent, it is quite unbelievable that the Petitioner was not aware of the eviction Order.
6. It is pertinent to note that the fifth Respondent had been hotly contesting the matter. Order of eviction passed on 24.08.1994 had become final. When execution Petition was filed, to take delivery, the fifth Respondent has filed M.P. No. 125/1999 under Section 47 CPC contending that the Decree has become inexecutable. As against the Order of the said Petition, the fifth Respondent Surendraraj has filed CRP No. 1461/2003. Observing that the matter had become final, in the sense that the eviction Order has not been challenged and that it would not be open to the Petitioner to further challenge the eviction Order in the execution stage, the said CRP was dismissed with exemplary cost of Rs. 2,000/- payable by the fifth Respondent Surendraraj.
7. After the dismissal of the said revision, warrant of delivery was issued. When the Decree Holder went to the premises accompanying the Bailiff to execute the warrant on 17.03.2005, the Revision Petitioner/Mahendra Raj obstructed delivery of possession. The Petitioner has stated that "he is carrying on business and that the firm M/s. Power & Protector is only the Tenant."
8. The learned Counsel for the Petitioner mainly contended that right from the inception of tenancy, only the partnership firm was the Tenant and that the rent was paid from out of the accounts of the firm. He has drawn the attention of the Court to the deed of partnership dated 01.01.1988 entered into between one Ramdas, Surendraraj and the Revision Petition Mahendraraj. The business of the partnership is servicing all types of batteries and attending to auto electrical works. The business is carried on in the name of M/s. Power & Protector. The firm is also registered with the Registrar of Firms.
9. The Lease Deed dated 15.07.1986 was between the late first Respondent and the individual Surendraraj. As per Clause 5 of the Lease Deed, "the lessee shall run the business in the name and style M/s. Power & Protector in the leased out premises." The Lease Deed was entered by the individual Surendraraj and no where the firm is stated to be the Tenant.
10. Lessee is Surendraraj and not the firm M/s. Power & Protector. No doubt in Clause 5 it is stated that the lessee was running the business in the name and style of M/s. Power & Protector in the leased out premises. Reference to the nature of business to be conducted in the demised premises would not confer the status of Tenant on the Firm. There is no merit in the contention that from Clause 5, Court is to infer that the firm was the Tenant.
11. To show that the firm was running business, on behalf of the Petitioner, communication from the Office of Commissioner of Commercial Tax Office, assigning registration number has been produced. Certificate issued by ICICI Bank showing that M/s. Power & Protector is maintaining current account in Purasawalkam Branch is also produced. The said documents would not prove that the firm is the Tenant. Contending that the firm was the Tenant and not the individual and that the eviction Petition filed against the individual is not maintainable, the learned Counsel for the Petitioner placed reliance upon 2002 (3) SCC 626 [cited supra]. In the said case, Supreme Court has observed that the conduct of the parties may establish whether individual or partnership firm is the Tenant and in the factual background of the case, the Supreme Court held that the firm could not be appellant or Tenant and in that context, held that the eviction Petition ordered against the appellant was not maintainable. The case on hand stands entirely on different footing. In the present case, the definite case is that under the Lease Deed, individual Surendraraj has entered into lease Agreement with the landlord. Absolutely there is no dispute regarding the identity of the Tenant.
12. After the death of the first Respondent, Surendraraj sent Notice on 01.04.1999, tendering rent from June 1998 to march 1999. In the said Notice, it was stated "that he is the Tenant of the premises having taken the same on lease from the first Respondent since 1994". Again on 27.09.1999, the fifth Respondent Surendraraj has sent Notice affirming that he is Tenant in respect of the premises, having taken the premises from the late first Respondent and only Surendraraj was the Tenant and not the firm.
13. Firm was not the Tenant of the premises and therefore, no valid objection could be taken against the eviction Order passed against the fifth Respondent.
14. Contending that the application filed under Order 21 Rule 97 CPC has not been properly considered and the rights of the stranger ought to have been adjudicated, the learned Counsel for the Petitioner placed reliance upon AIR 1997 SC 856; 2005 (1) SCC 481; 2004 (11) SCC 511. Those decisions have no bearing to the case on hand. In the present case, when obstruction being noticed, the landlords have filed application for removal of obstruction and the same was enquired into and by a well considered Order, the learned Rent Controller has ordered removal of obstruction. Therefore, the Petitioner cannot seek aid from the above decisions.
15. The Petitioner being the own brother of the fifth Respondent, is not justified in saying that he was not aware of the Order of eviction passed against the fifth Respondent. In consideration of the evidence and the materials, the Courts below have rightly observed that the Tenant Surendraraj, after his vain attempts to protract the proceedings, instigated his brother to be an obstructor of the proceedings and the same is to be endorsed. This revision is bereft of merits and is liable to be dismissed.
16. In the result, the Order of the Appellate Authority made in RCA No. 113/2006, on the file of the VII Judge, Small Causes Court, Chennai [confirming the Order made in M.P. No. 187/2005 in E.P. No. 160/1998 in RCOP No. 2244/1992, XV Judge, Court of Small Causes, Chennai], is confirmed and this Revision Petition is dismissed. No costs. Consequently, CMP is also dismissed.