Bangalore District Court
M/S Square Projects Associates vs The Manager on 31 January, 2022
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 31st day of January, 2022.
O.S.No.15626/2006
Plaintiff:- M/s Square Projects Associates,
A partnership firm having
Its registered office at
3-6-100/1, West Maradepaly,
Secunderabad,
Andra Pradesh.
Rep. by its Managing Partner,
M. Ravinder, through his
General Power of Attorney holder:
L Manjunath, Major.
[By Sri. HSS-Adv.]
V/s
Defendant:- 1. The Manager,
Binny Show Room,
No.101 & 102,
Andrews Building, M.G.Road,
Bangalore-560 001.
2. Binny Show Room,
No.101 & 102,
OS No.15626/2006
2
Andrews Building, M.G.Road,
Bengaluru-560 001.
A Company incorporated
Under Indian Companies Act,
Having its registered office
at No.25, Armenian Street,
Chennai.
Represented by its Deputy
General Manager.
[By Sri. L. S Mohan, Adv. For D-1)
(Sri. P. H Ramalingam, Adv. for D-2)
03.04.2006
Date of Institution of the suit
Nature of the (Suit or pro-note, suit
for declaration and possession, suit Ejectment
for injunction, etc.)
Date of the commencement of 27.01.2012
recording of the Evidence.
Date on which the Judgment was
31.01.2022
pronounced.
Year/s Month/s Day/s
Total duration 15 09 28
LXXII ADDL.CITY CIVIL AND SESSIONS
JUDGE,
Mayohall Unit: Bengaluru.
OS No.15626/2006
3
JUDGMENT
This suit is filed by the Plaintiff initially against the Defendant No.1 seeking directions to the Defendant No.1 to vacate and handover the vacant possession of the suit schedule premises and to pay arrears of rents of Rs.60,000/- and damages at the rate of Rs.25,000/- per month, from the date of the suit till vacation of the premises.
Subsequently, Defendant No.2 was got impleaded in this suit.
2. Facts of the Plaintiff's case are as under:
It is the case of the Plaintiff that, it is the absolute owner of the Suit Schedule Property. The property consist of several commercial premises on the ground and the 1 st floor, all of which are collectively known as "Andrews Building". The premises Nos.101 and 102, morefully described in the Schedule annexed to the Plaint was leased to the Defendant for commercial purpose. The tenancy is in accordance with in English calender and the monthly rentals of the premises is Rs.5,000/-.
Mrs. O'Leary, the erstwhile owner died on 01.12.1986. Her niece Caroline Webb, leaving in OS No.15626/2006 4 United Kingdom applied for grant of Letters of Administration U/Sec.278 and 300 of Indian Succession Act. The same were granted on 11.04.2001. By virtue of a Registered Sale Deed dtd.26.03.2003 the said Mrs. Caroline Webb sold all the estate of O'Leary, so inherited by her, to the Plaintiff. The Defendant was apprised of this sale, vide Letter dtd.31.03.2003 and was requested to pay rents to it, but the Defendant failed to pay the rents to it, despite the attornment. It has issued legal notice dtd.19.01.2005 terminating the tenancy, with a instructions to hand over the vacant possession of the Schedule premises by the end of February-2005.
The said notice was issued on 21.01.2005. He has issued untenable reply and refused to comply the said demand. He is also in arrears of rent to the tune of Rs.60,000/-. Thus, it was constrained to file the present suit for ejectment. Hence prayed to decree the said suit.
3. Suit summon was issued to the Defendant No.1. Defendant No.1 has appeared through his Counsel on 03.07.2006 and filed his Written Statement on 30.07.2006.
OS No.15626/2006 5
4. The Defendant No.1 in his Written Statement contends that, there is no relationship of landlord and tenant inbetween him and the Plaintiff, so the suit of the Plaintiff is misconceived and liable to be dismissed, in limine.
Further contends that, he is only a Manger of Binny showroom, being run by Binny Limited, a Company incorporated under the Indian Companies Act, and having its Registered office at No.65, Armenian Street, Chennai and a Branch office and a factory at Agraharam Road, Bengaluru. The said Binny Ltd., is a distinct legal entity of which the Defendant is only an employee, and as such the suit is not properly framed, hence the same is not maintainable against him.
Further contends that, Plaintiff is not a registered Partnership firm and is not entitle to maintain the above suit. Sri. Ravinder, who has signed the plaint is not duly authorized, as per law and hence the suit is liable to dismissed with exemplary costs.
Further denies that, the Plaintiff is the absolute owner of the Suit Schedule Property. Shop Nos.101 and 102 were taken on rent by the said Binny Ltd., OS No.15626/2006 6 to run its showroom from the owner of the Schedule property Mrs. O'Leary and the said showroom is being run by the said Binny Ltd., for past 50 years. Mrs. O'Leary passed away in the year 1986 and thereafter the property has been the subject matter of several litigation before several Courts.
Further denies that, letter of administration have been granted to Mrs. Webb, so also the Plaintiff has became the owner of the property by virtue of the Sale Deed, said to have been executed by the said Mrs. Webb. Mrs. Webb had no power to sell the property to any one, muchtheless to the Plaintiff herein. It is false for the Plaintiff to contend that, it has apprised about purchase of the property by its letter dtd.31.03.2003. The allegation made in the letter dtd.21.01.2005 has been suitably replied to by the said Binny Ltd., Further there is no any arrears of rents, as alleged by the Plaintiff. There is no cause of action for the Plaintiff to file the present suit and the notice dtd.21.01.2005 is completely defective and not as per the provisions of law. The termination of tenancy, if any, is illegal, not in accordance with law. So the suit is liable to be dismissed. Plaintiff is not entitle for the reliefs, as sought for by it. Plaintiff OS No.15626/2006 7 has not properly valued the Suit Plaint and have paid Court fees, as per law.
5. On the basis of the above said pleadings, my Learned predecessor in office, has framed the following issues on 09.06.2008, as under:
ISSUES
1. Does the Plaintiff prove that the Defendant is his tenant?
2. Does the Plaintiff prove that he terminated the tenancy of the Defendant?
3. Does Plaintiff prove that the Defendant is due in a sum of Rs.60,000/- towards arrears of rent?
4. Does the Defendant prove that this suit is not maintainable for the reasons stated in Para 1(b) of the Written Statement?
5. Does the Plaintiff prove that he is entitled for damages at the rate of Rs.25,000/- per month from the Defendant?
6. What decree or order?
OS No.15626/2006 8
6. The Plaintiff got examined its Power of Attorney holder as PW1 and got marked 11- document, as Ex.P1 to Ex.P11. PW. 1 was cross examined on behalf of the Defendant No.1 on 12.07.2010. The Defendant No.1 failed to lead his evidence. Hence evidence of the Defendant No.1 is taken as 'Nil' and matter came to be posted for Arguments.
On hearing the Arguments from both the sides, the suit of the Plaintiff came to be dismissed with costs on 02.06.2011.
Thereafter as per the orders of the Hon'ble High Court of Karnataka, in RFA No.14001/2011 dtd.23.08.2011, matter came to be restored and remanded back.
Plaintiff filed an application at IA No.5 U/Or 1 Rule 10 of CPC to implead the Proposed Defendant. IA No.5 came to be allowed on 11.01.2012. Since the amendment was not carried out to the Suit Plaint and on failure to pay cost as ordered, IA No.5 came to be ordered to be dismissed on 13.01.2012. The said order came to be recalled, as per Orders on IA No.6 dtd.24.01.2012.
OS No.15626/2006 9
7. Plaintiff filed affidavit of PW.1 in lieu of further examination- in -chief of PW.1.
8. There was a direction from the Hon'ble High Court of Karnataka in WP Nos.3192-93/2012 dtd.15.06.2012 to reconsider and passed Orders on IA No.5 filed U/Or. 1 Rule 10 of CPC and to dispose the matter within a period of six months. The same is noted in the ordersheet dtd.04.07.2012.
On 16.11.2012 since there was no representation from the Plaintiff the suit of the Plaintiff came to be dismissed.
9. On 19.01.2013 Plaintiff filed an application at IA No.7 U/Or 9 Rule 4 R/w Sec.151 of CPC praying to set aside the order dismissing the suit for default dtd.16.11.2012. On hearing both the parties IA No.7 came to be allowed on 12.07.2019. And matter was taken for hearing on IA No.5. Notice of IA No.5 was issued to the proposed Defendant No.2. On hearing both the sides IA No.5 came to allowed in part on 21.09.2019 and the proposed Defendant was ordered to be impleaded as the Defendant No.2.
OS No.15626/2006 10
10. On 23.10.2019 the Learned Counsel for the Defendant No.2 contended that, a fresh suit summons of the amended Suit Plaint is to be issued to the Defendant No.2, as his earlier appearance was for a limited purpose, i.e., only for adjudication of the application at IA No.5. Turning down such contention of the Learned Counsel for the Defendant No.2, the Learned Counsel for the Defendant No.2 was requested to take notice of the amended Suit Plaint. Inspite of affording sufficient opportunity, the Defendant No.2 failed to file his Written Statement. Hence Written Statement of Defendant No.2 was taken as 'Not filed' on 28.11.2019.
The Plaintiff filed an application at IA No.3/2019 and sought the permission to lead the evidence of the subsequent Power of Attorney holder, as PW.2, which came to be allowed on 02.01.2020. The Plaintiff filed the affidavit of the subsequent Power of Attorney holder, which was treated as examination - in - chief as PW.2, and got marked 5 documents, as Ex.P12 to Ex.P16.
The Defendant No.2 filed an application at IA No.1/2020 U/Or 3 Rule 2 R/W Sec 151 of CPC praying to permit the Defendant No.2 to get itself OS No.15626/2006 11 represented by its Power of Attorney holder. The same was allowed on 24.01.2020.
Defendant No.2 filed its Written Statement. And contended that, the suit of the Plaintiff is maintainable either in law or on facts. The present suit was originally filed against the Defendant No.1. On full dressed trial, the suit came to be dismissed. Being aggrieved by the same, the Plaintiff preferred Regular First Appeal before the Hon'ble High Court of Karnataka at RFA NO. 1401/2011, wherein this Defendant was not made party. The Hon'ble High Court by its Order dated:
23.08.2011 allowed the Appeal, set-aside the impugned Order and remanded the matter for reconsideration. This Defendant was not served with the notice of the said Appeal RFA No. 1401/2011, however without hearing this Defendant the matter came to be remanded to the Trial Court. No fair opportunity was given to this Defendant. The Honb'le High Court has not permitted the Plaintiff to implead or change/ alter the party to the above suit.
The observation makes its clear and restricted only to putforth the case of the Plaintiff properly. But this Defendant was impleaded as Defendant No 2, which OS No.15626/2006 12 is against the settled principles of law, facts and circumstances of the case. So the suit is liable to be dismissed.
Further contends that notice of IA no 5 was issued by this Hon'ble Court for limited purpose to adjudicate, as to whether the person named in the application is a necessary party or not, in the suit. The Court having concluded that the proposed Defendant is necessary party, the Court ought to have issued a fresh Suit Summon to the Defendant No 2, but the same has not been done.
Further contends that a Scheme of Arrangement dated 22.04.2010 was made amongst Binny Limited, S V Global Limited, which was sanctioned by the Hon'ble High Court of the Judicature of Madras in COP Nos 66-68/2010. The said Scheme was sanctioned effective from 01.01.2010. Interms of the said scheme, Binny Limited was remerged and this Defendant and the said S V Global Limited were the Resulting Companies-II and I, respectively; and by virtue thereof, this Defendant became entitled to run its business in the Suit Schedule Property. Binny Limited have been running its business for over 60 years.
OS No.15626/2006 13 Further contends that, the Plaintiff is not a registered Partnership Firm and hence not entitle to maintain the suit. Unless documents are produced before filing of the suit, the suit becomes non-est and hence liable to be dismissed.
Further contends that Plaintiff is not the owner of the Suit Schedule Property and it is not the tenant under the Plaintiff, in respect of the Suit Schedule Property. As such there is no jural relationship of landlord and tenant, inbetween the Plaintiff this Defendant. Hence, question of seeking the relief of vacating this Defendant from the Suit Schedule Property; claiming the relief of arrears of rent and damages, does not arise at all. Further contends that, Plaintiff has not properly described the Suit Schedule Property, in respect of its measurements and boundaries, Further contends that, there are several litigations pending in respect of the Suit Schedule Property, in one of the suit bearing No. 15595/2006, wherein the present Plaintiff is the Defendant No.1, has suppressed the said litigation before this Court. Further contends that, the vendor of the Plaintiff had no right, title or interest over the Suit Schedule OS No.15626/2006 14 Property, including other portions thereof, to convey the same in favour of the Plaintiff, as interim order was operating in P & SC No. 26/2001, during the time of execution of the alleged Sale Deed dated:
26.03.2003. The claim of the vendor of the Plaintiff that, she has become successor in view of the Probate granted in P & SC No. 26/2000, was stayed in Misc. Petition No.224/2002. The document brought into existence inbetween the Plaintiff and its vendor is shady document; and the transaction taken place under the said document is against the Order of the Courts of law.
Further contends that, M/s. Andrews Development and Investment Enterprises has filed a suit against the present Plaintiff for the relief of cancellation of Sale Deed dated: 26.03.2003, in O.S.No. 15595/2006, the same is pending for adjudication. So the alleged Sale Deed dated:
26.03.2003 is a tainted one and still under judicial scrutiny.
Further contends that, the alleged Legal Notice dated: 19.01.2005, was not addressed to the Defendant and consequently, it is denied that, this Defendant is an unauthorized occupant of the Suit OS No.15626/2006 15 Schedule Property. Further, issuance of such notice as not fulfilled the requirements of Sec. 106 of Transfer of Property Act. Thus, suit of Plaintiff is liable to be dismissed.
Further contends that, it is the duty of the Plaintiff to disclose all the material facts, to seek the reliefs claimed in the suit. But, the Plaintiff has filed to disclose all the material facts, in this case.
There is no cause of action. The one alleged is illusory. Plaintiff not properly valued the Suit Plaint and as to failed to pay Court fee..
Thus, prays to dismiss the suit of the Plaintiff.
10.A. In view of filing of Written Statement by the Defendant No.2, Issue Nos.1, 2, 4 and 5 have been recasted as under:
RECASTED ISSUES
1. Does the Plaintiff prove that, Binni Showroom is its tenant?
2. Does the Plaintiff proves that, it has terminated the tenancy of Binni Showroom?
4. Does the Defendants prove that, suit of the Plaintiff is not OS No.15626/2006 16 maintainable, as it is not a registered partnership firm?
5. Does the Plaintiff proves that, it is entitle for damages @ Rs.25,000/- per month from Binny Showroom?
11. PW.2 was cross examined on behalf of the Defendant No.1 on 25.02.2020; and on behalf of Defendant No.2 on 02.02.2021, 23.03.2021 and 15.04.2021.
The Defendant No.1 has led his evidence as DW.1 and did not produce any documents in his defence. DW.1 was cross examined on behalf of the Plaintiff on 03.08.2021. Cross examination of DW.1 by Defendant No.2 was taken as 'Nil' on 03.08.2021.
Inspite of affording sufficient opportunity, Defendant No.2 has failed to lead its evidence. Hence evidence of Defendant No.2 was taken as 'Nil' on 13.09.2021 and the matter came to be adjourned for Arguments.
12. Heard the Arguments of the Learned Counsels for the Plaintiff, the Defendant Nos.1 and 2, respectively.
OS No.15626/2006 17 The Learned Counsel for the Defendant No.2 has filed his written argument and has placed reliance on 20 decisions viz.,
1. Judgment passed by the Hon'ble Chattisgarh High Court in the case of Surjmania Vs. Bharat Ram & Anr in M.A.No.35/2014, decided on 03.10.2016.
2. Judgment passed by the Hon'ble Supreme Court in the case of Vinod Kumar Subbaiah Vs. Saraswathi Palaniappan, in Civil Appeal No. 5511- 5512/2014 decided on 24.04.2015.
3. Judgment passed by the Hon'ble Supreme Court in the case of Udhav Singh Vs. Madhav Rao Scindia, reported in AIR 1976 SC 744.
4. Judgment passed by the Hon'ble Supreme Court in the case of Shri.H.D.Vasnishta Vs. Ms. Glaxo Laboratories (I) (p) Ltd, reported in (1978) I Supreme Court Cases 170.
5. Judgment passed by the Hon'ble Supreme Court in the case of Ram Surup (Dead) by Lrs Vs. Bishum Narian Inter College & Ors, reported in AIR SC 1242.
6. Judgment passed by the Hon'ble Supreme Court in the case of Nandkishore Lalbhai Mehta Vs. New Era Fabrics P. Ltd & Ors, in Civil Appeal No. 1148/2010 decided on 08.07.2015.
7. Judgment passed by the Hon'ble High Court of Karnataka in the case of OS No.15626/2006 18 Sri.Anantswami Vs. Smt. Radha Srinath and another, reported in LIR 2010 KAR 2204.
8. Judgment passed by the Hon'ble High Court of Karnataka, in the case of T.L. Nagendra Babu Vs. Manohar Rao Pawar, reported in ILR 2005 KAR 2204.
9. Judgment passed by the Hon'ble Supreme Court in the case of State of Rajasthan Vs. Rao Kalyan Singh, (Dead by his Lrs, reported in AIR 1971 SC 2018.
10. Judgment passed by the Hon'ble Supreme Court in the case of Maria Margadia Sequeria Vs. Erasmo Jack De Sequeria (D) in Civil Appeal No. 2968/2013 (Arising out of SLP ( C) No.15382 of 2009 decided on 21.03.2012.
11. Judgment passed by the Hon'ble Supreme Court in the case of A.Shanmugam Vs. Ariya K.R.K.M.N.P.Sangam, in Civil Appeal Nos.4012-4013/2012 arising out of S.L.P.(C) Nos.14163-14164/2012 arising out of CC Nos. 21115-21116/2011, decided on 27.04.2012.
12. Judgment passed by the Hon'ble High Court Calcutta High Court in the case of Neogi Ghose & Co. Vs. Sardar Nahalsing and another, reported in AIR 1931 Calcutta 770.
13. Judgment passed by the Hon'ble High Court of Karnataka in the case of State of Karnataka and Ors. Vs. M.Muniraju, reported in ILR 2002 KAR 2923.
OS No.15626/2006 19
14. Judgment dated: 06.03.1990 passed by the Hon'ble High Court of Delhi, in the case of Ms. Nibro Limited Vs. National Insurance Co.Ltd.
15. Judgment dated: 22.02.2011 passed by the Hon'ble Supreme Court in Civil Appeal No. 2013 of 2011 in the case of State Bank of Travancore Vs. Kingston Computers India Private Limited.
16. Judgment dated: 31.01.2000 passed by the Hon'ble High Court of Delhi, in the case of Rajghria Paper Mills Ltd. Vs. The General Manager, Indian.
17. Judgment dated: 23.12.2015 passed in CS(OS)No.3397/2014 by the Hon'ble High Court of Delhi, in the case of Ms. Sai Nath Enterprises & Ors Vs. North Delhi Municipal.
18. Judgment passed by the Hon'ble Kerala High Court of Karnataka in the case of Ms. Khandelwal Brothers Co. Ltd., Vs. G.S.Nisar Ahmed, reported in ILR 2004 KAR 2864.
19. Judgment passed by the Hon'ble High Court of Karnataka in the case of Ms. Khandelwal Brothers Co.Ltd., Vs. G.S.Nisar Ahmed, reported in ILR KAR 2864.
20. Judgment passed by the Hon'ble High Court of Karnataka in the case of The Karnataka Handloom Development Corporation Limited., Rep., by its Chief Manager P. Padmanabhaiah Vs. Mandya Dist Central Coperative Limited., Rep by OS No.15626/2006 20 its Director Secy., reported in ILR 2009 KAR 3838.
I have carefully gone through the Written Arguments and decisions relied on behalf of the Defendant No.2.
13. My findings on the above said issues are as under:
Recasted Issue No 1:In the Negative; Recasted Issue No 2:In the Negative;
Issue No 3 : In the Negative;
Recasted Issue No 4: Partly in the Affirmative;
Recasted Issue No 5: In the Negative;
Issue No 6 : As per final order for the
following
:R E A S O N S:
14. As per the contentions of the parties to the Lis, the admitted facts are as under:
a) Mrs O'Leary was the owner of the property, inoccupation of the Binny Ltd Company;
b) Binny Ltd Company was the tenant under Mrs. O'Leary;
c) Binny Ltd Company is running a Binny showroom in the Shop Nos.101 and 102; and
d) Mrs. O'Leary died in the year 1986.
OS No.15626/2006 21
15. RECASTED ISSUE NOS. 1 & 2:
Since both these Issues are interrelated to eachother, they are taken for joint discussion, inorder to avoid repeatation, confusion and to have brevity in the discussion.
The Plaintiff in Para No.1 of the Suit Plaint contends that, Suit Schedule Property was leased to the Defendant for commercial purpose.
Originally suit is filed by the Plaintiff against the Manager, Binny Showroom, No.101 and 102, "Andrew's Building", MG Road, Bengaluru.
15.01. The Learned Counsel for the Plaintiff would contend that, the Manager Binny showroom is the representative of Binny Ltd., Company, who is occupation of the Suit Schedule Property.
15.02. Percontra, the Learned Counsel for the Defendant No.1 contends that, he is a Manager and not the Managing agent of Binny Ltd.,. So he is not the proper party to this suit, as no transaction of lease has been taken place with the Manager of Binny Showroom; and the said Manager cannot be charged under the transaction of lease.
OS No.15626/2006 22 15.03. The Learned Counsel for the Defendant No.2 would contend that, firstly, Binny Showroom is not a legal entity; secondly, the Defendant No.2 has been impleaded subsequently; thirdly, no any notice of either attornment, or of termination is issued to the Defendant No.2; and fourthly, on impleading the Defendant No.2 neither the Suit Plaint has been got amended, bringing certain material facts against the Defendant No.2, nor any relief is sought for against the Defendant No.2.
The Learned Counsel for the Defendant No.2 further contends that, basic material facts where required to be pleaded by the Plaintiff in the suit, but the same has not been pleaded by it. In the absence of basic material facts, to be pleaded by the Plaintiff, the suit has to fail. He has placed his reliance on the below mentioned decisions viz.,
a) of the Hon'ble Apex Court, in the case of Udhav Singh V/s Madhav Rao Scindia, reported in AIR 1976 SC 744, wherein it is observed in Para Nos.32 and 33, as under:-
"32. In our opinion, the correct way of construing Para 11(iv) is to take it as it stands, and read it not in parts but as a OS No.15626/2006 23 whole together with its preamble and the rest of the pleading. Thus read, the relevant allegation in clause (iv) of Para 11 would fairly and clearly admit of only this construction:
"That on or before 22-2-71, Shri Mohan Prasad Ojha, a Congress Worker and elector of village Umri (Tehsil Guna) was threatened at pistol point with dire consequences by Shri Shiv Partap Singh and others of Umri, the workers of the respondent with his consent, not to vote and canvass in favour of the Congress Candidate, Deorao Krishnarao Jadhav."
33. In our opinion, this is the only reasonable construction that the language of Para 11(iv) without undue stretching, straining and twisting, can bear. Indeed, from the relevant portions of the pleadings extracted earlier in this judgment, it is evident that both the parties, including the petitioner, had understood the allegations in Para 11(iv) in the sense in which we have construed them. It was only after the presentation of the application, dated 3- 8-72, raising the objection, the petitioner in an attempt-as the High Court rightly put it-"to wriggle out from the unfortunate position he was placed in not making Shiv Pratap Singh a party", has started claiming the antic interpretation quite different from the one flowing from the plain language and tenor of Para 11(iv).
We have therefore no hesitation in repelling the second contention also, canvassed on behalf of the appellant."
OS No.15626/2006 24
b) of the Hon'ble Apex Court, in the case of Shri H. D Vashishta V/s M/s Glaxo Laboratories, reported in (1978) 1 SCC 170, wherein it is held that;
"The lac of the material fact in the averments in the plaint is sufficient to dismiss the suit as not disclosing a cause of action. This is precisely what the High Court has done. We agree. Therefore we dismiss the appeal."
c) of the Hon'ble Supreme Court of India, in the case of Ram Sarup Gupta (dead) by Lrs V/s Bishun Narain Inter College & Ors., reported in 1987 AIR 1242, wherein it is observed in Para Nos.4.1 and 4.2, as under:-
"4.1 In the absence of pleadings, evidence, if any, produced by the parties cannot be considered. No party should be permitted to travel beyond its pleadings and all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings, however, should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair-spliting technicalities.
OS No.15626/2006 25 Sometimes pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case, it is the duty of the Court to ascertain the substance of the pleadings, to determine the question. It isnot desirable to place undue emphasis on form; instead, the substance of the pleadings should be considered.
4.2 Whenever the question about lack of pleadings is raised, the enquiry should not be so much about the form of the pleadings; instead, the court must find out whether in substance the parties knew the case and the issues. Once it is found that inspite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, it would not be open to a party to raise the question of absence of pleadings in appeal."
d) of the Hon'ble Supreme Court of India, in the case of Nandkishore Lalbhai Mehta V/s New Era Fabrics Pvt. Ltd., & Ors., in Civil Appeal No.1148 of 2010, wherein it is observed in Para No.7, as under:-
"It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contain the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at OS No.15626/2006 26 issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad and Ram Sarup Gupta referred to above and several other decisions of this Court following the same cannot be construed as diluting the well-settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo motu".
17. Therefore, it is the duty of the court to examine whether the documents produced in the court or contents thereof have any probative value".
e) of the Hon'ble Supreme Court, in the case of Maria Margadia Sequeria V/s Erasmo Jack De Sequeria (D), in Civil Appeal No.2968/2012, OS No.15626/2006 27 wherein it is held at Para Nos.69 to 79 and conclusion at Para No.100, as under:-
"69. The person averring a right to continue in possession shall, as far as possible, give a detailed particularized specific pleading along with documents to support his claim and details of subsequent conduct which establish his possession.
70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.
(a) who is or are the owner or owners of the property;
(b) title of the property;
(c) who is in possession of the title documents
(d) identity of the claimant or claimants to possession;
(e) the date of entry into possession;
(f) how he came into possession
- whether he purchased the property or inherited or got the same in gift or by any other method;
(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;
(h) If taken on rent, license fee or lease -
then insist on rent deed, license deed or lease deed;
OS No.15626/2006
28
(I) who are the persons in
possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;
(j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and
(k) basis of his claim that not to deliver possession but continue in possession.
71. Apart from these pleadings, the Court must insist on documentary proof in support of the pleadings. All those documents would be relevant which come into existence after the transfer of title or possession or the encumbrance as is claimed. While dealing with the civil suits, at the threshold, the Court must carefully and critically examine pleadings and documents.
72. The Court will examine the pleadings for specificity as also the supporting material for sufficiency and then pass appropriate orders.
73. Discovery and production of documents and answers to interrogatories, together with an approach of considering what in ordinary course of human affairs is more likely to have been the probability, will prevent many a false claims or defences from sailing beyond the stage for issues.
74. If the pleadings do not give sufficient details, they will not raise an issue, and the Court can reject the claim or pass a decree on admission.
OS No.15626/2006 29
75. On vague pleadings, no issue arises. Only when he so establishes, does the question of framing an issue arise. Framing of issues is an extremely important stage in a civil trial. Judges are expected to carefully examine the pleadings and documents before framing of issues in a given case.
76. In pleadings, whenever a person claims right to continue in possession of another property, it becomes necessary for him to plead with specificity about who was the owner, on what date did he enter into possession, in what capacity and in what manner did he conduct his relationship with the owner over the years till the date of suit. He must also give details on what basis he is claiming a right to continue in possession. Until the pleadings raise a sufficient case, they will not constitute sufficient claim of defence.
77. Dr. Arun Mohan in his classic treatise on "Justice, Courts and Delays" has dealt with these fundamental principles of law exhaustively.
78. The Court must ensure that pleadings of a case must contain sufficient particulars. Insistence on details reduces the ability to put forward a non-existent or false claim or defence.
79. In dealing with a civil case, pleadings, title documents and relevant records play a vital role and that would ordinarily decide the fate of the case.
100. The ratio of this judgment in Sham Lal (supra) is that merely because the plaintiff was employed as a servant or chowkidar to OS No.15626/2006 30 look after the property, it cannot be said that he had entered into such possession of the property as would entitle him to exclude even the master from enjoying or claiming possession of the property or as would entitle him to compel the master from staying away from his own property."
15.04. Coming to the documentary evidence on this point. Initially at the time of filing the suit, the Plaintiff has not produced Lease Deed dtd.12.06.1986, but subsequently certified copy of the said document was produced through PW.2 and the same was got marked as Ex.P13.
On perusal of Ex.P13, certified copy of Lease Deed dtd.12.06.1986, it is seen that, Mrs. O'Leary has leased Shop Nos.101 and 102 to Binny Ltd., a Company registered having its registered Office at No.65, Armenian Street, Madras, represented by its Special Director.
15.05. Coming to the ocular evidence, on this point, more specifically,
a) cross examination of PW.1, at Page No.7, Line Nos. 6 to 8, which reads as under:-
".... It is true that there is no relationship of landlord and tenant OS No.15626/2006 31 inbetween the Plaintiff and the Defendant."
As per this evidence, PW.1 admits that, there is no relationship of landlord and tenant inbetween the Plaintiff and the Defendant.
Cross examination conducted to PW.1 was prior to impleading of Defendant No.2 in this suit. PW.1 claims to be the representative of the Plaintiff admits that, there was no relationship of landlord and tenant with the Plaintiff and the Manager, Binny Showroom, who is shown as the Defendant, originally in this suit.
b) cross examination of PW.2, at Page No.19, Para No.4, which reads as under:-
"It is false to suggest that we do not own the Suit Schedule Property and I do not know as to who is the tenant in the said Property. Witness volunteers that Property is owned by them and Binny Limited is the tenant in the said Property."
As per this evidence, PW.2 contends that, the Suit Schedule Property is owned by the Plaintiff and Binny Ltd., is the tenant in the said property.
15.06. The Learned Counsel for the Defendant No.1 would contend that, under the OS No.15626/2006 32 provisions of the Companies Act, 1956, Manager is an individual personality, subject to the superintendence, control and directions of the Board of Directors, who will be Managing the affairs of the Company.
15.06.01. As per Ex.P13- Lease Deed dtd.12.06.1986, wherein it is seen that, the Plaintiff has entered into a Lease Agreement with the Binny Ltd., Company, shown to be a registered Company. It means Binny Ltd., Company is a registered Company, under the Companies Act, 1956. The provisions of the Companies Act, 1956 will be applicable to the subject Company.
15.06.02. As per Sec.2 (24) of the Companies Act, 1956, wherein the Manager is defined as, "(24) "manager" means an individual (not being the managing agent) who, subject to the superintendence, control and direction of the Board of directors, has the management of the whole, or substantially the whole, of the affairs of a company, and includes a director or any other person occupying the position of a manager, by whatever name called, and OS No.15626/2006 33 whether under a contract of service or not."
15.06.03. As per the above definition, Manager is an individual, but not being a managing agent, who will be engaged in the affairs of the Company under the superintendence, control and directions of the Board of Directors.
So Manager cannot take the place and position of an Managing Agent of a Company, to represent the Company, unless necessary authorization is given to him. Therefore, Defendant No.1 cannot be termed as the authorized representative of the Defendant No.2, to represent the Defendant No.2 Company, in the absence of specified authorization.
15.07. On the basis of documentary evidence, more specifically, Ex.P13-Lease Deed, coupled with oral evidence of PW.1 and PW.2, it can be concluded that, Binny Showroom is not the tenant, but Binny Ltd., Company is the tenant; and Binny Ltd., Company has not authorized the Manager of Binny Showroom, to represent it.
Thus, Plaintiff has failed to prove that, Binny Showroom is its tenant.
OS No.15626/2006 34 Hence, I am constrained to answer RECASTED ISSUE NO.1 IN THE NEGATIVE.
16. The Learned Counsel for the Plaintiff contends that, the Plaintiff has terminated the tenancy of the Defendant by issuing a termination notice dtd.19.01.2005.
16.01. The Learned Counsel for the Defendant No.1 would contend that, since the Defendant No.1 is not the tenant, question of terminating the tenancy does not arise at all. If at all, tenancy of the tenant in the premises is to be terminated, then tenancy of Binny Limited Co., is to be terminated. The said Company is registered, under the Companies Act, 1956, then notice is to be issued to the said Company to its registered office. Unless the same is done, the notice of termination does not assume its significance.
16.02. The Learned Counsel for the Defendant No.2 would contend that, no mandatory notice, as required U/Sec.106 of TP Act, to terminated the tenancy, is issued to the Defendant OS No.15626/2006 35 No.2. And under such circumstances, tenancy of the Defendant No.2 cannot be deemed to be terminated and the suit filed for ejectment, without Notice of termination, is not maintainable. He has placed his reliance five decisions viz.,
a) of the Honb'le High Court of Kerala, in the case of K. P Moosakutty Haji V/s CSI Ascension Church, in RSA No.211 of 2015, wherein it is held at Para Nos.19 and 20, as under:-
"19. To appreciate this contention, certain facts will have to be considered. Admittedly Ext. A5 notices were issued for terminating tenancies with effect from 1.7.2010 The defendants were directed to give vacant possession of the buildings on 1.7.2010 Exts.A6 and A7 in both cases are the postal receipts and acknowledgement cards respectively. Plaintiffs have candidly admitted that there were mistakes, in Ext. A5 notices. Hence they caused Ext. A8 notices to be issued. Case of the plaintiffs is that the same should be treated either as a correction notice or a fresh notice under section 106 TP Act. Ext. A9 evidences the issuance of Ext. A8 notices. Ext. A8 notices were issued only on 6.7.2010 is not a contentious fact. The Trial Court rightly found that Ext. A8 notices cannot be treated as correction notices since the same were issued only on 6.7.2010 for terminating the tenancies with effect from 1.7.2010 In otherwords the notices were issued only on a date after the date intended for termination of tenancy. If we consider Ext.
OS No.15626/2006 36 A8 notices as fresh notices under section 106 TP Act, admittedly they are against the agreed terms in Ext. A4. For these two reasons the plaintiffs cannot contend that they are entitled to the benefit under section 106(3) TP Act. As I have already seen that the defendants, who are tenants holding over the premises, are entitled to get notice under section 106 TP Act for the termination in accordance with the contract to the contrary contained in Ext. A4. By no stretch of reasoning it can be seen that Exts.A5 and A8 notices conformed to the standards prescribed in the existing provisions in section 106 TP Act and the stipulations in Ext. A4. The rigidity of section 106 TP Act, as it originally stood, was relaxed for avoiding untenable contentions regarding the date of termination of tenancy. However, that cannot be capitalized by a landlord when the notice itself is defective and falls short of the standards prescribed by the legal provision. The stipulation in Ext. A4 that tenancy can be terminated by the landlord by issuing a month's notice has not been complied with in this case by sending Exts.A5 and A8. Therefore, I find that the plaintiffs are not entitled to get the benefit of section 106(3) TP Act.
21. The upshot of the discussion is that Exts.A5 and A8 notices do not legally terminate the tenancies in favour of the defendants. Stipulation of issuance of one month's notice in Ext. A4 is a contract to the contrary mentioned in section 106 TP Act. The defendants, who are tenants holding over, are entitled to get a notice under section 106 TP Act in view of the terms and conditions in OS No.15626/2006 37 Ext. A4 and all the conditions in Ext. A4 which are connected with the transactions of lease are incorporated in the statutorily renewed tenancy by holding over. In the result, the appeals are allowed. The judgment and decree passed by the Courts below are set aside. The suits are dismissed. There is no order as to costs."
b) of the Honb'le High Court of Karnataka, in the case of M/s Khandelwal Brothers Co. Ltd., V/s G. S Nisar Ahmed, reported in ILR 2004 KAR 2864, wherein it is held at Para No.8, as under:-
"8. Re. Point No. 1: The Division Bench of this Court in B.S. GIRIDHAR v. P.V. SHETTY, ILR 84 KAR 1115 has held that despite the termination of tenancy under Section 106 of the T.P. Act the tenant would continue to be a statutory tenant within the definition of the Rent Control Act 1961 notwithstanding the fact that eviction of such tenant need not be governed by Section 21 of the Act but for the purpose of his legal status he would be a statutory tenant. The landlord cannot recover damages or mesne profits but can recover only the agreed rents till the date of delivery of possession even in a suit for possession instituted under T.P. Act"
c) of the Honb'le High Court of Karnataka, in the case of The Karnataka Handloom Development Corporation Ltd., V/s Mandya Dist OS No.15626/2006 38 Central Cop Bank Ltd., in Regular First Appeal No.445 of 2001, D/d 17.08.2009, wherein it is held at Para Nos.11 and 12, as under:-
"11. From a reading of the said provision and the case of the plaintiff and from the copy of the order, it is clear to us that the dispute is with regard to touching of business of the respondent-society. Therefore, a notice under Section 125 of the said Act is mandatory before institution of the suit. It is not contended by the learned counsel for the appellant that no such notice was required to be issued by the appellant in order to maintain the suit. Ex.P-11 is a letter addressed by the appellant to the Managing director of the respondent wherein the respondent-defendant is called upon to pay a sum of Rs.2,00,000/- towards the bank guarantee issued on behalf of B.C.Nagaraj of on before 30.6.1990. It further reads that if there is no response before 30.6.1990, the appellant could bring it to the notice of the Department of Co-operation in regard to non- honouring the bank guarantee. The copy of the same is said to have been addressed to the Registrar of Co-operative Societies in Karnataka, Bangalore, but the copy of the acknowledgement for having sent to the Registrar of Co-operative Societies in Bangalore is not produced before the trial court.
12. In view of the contentions in Ex.P- 11, no court can hold that it is a statutory notice as required to be issued under Section 125 of Karnataka Co-operative Societies Act OS No.15626/2006 39 since the appellant has only demanded for the payment of Rs.2,00,000/- from the defendant and it further reads that failing compliance of demand, it would be brought to the notice of the Registrar of Co-operative Societies. Therefore, it is only an intimation to the Registrar of Co-operative Societies as the demand made by the appellant. Even the copy of the acknowledgement for having sent such notice to the Registrar of Co-operative Societies is not placed before the court below. In the circumstance, Ex.P-11 cannot be considered as the statutory notice as required under the Karnataka Co-operative Societies Act. Accordingly, we are of the opinion that the learned trial judge is justified in rejecting the complaint under Order 7 Rule 11 of the CPC."
d) of the Honb'le High Court of Karnataka, in the case of The Karnataka Handloom Development Corporation Ltd., V/s Mandya Dist Central Cop Bank Ltd., in Regular First Appeal No.445 of 2001, D/d 17.08.2009, wherein it is held at Para Nos.11 and 12, as under:-
"11. From a reading of the said provision and the case of the plaintiff and from the copy of the order, it is clear to us that the dispute is with regard to touching of business of the respondent-society. Therefore,
e) of the Honb'le Supreme Court, in the case of State of Rajasthan V/s Rao Raja Kalyan OS No.15626/2006 40 Singh, reported in AIR 1971 SC 2018, wherein it is held at Para No.6, as under:-
"6. Though this issue is not very specific but undoubtedly it covers the plea taken by the respondent in paragraph 1 of his written statement. That apart the plea of maintainability of the suit is essentially a legal plea. If the suit on the face of it is not maintainable, the fact that no specific pleas were taken or no precise issues were framed is of little consequence."
16.03. Coming to the ocular evidence, on the point of issuance of termination Notice-Ex.P11 dtd.19.01.2005, more specifically,
a) cross examination of PW.2, at Page No.11, Para No.5, as under:-
"In this case Ejectment notice was issued by Binny Showroom, M.G. Road, Bengaluru. It is true to suggest that Ejectment notice in this suit was issued to The Manager, Binny Showroom, No. 101 and 102, Andrews Building, M.G. Road, Bengaluru - 560 001.
As per this evidence, PW2 contends that Ejectment notice was issued to the Defendant No 1.
b) cross examination of PW.2, Page No.12, Para No.1, Line Nos.7 to 12, which a OS No.15626/2006 41 "... One Mr. Govindaraj Advocate was handling the matter, when eviction notice as per Ex.P11 was issued in this case. It is true to suggest that except Ex.P11 eviction notice, no other statutory notice is issued in this case. We are asking for eviction inrespect of the property shown as Schedule in Ex.P11."
As per this evidence, PW1 contends that except ExP11 notice, no other termination notice is issued inrespect of the Schedule Property.
c) cross examination of PW.2, Page No.12, Para No.4, which reads as under:-
"No any statutory notice was issued to Binny Limited at any point of time."
As per this evidence, PW2 contends that no any Statutory Notice- Termination Notice was issued to the Defendant No 2.
16.04. As observed supra, as per Ex.P13- Certified copy of Lease Deed, transaction of lease, has been entered into, inbetween Mrs. O'Leary on one hand; and Binny Ltd., Company, a Company registered, having its registered office at No.65, Armenian Street, Madras, represented by its Special Director, on the other hand.
OS No.15626/2006 42 16.05. Sec 51 of the Companies Act, 1956, deals with how service of a document is served on the company, which reads as under:
"Sec 51. A document may be served on a company or an officer thereof by sending it to the company or officer at the registered office of the company by post under a certificate of posting or by registered post, or by leaving it at its registered office :
1[Provided that where the securities are held in a depository, the records of the beneficial ownership may be served by such depository on the company by means of electronic mode or by delivery of floppies or discs.]."
As per Sec 2(15) of the Companies Act, 1956, document is defined as, "2(15). "document" includes summons, notice, requisition, order, other legal process, and registers, whether issued, sent or kept in pursuance of this or any other Act or otherwise."
So, when the Defendant No 2 is a Registered Company, as recited in ExP13-Lease Deed, then any Notice to be served on the said Company, is to be served in terms of Sec 51 of the Companies Act, 1956, by sending it to its Registered Office, as mentioned in the Lease Deed-ExP13.
OS No.15626/2006 43 16.06. On perusal of the Termination Notice dated 19.01.2005 marked at ExP11, it is seen that the said notice is sent to the Defendant No 1, in the capacity of the Manager of the Binny Showroom, bu the same is not sent to the Registered Office of the Binny Limited, as required U/Sec 51 of the Companies Act, 1956.
So service of Termination Notice-ExP11 is not as per law.
16.07. As per ExP13-Lease Deed, Binny Ltd Company is the tenant and not the Binny showroom. So lease of Binny Ltd Company is required to be terminated, as per Sec 106 of the TP Act. But Ex.P11- Termination Notice is issued to the Defendant No.1 and not to the Defendant No.2.
Secondly, when Binny Showroom- Defendant No.1 is the not the tenant under the Lease Deed- Ex.P13, termination of tenancy of Defendant No.1, will be of no consequences, as Defendant No.1 cannot be charged under the Lease Deed - Ex.P13.
16.08. Thus, the Plaintiff has failed to prove that, it has issued a valid termination notice, OS No.15626/2006 44 terminating the tenancy/lease created under Lease Deed-Ex.P13.
Hence, I answer RECASTED ISSUE NO.2 IN THE NEGATIVE.
17. ISSUE NO.3:-
As observed supra, when the Defendant No.1 is not the tenant, under the Lease Deed-Ex.P13, he cannot be charged under the said document.
So the contention of the Plaintiff that, the Manager, Binny Showroom- Defendant No.1 is in arrears of rent to the tune of Rs.60,000/-, and he is to be directed to pay the same, is not sustainable.
Hence, I answer ISSUE NO.3 IN THE
NEGATIVE.
18. RECASTED ISSUE NO.4:-
The Defendants contend that, the suit of the Plaintiff is not maintainable, within the meaning of Sec.69(2) of the Partnership Act, as it is not a registered Partnership firm.
18.01. The present suit is filed by the Plaintiff contending that, it is a registered Partnership OS No.15626/2006 45 firm, registered U/Sec.59 of the Indian Partnership Act, 1932.
The Plaintiff has produced acknowledgment of registration of firm at Ex.P16. As per this document, it is seen that, Plaintiff firm is registered, under the provisions of the Indian Partnership Act, on 28.03.2003 at Registration No.672 of 2003.
18.02. The present suit is filed by the Plaintiff claiming to be a partnership firm for the relief of eviction of the Defendants from the Suit Schedule Property, contending that, it is the owner of the said property, as it has purchased the said property from its erstwhile owner.
18.03. As per the decision of the Hon'ble Apex Court in the case of Raptakos Brett & Company Ltd., V/s Ganesh Property, reported in (1998) 7 SCC 184; wherein it is held that;
"Suit for eviction filed by an unregistered firm is not barred since the plaint was based on a composite cause of action, one part referring to breach of specific covenants of the lease, on account of failure of the tenant to deliver the possession to the Plaintiff-lessor on expiry of the term of the lease and the second part was based on the OS No.15626/2006 46 failure of the Defendant-lessee to comply with his statutory obligations under Ss. 108
(q) & 111(a) of T.P.Act. Further held that, such suit is not barred by Sec.69 (2) of the Partnership Act, as non-compliance of the statutory obligation by the Defendant when made the subject matter of the corresponding legal right of the landlord cannot be said to be giving raise to enforcement of any contractual right of the Plaintiff arising from the expired contract of tenancy".
18.04. Further as per the decision in the case of Central Bank of India V/s M/s Sagdeo Towers, reported in 2007 (4) Mh.L.J. 123, wherein it is held that;
"Suit by unregistered firm against third party not arising from a contract entered into in connection with its business, is not barred U/Sec. 69 (2) of the Partnership Act."
18.05. Applying the above said principles of law, laid down in the decisions referred to supra, to the facts of the instant case, it can be said that, the contract inbetween the Plaintiff firm and the Defendants is a contract, which is not governed by the provisions of the Partnership Act, but it is a contract, which comes within the ambit of Sec.108 (q) and Sec.111(h) of Transfer of Property Act. Under the said contract, the Plaintiff firm is seeking the OS No.15626/2006 47 enforcement of its rights, under the provisions of the T.P. Act, thereby to get the Defendants evicted from the suit schedule property. Thus, the rights sought- for by the Plaintiff firm, to be defined under this suit does not arise from a contract inbetween the Plaintiff firm and the Defendants, the contract which is in- connection with the business of Plaintiff firm, as a Partnership firm, as such the bar provided U/Sec. 69(2) of the Partnership Act will not be attracted. Thus, the present suit filed by the Plaintiff Partnership firm, against the Defendants, for its eviction, under the provisions of the T.P.Act, will not be attracted, as a bar U/Sec.69(2) of the Partnership Act.
Thus, I do not find any substance in the stand takenup on behalf of the Defendant No.2 contending that the present suit is barred U/Sec.69(2) of the Partnership Act, the Plaintiff firm is a registered firm, within the meaning of the provisions of Partnership Act.
18.06. So also, since the right of the Plaintiff firm to file the present suit for eviction of the Defendants from the Suit Schedule Property, does not OS No.15626/2006 48 get generated from a contract relating to the business of the said firm, but the same is got created, on purchase of the Schedule Property, then the Plaintiff firm can sue for such rights, through its representatives, in accordance with law.
18.07. Thus, the Defendants have failed to prove that, the suit of the Plaintiff is not maintainable, on the count that Plaintiff Firm is not registered under the provisions of Partnership Act.
Hence, I answer RECASTED ISSUE NO.4 IN THE NEGATIVE.
19. RECASTED ISSUE NO.5:-
The Learned Counsel for the Plaintiff would contend that, on termination of the tenancy, the Defendant has failed to vacate the premises, so it is liable to pay the damages to the Plaintiff, on its termination.
Percontra, the Learned Counsel for the Defendant No.2 would contend that, as per the Lease Deed-Ex.P13, the contract of lease is entered with Defendant No.2; and the contractual tenancy comes to an end only after a valid termination, as required OS No.15626/2006 49 U/Sec.106 of Transfer of Property Act. Unless the contractual lease is validly terminated remedy of the landlord to seek for damages and mesne profits, will not accrue. He has placed his reliance on the decision of the Hon'ble High Court of Karnataka, in the case of Mrs. Khandelwal Brothers Company Ltd., V/s G S Nisar Ahmed, reported in ILR 2004 Kar 2864, wherein it is observed in Para No.8, as under:-
"8. Re. Point No. 1: The Division Bench of this Court in B.S. GIRIDHAR v. P.V. SHETTY, ILR 84 KAR 1115 has held that despite the termination of tenancy under Section 106 of the T.P. Act the tenant would continue to be a statutory tenant within the definition of the Rent Control Act 1961 notwithstanding the fact that eviction of such tenant need not be governed by Section 21 of the Act but for the purpose of his legal status he would be a statutory tenant. The landlord cannot recover damages or mesne profits but can recover only the agreed rents till the date of delivery of possession even in a suit for possession instituted under T.P. Act"
19.01. As observed, while dealing Recasted Issue No.2 that, Plaintiff has failed to validly terminate the contractual lease of the Defendant No.2; and the Termination Notice issued by the Plaintiff as per Ex.P11, is not in accordance with the OS No.15626/2006 50 provisions of the Companies Act, more specifically, U/Sec.51 of Companies Act, 1956, resultantly, not in accordance with Sec.106 of the Transfer of Property Act.
19.02. Thus, the Plaintiff has failed to prove that, it is entitle for damages, as claimed by it.
Hence, I answer RECASTED ISSUE NO.5 IN THE NEGATIVE.
20. ISSUE NO.6:-
The Defendant Nos.1 and 2, would firstly contend that, Plaintiff is not the owner of the Suit Schedule Property, so it cannot maintain the present suit seeking the relief of Eviction.
20.01. The Learned Counsel for the Plaintiff would contend that, originally the Suit Schedule Property alongwith other properties formed in "Andrew's Building" was originally belonging to Mrs. O'Leary. On her death, her Niece- Caroline Webb succeeded the entire property, including the Suit Schedule Property; and she has sold the said property to the Plaintiff Firm, under the Registered OS No.15626/2006 51 Sale Deed dtd.26.03.2003. Even the same was intimated by Caroline Webb to the Defendant No.1, as per the Letter of attornment dtd.31.03.2003.
20.02. The Learned Counsel for the Defendant No.1 would contend that,
a) no any property is sold by Mrs. Caroline Webb, more specifically, the estate of Mrs. O'Leary, under the Registered Sale Deed dtd.26.03.2003;
b) Plaintiff Firm was not in existence, as on the date of the Sale Deed dtd.26.03.2003, as the said Firm has come into existence on and after 28.03.2003.
20.03. The Learned Counsel for the Defendant No.2 would contend that, when the ownership of the Plaintiff Firm is denied by the Defendants, then the Plaintiff Firm cannot maintain the suit for Ejectment without getting, its ownership declared, by law. He has placed his reliance on the two decisions viz.,
a) of the Hon'ble High Court of Karnataka, in the case of Sri. Anantswami V/s Smt. Radha Srinath and Anr., reported in ILR 2010 Kar OS No.15626/2006 52 2204, wherein it is held at Para No.21 and has concluded at Para No. 29, as under:-
"21. In the present case, the tenancy in question is not under t.he provisions of the Transfer of Property suit schedule premises is included in Part-A of the First Schedule of the 1999 Act. Therefore. Determination of lease in accordance with the provisions of Property Act is unnecessary because the landlord cannot eviction of the tenant after such determination. The tenant continues to be so even thereafter.
29. From the discussion made above, it is clear that the defendant is the tenant of the suit schedule premises governed under the provisions of the 1999 Act. The tenant in occupation of the premises after the termination of tenancy would continue to be a tenant. In the matter of determination of Act does not permit the landlord to snap his relationship with the tenant merely by serving notice to quit as provided in Transfer of Property Act. Sec. 111(g) of the Transfer of Property Act is not applicable because the tenancy is governed under the 1999 Act. Sec 27{1} read with Section 3(c) of the 1999 Act excludes the jurisdiction of the ordinary Civil Courts to pass an order of eviction of a tenant from the premises governed under the said Act. Even otherwise the jurisdiction of the Civil Court of the said OS No.15626/2006 53 purpose is ousted by necessary implication. The 1999 Act contains/creates a special right and provides for determination of the right and further lays down all questions about the said right to be determined by the Court constituted thereunder. It also provides for a forum for challenging the order passed by the designated Court. Thus, the said Act is a complete code in itself. The Civil Court having held that, the Respondent is a tenant under the Plaintiffs in respect of the Suit Schedule Premises, could not have directed delivery of possession of the said property. When the tenancy is governed under the provisions of 1999 Act, the Civil Court has no jurisdiction to pass a decree for possession of the suit schedu1e property. Point No.(ii) is answered accordingly."
b) of the Hon'ble Supreme Court, in the case of A. Shanmugam V/s Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam Represented by its President, in Civil Appeal Nos.4012-13 of 2012, wherein it is held at Para No.42, as under:-
"43. On the facts of the present case, the following principles emerge:
1. It is the bounden duty of the court to uphold the truth and do justice.
OS No.15626/2006 54
2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts.
3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful.
4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrongdoer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice.
5. It is the bounden obligation of the court to neutralise any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process.
6. The watchman, caretaker or a servant employed to look after the property can never acquire interest in the property irrespective of his long possession. The watchman, caretaker or a servant is under an obligation to hand over the possession forthwith on demand. According to the principles of justice, equity and good conscience, the courts are not justified in protecting the possession of a watchman, OS No.15626/2006 55 caretaker or servant who was only allowed to live into the premises to look after the same.
7. The watchman, caretaker or agent holds the property of the principal only on behalf of the principal. He acquires no right or interest whatsoever in such property irrespective of his long stay or possession.
8. The protection of the court can be granted or extended to the person who has a valid subsisting rent agreement, lease agreement or licence agreement in his favour."
And further contends that, the suit in the present form is not maintainable, the same is required to be dismissed.
20.04. As per the contentions taken up by the Defendant No.2, the Defendant No.2 admits the ownership of Mrs. O'Leary over the property bearing Nos.101 and 102 of Andrew's Building, MG Road, Bengaluru.
20.05. As per Ex.P13- Lease Deed, Mrs. O'Leary being the lessor has entered into a transaction of lease with the Defendant No.2, as her lessee. So Defendant No.2 will become the lessee under Mrs. O'Leary.
OS No.15626/2006 56 20.06. Admittedly, Mrs. O'Leary has died in the year 1986.
20.07 When the Defendant No.2 admits the ownership of Mrs. O'Leary; and admits the transaction of lease, as per Ex.P13, then it is estopped from dening the ownership of Mrs. O'Leary, as per Sec.116 of Indian Evidence Act.
20.08. Mrs. Caroline Webb claiming to be the successor of Mrs. O'Leary filed Petition for grant of Letter of Administration under the provisions of Indian Succession Act, at P&SC No.26/2000. And Letter of Administration was granted to Mrs. Caroline Webb in the said proceedings, as per Ex.P9.
No any material is placed on record to show that, the Letter of Administration granted to Mrs. Caroline Webb has been revoked or recalled, within the meaning of the provisions of the Indian Succession Act.
So, the Letter of Administration-Ex.P9, holds the field, inrespect of succession of the estate of Mrs, O'Leary, by her Niece Mrs. Caroline Webb.
OS No.15626/2006 57 20.9. The Plaintiff has produced the certified copy of the Registered Sale Deed dtd.26.03.2003 at Ex.P10. As per this document, it is seen that Mrs. Caroline Webb has convened the estate left by Mrs. O'Leary, including the property known as "Andrew's Building" bearing Municipal Nos.101 and 102, situate at Mahatma Gandhi Road, Bengaluru, which is shown as Schedule A Property, under the said deed, infavour of the Plaintiff Partnership Firm, for the valuable consideration of Rs.3,50,00,000/-. This document also indicates that, an amount of Rs.3,07,21,145/- has been paid by the purchaser to the vendor, on deducting all with holding taxes of the purchased properties.
20.10.01. The Learned Counsel for the Defendant No.1 would contend that, on perusal of the recitals in Ex.P10, no where it is mentioned that, Mrs. Caroline Webb has sold the properties shown under the Schedules of the said document to the Plaintiff Partnership Firm. So he would contend that, the transaction mentioned under Ex.P10 is not a sale within the meaning of Sec.54 of Transfer of Property Act.
OS No.15626/2006 58 20.10.02. On careful perusal of the recitals in Ex.P10-Certified copy of the Sale Deed dtd.26.03.2003, it is seen that, the word sale is not found, but the word assigned is found, in Ex.P10.
As per Sec.54 of the Transfer of Property Act, which defines sale as, transfer of ownership in exchange for a price paid or promised or partly paid or partly promised.
A contract of sale of immovable property, is a contract that a sale of such property shall take place on terms settled between the parties. On settling the terms by paying consideration i.e., transfer of ownership in exchange for a price, by virtue of a registered document, registered within the meaning of the Sec.17 of the Registration Act, will create interest over the subject property, infavour of the purchaser. Merely because the word 'sale' is not used in the terms settled in between the parties, under the Sale Deed, the same will not take away the significance of sale, as defined U/Sec.54 of the Transfer of Property Act.
Hence, the contention of the Learned Counsel for the Defendant No.1 that, transaction found under Ex.P10, is not a sale and rights have not been OS No.15626/2006 59 created infavour of the Plaintiff Partnership Firm, under the said document, cannot be accepted.
20.11. The second contention raised by the Learned Counsels for the Defendant Nos.1 and 2, is that, as on the date of registration of the Sale Deed - Ex.P10, the Plaintiff Firm was not in existence. Further they would contend that, the Sale Deed at Ex.P10 is registered on 26.03.2003; and the Plaintiff Firm, as per Ex.P16 has come into existence on 28.03.2003.
20.11.01. As per Ex.P16- Acknowledgment of registration of Firm, the Plaintiff Partnership firm has come into existence on 28.03.2003.
20.11.02. On perusal of the certified copy of the Sale Deed at Ex.P10, it is seen that, the said document is scribed on 26.03.2003, but the said document was pending for registration for want of payment of stamp duty. As per the endorsements made on the said document, it is seen that, payment of stamp duty is ordered on 22.09.2003 and 06.10.2003.
OS No.15626/2006 60 20.11.03. Firstly, the Defendant No.2 being the lessee under Ex.P13 cannot challenge the transfer of ownership, as he is not claiming his independent ownership over the property said to be purchased by the Plaintiff Firm.
Secondly, the date of cause of action for filing of the suit is to be considered, inorder to ascertained the ownership of the Plaintiff Firm and to ascertained the termination of lease of the Defendant No.2, as on the date of filing of this suit, as has been held by the Hon'ble High Court of Delhi, in the case of M/s Sainath Enterprises V/s North Delhi Municipal Corporation and Anr., in CS(OS) No.3397/2014, wherein it is observed at Para Nos.78 to 80, as under:-
"78. Order XXX Rules 1 and 2 CPC merely provide the mode or form and the procedure for suits by or against a firm. The requirements in Section 69 (2) has to be satisfied first and then the provisions of Order XXX Rule 1 and 2 CPC are attracted as regards the mode or form in which the suit may be instituted as well as the procedure applicable to the said suit. In providing the mode, Rule 1 prescribes a certain requirement, viz., that the persons mentioned therein must have been partners at the time of the accruing of the cause of action.
OS No.15626/2006 61
79. Therefore, the provisions in Section 69 (2) of the Partnership Act and those in Order XXX Rule 1 CPC would operate separately. The former deals with the question as to when a firm can sue or be sued by a third party in respect of a right arising from a contract and prescribes certain requirements for the same, while the latter deals with the mode or form and the procedure for suits by or against firms, and prescribes a certain requirement for the same.
Therefore, it is correctly laid down in many cases that the words "persons suing" in Section 69 (2) and the point of time at which the requirements in Section 69 (2) are to be fulfilled, by referring to the provision in Order XXX Rule 1 CPC.
80. Under Section 69(2), a suit to enforce a right arising from a contract can be instituted by or on behalf of a firm against any third party only if (a) the firm is registered and (b) the persons suing, i.e., all the partners of the firm at the time of the institution of the suit, are or have been shown in the Register of Firms as partners in the firm, while under Order XXX Rule 1 CPC two or more persons who claim as partners may sue, or who are liable as partners may be sued, in the name of the firm (if any), provided such persons were partners at the time of the accruing of the cause of action. If the facts in a given case are such as to attract the applicability of the provisions in both Section 69 (2) and Order XXX Rule 1 CPC, the requirements in both the provisions should be fulfilled. In such a case, if a suit to enforce a right arising from a contract is to be instituted OS No.15626/2006 62 by or on behalf of a firm against any third party, the firm has to be a registered firm, and the partners of the firm as on the date of the institution of the suit must have been shown in the Register of Firms as partners in the firm, and further they must have been partners of the firm at the time of the accruing of the cause of action."
20.11.04. Thus, even the second contention taken up by the Learned Counsel for the Defendant No.2 that, Plaintiff Firm was not in existence as on the date of the Sale Deed -Ex.P10, is of no avail and consequences for the present suit.
20.12. The Learned Counsel for the Defendant No.2 would contend that, when the Defendants have raised the plea of denial of ownership of the Plaintiff Firm then Plaintiff Firm has to file a suit claiming declaration of its ownership and then to claim possession and eviction of the Defendants from the leased property.
As observed supra, as per Sec.116 of the Indian Evidence Act, the Defendant No.2 is estopped from denying the ownership of Mrs. O'Leary over the property, leased out by her to it. Secondly, merely denying the ownership of the Plaintiff Firm by the OS No.15626/2006 63 Defendant No.2 is not sufficient, but the same is to be denied by cogent and material evidence, by put- forthing its claim of ownership over the property. I find force to my above view the Hon'ble Apex Court in the case of Anathulla Sudhakar V/s P. Buchi Reddy (dead) and others reported in AIR 2008 SCC 2033, wherein it is held that, "suit for injunction simplicitor is maintainable, when there is interference in the peaceful enjoyment and possession of the Plaintiff and when clouds of title have not been raised in other words, title of the Plaintiff is not challenged, with cogent evidence".
In the present set of facts the Defendant No.2 is not claiming the ownership of the leased property, so inview of the same, mere suit for ejectment is maintainable, on the basis of the transaction taken place under Ex.P13- Lease Deed, provided that, termination of contract of lease, is proved by the Plaintiff Firm.
21. The second contention raised by the Defendants is that, presentation of the Suit Plaint and filing of this suit, is not proper.
OS No.15626/2006 64 The Learned Counsel for the Defendant No.1 would contend that, the Plaint is presented by one Mr. M Ravinder, the Managing Partner of the Plaintiff Firm, through his Power of Attorney holder-L. Manjunath, which is incorrect, without producing any document to show such authorization.
The Learned Counsel for the Defendant No.2 would contend that, no authorization is given by the Partnership Firm to the socalled Managing Partner - M Ravinder and inturn M Ravinder has not authorized Mr. L Manjunath, to sign and present the plaint, under this suit. There is violation of Or.XXX of CPC, as there is mis-description of parties. He has placed his reliance on five decisions viz.,
a) of the Hon'ble High Court of Calcutta, in the case of Neogi Ghose & Co., Vs Sardar Nehal Singh & Anr, reported in AIR 1931 Cal 770, wherein it is observed in Para No 6, as under:
"6. On behalf of the Defendant it is contended that, if the amendment is allowed the plaintiff would only be entitled to such relief as he could have claimed if the suit had commenced today. I have been referred to Vyankatesh Oil Mill Co. V. M.V. Velmahomed A.I.R. 1928 Bom,191 where a point not dissimilar was OS No.15626/2006 65 considered. That was a case where persons carrying on business in partnership, but not within British India, sued under their firm name, which they were not entitled to do under order 30, Rule 1. The Learned Judge took the view that the suit was badly framed from the outset and that the Plaintiffs were an entity not recognized by law, and that the amendment asked for could not be treated as an amendment following upon a mere misdescription but as an application for the substitution as plaintiffs of the individual persons who composed the entity which the law did not recognize with this I entirely agree."
b) of the Hon'ble High Court of Delhi, in the case of M/s Nibro Limited V/s National Insurance Co., Ltd., (date of decision 06.03.1990), wherein it is observed in Para No 23 and 25, as under:
"23. On the analysis of the judgments, it is clear that Order 29 Rule, 1 of the Code of Civil Procedure does not authorize persons mentioned therein to institute suits on behalf of the corporation. It only authorizes them to sign and verify the pleadings on behalf of the corporation.
25. It is well-settled that under sec.291 of the Companies Act except where express provision is made that the powers of a company in respect of a OS No.15626/2006 66 particular matter are to be exercised by the company in general meeting in all other cases the Board of Directions are entitled to exercise all its powers. Individuals directors have such powers only as are vested in them by the Memorandum and Articles. It is true that ordinarily the court will not unsuit a person on account of technicalities. However, the question of authority to institute a suit on behalf of a company is not a technical matter. It has far-reaching effects. It often affects policy and finances of the company. Thus, unless a power to institute a suit is specifically conferred on a particular director, he has no authority to institute a suit on behalf of the company. Needless to say that such a power can be conferred by the Board of Directors only by passing a resolution in that regard."
c) of the Hon'ble Apex Court in the case of State Bank of Travancore Vs M/s Kingsto Computers (I) P Ltd., (Civil Appeal No 2014 of 2011, date of decision 22.02.2011), wherein it is observed, as under:
"The trial court then referred to the judgment of the Delhi High Court in M/s. Nibro Limited Vs. National Insurance Company AIR 1991 Delhi 25, Shubh Shanti Services Limited Vs. Manjula S.Agrawalla and others (2005) 5 SCC 30, OS No.15626/2006 67 Delhi High Court (original side) Rules, 1967 and proceeded to observe:
"..........As already stated, it has not been averred in the plaint nor sought to be proved that my resolution had been passed by the Board of Directors of the plaintiff company authorizing Sri.A.K. Shukla to sign, verify and institute the suit. It has also right to Sri. A.K. Shukla to sign, verify and institute a suit on behalf of the plaintiff company. It, therefore, follows that the plaint has been instituted by Sri.A.K.Shukla only on the authority of Sh. Raj K. Shukla, CEO of the plaintiff company. Such Accused authority is not recognized under law and, therefore, I held that the plaint has not been instituted by an authorized person. Issue No.1 is accordingly, decided against the plaintiff and in favour of the defendants."
d) of the Hon'ble High Court of Karnataka in the case of State of Karnataka, by its Scretary, Revenue Department and Others Vs M. Muniraju & Ors, reported in ILR 2002 KAR 2923, wherein it is observed in Para Nos 50 to 52 as under:
"50. The learned counsel for the Defendants has rebutted the above contention of the Plaintiffs Counsel by placing strong reliance upon the following three judgments of the Bombay High OS No.15626/2006 68 Court, Privy Council and the Madhya Pradesh High Court reported in AIR 1936 Bombay 62 at pages 69-79, AIR 1936 at pages 197; AIR 1980 MP 32. In those cases the ratification of earlier action of the Principal has been considered and it has been held in AIR 1929 Bombay referred to supra as under.
"(c) Principal and Agent Ratification-
For this doctrine, agent should not act for himself.
The first essential to the doctrine of ratification, with its necessary consequence of relating back, is that the agent shall not be acting for himself, but shall be intending to bind a named or ascertainable principal. Hence where the agent puts some of the principal's money in his pocket, there cannot be any question of ratification by the principal, as the agent cannot be deemed to have taken the money for himself as agent for the principal. If the act has been authorized, the contract between the principal and the agent would be the ordinary contract of loan.
Halsbury' Laws of England, 2 nd Edn. P. 231; Health V. Chirton, (1844) 12 M & W 632 and Eastern Construction Co. V. National Trust Co., (1941) Ac 197.
....The first essential to the doctrine of ratification. With its necessary consequences of relating back, is that the agent shall not be acting for himself , but shall be intending to bind a named or OS No.15626/2006 69 ascertainable principal ( Halsbury's Law of England, Edn 2. P. 231' (1844) 12 M & W 632 (8) at p. 638 and (1914) AC 197(9) at P. 213), if the suggestion of ratification in this case is analyzed it comes to this, that the agent having put some of the principle's money in his pocket, the latter ratifies the act. For the reason given this is not possible as a legal conception, since the agent did not take and could not be deemed to have taken, the money for himself as agent for the principal. If the act had been authorized, the contract between the principal and the agent would have been the ordinary contract of loan. That indeed seems to have been that what McElroy suggested to Chambers, if the suggested anything honest at all. There can be no room here for the application of the doctrine of ratification. The point was clearly put in the judgment of the chief justice.
McElroy was not professing to act as her agent in paying the bank and the bank was not receiving the money from anybody acting as the appellant's agent. This is most important consideration because it follows that, as McElroy did not profess to represent the appellant in paying the bank, his act in doing so was not one which the appellant could validly make her own by ratification.
In view of the law laid down in the judgments referred to supra it has to be OS No.15626/2006 70 held that the Power of Attorney holder has failed to show that he had the authority to institute original suit Nos.479/93 and 481/1993 on behalf of the plaintiffs as on the date of their institution before the trial court. Since PW.1, had produced the xerox copies of the GPA as document No.1 along with the plaints at the time of institution of the suits, production of the subsequent power of attorneys as per Ex.P.21 and P.46 do not arise at all and these documents do not amount to ratification of the earlier power of Attorneys executed by the plaintiffs in favour of PW.1 and he had the authority to institute the original suits and prosecute the same before the courts below.
51. The contention regarding the original authority given by the plaintiffs for institution of the suits and subsequently the same were ratified by executing separate GPA in favour of PW.1 as per ExP.21 and P.46, is untenable as the General Power of Attorney holder had no power or authority to institute the said suits against the defendants. In view of the law laid down by the various High Courts and Privy Council referred to supra, by virtue of the alleged ratification of the earlier power of Attorneys produced as document No.1 dated: 24.01.1991 and 20.01.1991 respectively, the agent cannot be deemed to had taken the authority on OS No.15626/2006 71 behalf of the principal for prosecution of the cases by producing originals subsequently which bear altogether different dates.
52. For the reasons stated supra, the latter portion of the substantial question of law with regard to the authority of the General Power of Attorney Holder for instituting and prosecuting the cases on behalf of the plaintiff requires to be answered against the plaintiffs an in favour of the defendants holding that the GPA holder Mr. Gulzar Khan PW.1 had no authority to institute the above two suits. Hence, the suits on this count are also liable to be dismissed."
e) of the Hon'ble High Court of Delhi, in the case of Rajghria Paper Mills Ltd, Vs The General Manager, Indian..., reported in AIR 2000 Delhi 239, wherein it is held as under:
"Unless a power to institute suit is specifically conferred on a particular director he has no authority to institute suit on behalf of the company. It must, therefore, follow that although the plaint was signed and verified properly but the suit was not instituted by a duly authorized person on behalf of the pf, Issue is answered accordingly."
OS No.15626/2006 72 21.01. Coming to the ocular evidence, on this point, more specifically,
a) cross examination of PW.2, at Page No.6, Para Nos.2 and 3, which reads as under:-
"I am the employee of Mr. Rana George, who is the present partner of the Plaintiff Company. The Power of Attorney
- Ex.P12, executed in my favour, is singed by Mr. Rana George, at Hyderabad. I have affixed my signature on Ex.P12 at Hyderabad.
As per the partnership deed Mr. Rana George is the Manager Partner of the Plaintiff Firm. I am in possession of a Certificate issued by the Registrar of Firms, showing the name of Mr. Rana George as the Managing Partner of the Plaintiff Firm. I do not have any impediment to produce the said Certificate issued by the Registrar of Firms, in this case."
b) cross examination of PW.2, at Page No.10, Para No.3, which reads as under:-
"On behalf of Mr. Rana George I have given instructions to the counsel to draft my examination in chief by way of Affidavit. Mr. Rana George has no any disability to depose in this case."
c) cross examination of PW.2, at Page No.11, Para No.6, which reads as under:-
OS No.15626/2006 73 "Earlier partner of the M/s. Square Projects Associates had issued instructions to file this suit. M/s. Square Projects Associates were having two partners viz., Ravinder and Mrs. Vinoda. I am having partnership deed of this two partners. Mr. Ravinder and Mrs.Vinoda were partners from 2003 - 2018. Both Mr. Ravinder and Mrs. Vinoda have retired in 2018. I know as to what had transpired in this case prior to execution of the General Power of Attorney in my favour. Prior to 2019, i.e. prior to execution of Power of Attorney Ex.P12 in my favour, I was personally connected with the affairs of this case. One Mr. Govindaraj Advocate was handling the matter, when eviction notice as per Ex.P11 was issued in this case. It is true to suggest that except Ex.P11 eviction notice, no other statutory notice is issued in this case. We are asking for eviction inrespect of the property shown as Schedule in Ex.P11."
21.02. Coming to the documentary evidence, on this point, more specifically, acknowledgment of registration of partnership firm, marked at Ex.P16.
On perusal of the said document, it is seen that, Mr. M Ravinder and T Vinodha are shown as the incoming partners, as on 20.04.2005.
OS No.15626/2006 74 The present suit is filed by the Plaintiff Firm on 03.04.2006.
21.03. So as per the above ocular evidence and the documentary evidence i.e., Ex.P16, it can be said that, as on the date of filing of this suit, there were only two partners in the Partnership Firm.
21.04. As per the description of the Plaintiff Firm in the causetitle of the Suit Plaint, Plaintiff Firm is said to be represented by its Managing Partner.
Though the Plaintiff Firm has described Mr. M Ravinder as the Managing Partner, but no any document is produced by the Plaintiff Firm, to show that,
a) Mr. M Ravinder is the Managing Partner of the Plaintiff Partnership Firm, as on the date of filing of this suit; or
b) Mr. M Ravinder has been authorized by the Plaintiff Partnership Firm, to represent it in the said suit.
21.05. Unless power to institute is specifically conferred on a particular partner, either OS No.15626/2006 75 he be a mere partner, or a Managing Partner, he has no authority to institute the suit on behalf of the firm.
21.06. Secondly, Sec.69(2) requires that, a firm must be a registered firm; their must be partners of the firm, as on the date of institution of the suit, who have been shown as the partners in the register of firms; and further they must have been partners of the firm at the time of accruing of the cause of action for filing the suit.
21.07. Applying the above preposition of law to the instant case at hand, as per Ex.P16, Mr. M Ravinder and T Vinodha were shown as the partners, as on the date of filing of this suit; as well as, they were the partners, as on the date of the cause action pleaded by the Plaintiff Firm in this suit. But Plaintiff Firm has not produced any document like resolution etc., to confer authority in Mr. M Ravinder, either to act, as the Managing Partner, or to file/present the Suit Plaint, on behalf of the Plaintiff Firm, for eviction of the Defendants.
OS No.15626/2006 76 21.08. The Defendants would contend that, even L Manjunath was not having proper authority to sign and present the plaint on behalf of the Plaintiff Firm.
21.08.01. Coming to the ocular evidence, on this point, more specifically, cross-examination of PW.2, at Page No.19, Para No.3, which reads as under:-
"One L. Manjunath has signed the Plaint. It is false to suggest that L. Manjunath was not having any authority to sign the suit Plaint in this suit. Witness volunteers that said L. Manjunath was the Power of Attorney holder."
21.08.02. When the Defendant has denied the authorization of Mr. L Manjunath to sign and present the suit plaint on behalf of the Plaintiff Firm, then it was for the Plaintiff Firm to produce the material on record to substantiate such authorization. But the Plaintiff has not produced any document to show that, either the Plaintiff Firm to authorized the Power of Attorney holder Mr. L Manjunath, who has sign the plaint on behalf of the Plaintiff Firm, to file/present the suit; or Mr. M Ravinder either acting as Managing OS No.15626/2006 77 Partner, or representative of the Plaintiff Firm to authorized Mr. L Manjunath, to sign and present the plaint, on behalf of the Plaintiff Firm.
21.08.03. Presentation of the plaint by Mr. L Manjunath acting as the Power of Attorney holder of Mr. M Ravinder, without any documents to suggest proper authorization by the Plaintiff Firm, itself is an infirmity.
22. Further the Learned Counsels for the Defendant Nos.1 and 2 would contend that, PW.2 is not a competent person to depose on behalf of the Plaintiff Firm, as there is no proper authorization to him.
22.01. Coming to the ocular evidence, on point of authorization to PW.2, more specifically,
a) cross-examination of PW.2, at Page No.10, Para No.1, which reads as under:-
"I am deposing in this case, on the basis of General Power of Attorney Ex.P12, executed in my favour. Ex.P12 is executed Mr. Rana George. Apart from Ex.P12, I am not having any other Power of Attorney, to represent in this case. I am working in the Plaintiff Company from the date of execution of General Power of OS No.15626/2006 78 Attorney- Ex.P12. It is true to suggest that I am not the employee of the Plaintiff Company."
b) cross-examination of PW.2, at Page No.17, Para No.3, which reads as under:-
"I am not an employee of the
Square Projects Associates Firm. I do not
have any personal knowledge of the
transactions take place with regard to the
Suit Schedule Property prior to 2019."
c) cross-examination of PW.2, at Page No.10, Para No.2, which reads as under:-
"I am working with Kelachandra Group of Companies since 2007, till date. My company Kelachandra Group of Companies is having registered office at No.16, St. Marks Road, Bengaluru. Mr. Rana George the executable of Ex.P12 is one of the directors of the companies, among Kelachandra Group of Companies. Mr. Rana George resides at Golf Link Business Park, Ring Road, Koramangala, Bengaluru."
As per this evidence PW.2 contends that, apart from Ex.P12 he is not having any power of attorney to represent in this case; he is working in the Plaintiff Company from the date of execution of General OS No.15626/2006 79 Power of Attorney -Ex.P2. And he admits that, he is not the employee of the Plaintiff Firm/Company. He was working with Kelachandra Group of Companies since 2007 till date. Mr. Rana George of who is the executor of Ex.P12 is one of the Directors of the Companies, among Kelachandra Group of Companies and contends that, he do not have any personal knowledge of the transactions taken place withregard to Suit Schedule Property, prior to 2019.
22.02. Coming to the documentary evidence i.e., Ex.P12- General Power of Attorney executed infavour of PW.2. It is seen that, one Mr. Rana George S/O K J George representing as the Managing Partner of the Plaintiff Partnership Firm has appointed PW.2, as its attorney, to represent the Plaintiff Firm in this suit and to depose, on its behalf.
22.03. On careful perusal of acknowledgment of registration of firms -Ex.P16, name of Mr. Rana George is not mentioned in the said document.
Secondly, two versions are coming from the side of the Plaintiff that, as per the recitals of the Suit OS No.15626/2006 80 Plaint, more specifically the causetitle of the plaint wherein Mr. M Ravinder is shown to be the Managing Partner. As per the recitals of Ex.P12- General Power of Attorney one Mr. Rana George is shown to be the Managing Partner of Plaintiff Firm, which runs contrary to the former contention of the Plaintiff Firm, taken up in the Suit Plaint, contending that, Mr.M.Ravinder is the Managing Partner.
Thirdly, the Plaintiff Firm has not produced any document to show that, as to when Mr. Rana George was inducted in the Plaintiff Firm, as the partner; as well as, as the Managing Partner.
Unless, the Plaintiff Firm brings certain material on record to show the status of Mr. Rana George either as a partner of the Plaintiff Firm, or as the Managing Partner of the Plaintiff Firm, authorization given to PW.2 under Ex.P12, cannot hold good.
Thus, in the absence of cogent and material evidence withregard to
a) induction of Mr. Rana George in the Plaintiff Firm as a partner, or as a Managing Partner;
b) authorization of Mr. Rana George by the Plaintiff Firm; and/ or OS No.15626/2006 81
c) authorization of PW.2 either by the Plaintiff Firm, or by Mr. Rana George on behalf of the Plaintiff Firm.
Authorization given to PW.2 under Ex.P12, cannot be termed as approved by law.
23. Another contention taken up by the Defendants that, the Plaintiff has wrongly described the Suit Schedule Property and on this count the suit of the Plaintiff Firm is required to be dismissed.
23.01. The Learned Counsel for the Defendant No.2 has placed his reliance on the decision of the Hon'ble High Court of Karnataka, in the case of T. L Nagendra Babu V/s Manohar Rao Pawar, reported in ILR 2005 Kar 884, wherein it is observed at Para No.34, as under:-
"34. After noticing this, the learned Judge also notices that there is infirmity with regard to identity of the property in question but still the oral evidence of PWs. i to 3 is consistent and taking into consideration the evidence of DW1 also, identity of the suit schedule property can be fixed and it is clearly identifiable. Those findings to say the least is totally not acceptable to me. The learned Judge himself is not satisfied that Ex.P5 and the very learned Judge is of the OS No.15626/2006 82 view that he could not have ordered injunction and he could not have ordered declaration in a matter like this. Unless the Judge is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property no declaration and no injunction can be granted as has been done by the learned Judge. It is rather unfortunate again that the learned Judge has chosen to give a finding in favour of the plaintiff despite his own findings of non-acceptance of Ex.P5 and infirmities in the case on hand. In these circumstances, the argument of the appellant is well founded. I accept his argument. The findings on this issue is reversed in the light of non availability of sufficient material in terms of evidence and pleadings."
23.02. As per the lease deed-Ex.P13 the subject matter of lease was "The premises commonly known as "Andrew's Building" and comprising of premises bearing Municipal Nos.101 (Old No.2/M) and a portion of No.102 (Old No.2/B) Mahatma Gandhi Road, Civil Station, Bengaluru, bounded on the North:
by Mahatama Gandhi Road; South:
remaining portion of the premises No.102 (Old 2/B), Mahatma Gandhi Road; East: by Passage leading to Studio of M/s EG Krishnaiah Setty and Sons; and West: by passage."
OS No.15626/2006 83 Whereas the Plaintiff has defined the Suit Schedule Property as, "All that piece and parcel of the commercial premises bearing No.101 & 102, "Andrews Building", M.G. Road, Bangalore-560 001 and bounded on: East by : Private Property.
West by : Passage.
North by : M.G. Road.
South by : Private Property.
23.03. As per the contentions taken up by the Defendant, more specifically, Defendant No.2, withregard to existence, condition and contents of he transaction of lease found in Ex.P13 -Lease Agreement, the Defendant No.2 has identified the property.
23.04. Hence, it cannot be said that, the property is unidentifiable.
24. Another contention taken up by the Learned Counsel for the Defendant No.2 is that, the first Appellate Court has remanded this suit, without reversing the findings recorded by this Court, prior to its challenge; and such remand is unsatisfactory. He has placed his reliance on two decisions viz., OS No.15626/2006 84
a) of the Hon'ble High Court of Chhattisgarh, In the case of Surajmania V/s Bharat Ram, reported in MA No.35/2014, wherein it is observed in Para Nos.22 and 23, as under:-
"22. Now, keeping in view the twin requirements of Order 41 Rule 23-A of the CPC and the law laid down by the Supreme Court in afore-cited cases, I proceed to examine legality and correctness of the impugned judgment of the first appellate Court remanding the case to the trial Court. In the present case, the trial Court has disposed of the suit on merits by deciding and recording findings on all the issues and not on the preliminary issue. The first appellate Court set aside the judgment and decree of the trial Court and directed the trial Court to decide the suit afresh, after giving an opportunity to the parties to lead oral evidence as well as documentary evidence, as nature of order passed by the appellate Court would show that order has been passed by the first appellate Court in exercise of its power under Order 41 Rule 23-A of the CPC. Now, the question to be considered is whether the first appellate Court has reversed the decree in appeal and whether it is held that retrial is considered necessary. A careful perusal would show that the first appellate Court did not reverse the M.A.No.35/2014 finding recorded by the trial Court on issue Nos.1, 2 and 3, and even did not consider proper to advert to the finding recorded on three issues which the plaintiff / appellant OS No.15626/2006 85 herein has seriously challenged and no finding was ever recorded that retrial is necessary which is one of the twin conditions for exercise of jurisdiction under Order 41 Rule 23-A of the CPC. The first appellate Court has committed grave illegality in making wholesale remand and making it open to the trial Court in exercise of power under Order 41 Rule 23 of the CPC.
23. Firstly, the first appellate Court has considered the issue of necessary party which was not assailed before it by the defendant / respondent No.1 herein either by preferring a cross- objection which the plaintiff did not challenge and thereafter, the first appellate Court has failed to consider the appeal in the manner indicated in Santosh Hazari (supra) and subsequent judgments aforementioned, and did not reverse the findings of the trial Court and made wholesale remand which is totally unnecessary in view of the judgments of the Supreme Court on the question of remand noticed herein-above and this Court also in the matter of Anish Fulara v. Devcharan20 in which it has been held that power of wholesale remand has to be exercised sparingly and only when the decree of the trial Court is reversed in appeal and retrial is considered necessary. The first appellate Court has decided the appeal in an unsatisfactory 20 2014(2) C.G.L.J. 2 M.A.No.35/2014 manner. Even the points for determination were not framed as required under Order 41 Rule 31 of the CPC."
OS No.15626/2006 86
b) of the Hon'ble Apex Court, in the case of Vinod Kumar Subbiah V/s Saraswathi Palaniappan, in Civil Appeal No.5511/5512 /2014, wherein it is observed in Para No.7, as under:-
"7 We have carefully considered the matter, and find that we are unable to uphold the conclusions of the High Court. The Appellant had duly pleaded instances of mental cruelty which he proved in evidence and documents. An examination of the divorce petition makes it abundantly clear that various allegations of cruelty were made out and a number of incidents were mentioned therein. Further evidence was submitted during the course of the Trial to substantiate these allegations, which is in keeping with Order VI Rule 2 of the CPC. Furthermore, we find that the Trial Court examined the evidence at great length and came to the reasoned conclusion that the actions of the Respondent amounted to cruelty. If a spouse abuses the other as being born from a prostitute, this cannot be termed as "wear and tear" of family life. Summoning the police on false or flimsy grounds cannot also be similarly viewed. Making it impossible for any close relatives to visit or reside in the matrimonial home would also indubitably result in cruelty to the other spouse. After a cursory discussion of the evidence which the Trial Court had discussed threadbare, the High Court was not justified to set aside the conclusions arrived at by the Trial Court without giving substantiated reasons."
OS No.15626/2006 87 24.01. This Court while passing this Judgment has considered the earlier evidence and materials placed by the Plaintiff on record, as well as the subsequent proceedings taken up. Under such circumstances, the contention of the Learned Counsel for the Defendant No.2 will be of no consequences.
25. The last contention taken up by the Learned Counsel for the Defendant No.2 that, summons has not been issued, a fresh to the Defendant No.2, after allowing IA No.5 filed by the Plaintiff U/Or. 1 Rule 10(2) of CPC.
25.01. On perusal of the ordersheet, it is seen that, the said aspect has been set at not by the this Court on the memo filed on behalf of the Defendant No.2, by the order dtd.23.10.2019.
25.02. The said order has remained unchallenged and has attained finality.
25.03. As per the guiding principles laid down by the Hon'ble Apex Court, in the case OS No.15626/2006 88 reported in AIR 1964 SC 581, wherein it is held that;
"The plaintiff, however, is not obliged to obtain a fresh summons; he may request the Court to adjudicate upon the plea of denial raised by the person served and appearing under protest. The Court will then proceed to determine the issue raised by that plea, if the Court finds evidence that the person served was not a partner at the material time, the suit cannot proceed unless summon is served afresh under Rule 3."
25.04. Applying the said preposition of law to the instant case at hand, when the notice of IA No.5 was served upon the Defendant No.2, who was the proposed Defendant, interms of Sec.51 of the Companies Act, 1956, then unless the proposed Defendant No.2 contends that, it is not the said Company, but it is some other Company. In the absence of such contentions, notice of IA No.5 issued on the Defendant No.2, holds good for adjudication of the further dispute i.e., the main suit.
25.05. Thus, I do not find any substance in the contention raised by the Learned Counsel for the Defendant No.2.
OS No.15626/2006 89 Even the said contention was turned down by this Court, as per the Order dated: 23.10.2019, which has remained unchallenged.
26. Thus, inorder to sum-up, it can be concluded that,
a) the Plaintiff has failed to prove that, Mr. M Ravinder is the Managing Partner of the Plaintiff Firm;
b) the Plaintiff has failed to prove that, Mr. M Ravinder was authorized by the Plaintiff Firm, to represent it and to present and to file the suit against the Defendants, for eviction;
c) the Plaintiff has failed to prove that, Mr. M Ravinder, acting as a Managing Partner has authorized Mr. L Manjunath, to sign the plaint and to present the same, on behalf of the Plaintiff Firm;
d) the Plaintiff Firm has proved that, it has purchased the Suit Schedule Property from Mrs. Caroline Webb, under the Registered Sale Deed dtd.26.03.2003-Ex.P10;
e) the Plaintiff has shown that, Mrs. O'Leary had entered into a Lease Agreement with the Defendant No.2, as per the Lease Agreement-Ex.P13;
OS No.15626/2006 90
f) the Plaintiff Firm has failed to prove attornment of tenancy of the Defendant No.2, by virtue of Ex.P8, as contended by it;
g) the Plaintiff Firm has failed to prove that, it has validly terminated the tenancy of the Defendant No.2, by virtue of Termination Notice dtd.19.01.2005- Ex.P11, created under the Lease Agreement-Ex.P13;
h) the Plaintiff Firm has failed to prove proper authorization of PW.2 to represent the Plaintiff Firm and to depose on its behalf.
27. Therefore, Plaintiff Firm is not entitle for the relief of Eviction; arrears of rents and damages, as claimed by it.
Hence, I proceed to pass the following:
ORDER Suit of the Plaintiff is hereby Dismissed.
Looking to the peculiar facts and circumstances of the case, both the parties are directed to bear, their respective costs.
OS No.15626/2006 91 Draw decree accordingly.
**** (Dictated to the Stenographer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 31st day of January, 2022) [Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) SCHEDULE:
All that piece and parcel of the commercial premises bearing No.101 & 102, "Andrews Building", M.G. Road, Bangalore-560 001 and bounded on:
East by : Private Property.
West by : Passage.
North by : M.G. Road.
South by : Private Property.
[Abdul-Rahiman. A.Nandgadi]
LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) OS No.15626/2006 92 ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: Suresh muthukrishnan. PW.2: D. P Alva.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS: Ex.P1: General Power of Attorney. Ex.P2 & 3: Khatha certificates. Ex.P4 & 5: Khatha extracts.
Ex.P6 & 7: Tax receipts.
Ex.P8 : Letter of Caroline Webb. Ex.P9: Certified copy of Letters of Administration issued by the court.
Ex.P10: Certified copy of the Sale Deed executed by Carolin Webb.
Ex.P11: Copy of the notice issued to the Defendant. Ex.P12: General Power of Attorney dtd.04.09.2019. Ex.P13: Certified copy of Registered Lease Deed dtd.12.06.1986.
Ex.P14 & 15: Two property tax receipts for the years 2019-20.
Ex.P16: Certified copy of the acknowledgment of Registration of firm issued by the Registrar of Firms Hyderabad.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANT: DW.1: T. S Nataraj.
LIST OF EXHIBITS MARKED FOR THE DEFENDANT:
-Nil-
[Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)