Madras High Court
N.S. Doshi And Company vs P. Ganesan on 26 October, 1987
Equivalent citations: (1988)2MLJ115
ORDER Sivasubramaniam, J.
1. These three revision petitions have been filed against the common judgment in R.C.A. Nos. 42 of 1984, 43 of 1984 and 44 of 1984, on the file of the Appellate Authority, Court of Small Causes at Madras.
2. The revision petitioner in all these revision petitions is a firm, which is a tenant in occupation of three portions in the suit premises, bearing door No. 260, Waltax Road, Madras-3, belonging to the respondent herein. The respondent landlord filed petitions in R.C.O.P. Nos. 3305 of 1982, 3306 of 1982 and 3307 of 1982, on the file of the Rent Controller, Madras for eviction for the respondent firm on the ground that he required the premises for personal occupation. The respondent firm resisted the applications on various grounds. On consideration of the evidence adduced by the parties, the learned Rent Controller passed orders against the tenant. As against the said order the respondent firm preferred these appeals in R.C.A. Nos. 42 of 1984, 43 of 1984 and 44 of 1984, which were also dismissed by the Appellate Authority confirming the finding of the learned Rent Controller. Aggrieved against the said orders, the respondent firm preferred the above revision petitioners.
3. In the grounds of civil revision petitions the firm has raised an objection on the ground that the present eviction petition filed by the landlord against the firm only is not maintainable. The learned Counsel appearing for the petitioner contended that the eviction petitions should be dismissed solely on the ground. Therefore, the landlord has filed these petitions in C.M.P. Nos. 10874 of 1987, 10875 of 1987 and 10876 of 1987 respectively in these three revision petitions for impleading the partners of the petitioner firm as respondents 2 to 4 in these proceedings. The learned Counsel appearing for the revision petitioner also contended that a partnership firm has no separate legal entity and does not have existence, independent of the partners constituting the firm. It was also submitted that the present application for impleading the partners is filed at this belated stages and the landlord should not be permitted to implead them at this stage as they will have no opportunity to cross examine them. My attention has been drawn to the decision of Supreme Court in M/s. Chhotelal Pyarelal, the partnership firm and Ors. v. Shikharchand , where the Supreme Court considered this question and held as follows:
Now there can be no doubt that since the Civil Procedure Code does not apply to proceedings under the H.R.C. Order, no application for eviction can be maintained against a firm in the firm name. The firm is merely a compendious name for the partners constituting it and it is only by virtue of the provisions of Order 30 of the Civil Procedure Code, that a firm can sue and used in its own name, without the partners being impleaded co nominee. It is therefore, clear that the firm of M/s. Chhotelal Pyarelal could not be sued in the firm name by the respondent in so far as the application for eviction under the H.R.C. Order was concerned. But we agree with the Division Bench of the High Court that this cannot by itself result in the dismissal of the application. It would be merely a case of misdescription of the respondents to the application and this misdescription can be corrected at any stage of the proceedings. There can be no doubt that the partners of the firm are before the Court though in a wrong name.
It is thus seen that the petitions cannot be dismissed solely on the ground that the partners have not been impleaded as it is only a case of misdescription of the respondent to the application, and therefore, I have to remit back the matter for the purpose of giving an opportunity to the petitioners to cross- examine the newly added partners, in case of they are examined as witnesses. Accordingly, the applications in C.M.P. Nos. 10874 of 1987, 10875 of 1987 and 10876 of 1987 are ordered and the respondent is permitted to amend the cause title of the original application and all the other connected proceedings by adding the names of the partners of the first respondent is permitted to amend the cause title of the original application and all the other connected proceedings by adding the names of the partners of the first respondent firm as respondents along with the firm of M/s. Doshi and Company. All these three matters are remitted back to the appellate authority so that he may dispose it of on merits. The respondent will carry out the amendment in the application for eviction and in the appeals within two weeks from the date of receipt of a copy of this order, by the appellate authority and the newly added respondents will file their counter statements in the revision petitions within a further period of two weeks thereafter. The appellate authority is directed to dispose of the appeals within four week thereof, after giving opportunity to both the parties to adduce additional evidence if any. As the maintainability of the eviction petitions themselves are being questioned, I have not gone in the merits of the case in these revisions and they are left open to be decided after new parties are impleaded. The Appellate Authority is at liberty to consider the evidence afresh and dispose of the matter on merits.
4. Accordingly, these revision petitions are allowed and remanded for fresh disposal by the appellate authority. No order as to costs in these revision petitions.