Chattisgarh High Court
Ms Rathore Trading Co vs Smt Harminder Kaur on 23 April, 2010
HIGH COURT OF CHATTISGARH AT BILASPUR
Second Appeal No 67 of 1995
Ms Rathore Trading Co
...Petitioners
Versus
Smt Harminder Kaur
...Respondents
! Shri J L Agnihotri with Shri Neeraj Vegad counsel for the appellant
^ Shri Bhaskar Payashi counsel for the respondent
CORAM: Honble Shri Justice Prashant Kumar Mishra
Dated: 23/04/2010
: Judgement
JUDGMENT
Delivered on 23rd April 2010 Second Appeal under Section 100 of the Code of Civil Procedure 1908 The instant second appeal under Section 100 of the Code of Civil Procedure has been preferred by the defendant against whom both the Courts below have passed a decree for its eviction from the suit premises on the ground covered under Section 12(1)(f) of the Chhattisgarh Accommodation Control Act, 1961 (henceforth `the Act, 1961').
2. The suit for ejectment was filed on 5-5-1983 in relation to the shop, a non-residential accommodation, situated at Mahatma Gandhi Road, Jorapara, Raipur, inter alia, on the pleadings that the defendant is the tenant of the plaintiff on monthly rent of Rs.450/- and the defendant is carrying on the business from the suit accommodation in the name and style of Rathore Trading Company. According to the plaintiff, her business has grown and due to this expansion the plaintiff bona fidely needs the premises for continuing the expanded business. She carries on the business in partnership and deals in spare parts of motor cycles, scooters, etc. It was stated that the plaintiff needs the present premises as well as the adjoining shop occupied by Ajanta Electricals, which has fallen vacant in December, 1988 and is in occupation of the plaintiff but the need for the present suit accommodation is still continuing as she needs both the premises for the expanded business.
3. The defendant admitted the relationship of landlord and tenant, however, plaintiff's plea regarding bona fide need was denied and it was stated that the plaintiff is not in business, therefore, there is no question of expansion of her business. It was also stated that the plaintiff has got 3 shops in her possession in the ground floor at Malviya Road and has also obtained possession of the premises situated in the first floor previously occupied by the Bank of Baroda. It was further stated that the plaintiff being a lady has never done any business, therefore, the plea of bona fide need is artificial and that the plaintiff having occupied the portion in possession of another tenant M/s Ajanta Electricals during pendency of the suit the need, if any, has been satisfied.
4. The trial Court, by its judgment and decree dated 9- 10-1991, decreed the suit by directing the defendant to hand over vacant possession of the premises to the plaintiff and also to pay damages at the rate of Rs.100/- per day from 1-4-1983 to 30-4-1983 and thereafter from the date of decree till the date of handing over possession. The trial Court held that the plaintiff has proved her bona fide need and that she has no other reasonably suitable alternative accommodation available in the city of Raipur for doing the business. While deciding issue No.7, the trial Court held that even after obtaining possession of the premises, which was vacated by another tenant M/s Ajanta Electricals, the need has not been fulfilled and the plaintiff still bona fidely needs the present premises.
5. The first appellate Court has affirmed the judgment and decree passed by the trial Court insofar as the eviction is concerned, however, the decree was partially modified by allowing the defendant's appeal with regard to the payment of damages over and above the agreed rent for the period before judgment in the suit.
6. The instant second appeal preferred by the defendant has been admitted by formulating the following substantial questions of law:
"1. Whether under the facts and in the circumstances of the case the courts below were justified in granting a decree under provisions of S. 12(1)(f) of M.P. Accommodation Control Act in favour of the respondent/landlady, specially in view of the fact that the landlady has set up her bona fide requirement by way of amendment and the partnership in which she is said to be a partner as an unregistered partnership and has no entity in the eyes of the law u/s 59?
2. Whether under the facts and in the circumstances of the case, the decree for mesne profits @ Rs.100/- per day and/or Rs.3000/- per month could be awarded by the court below when admittedly the agreed rent between the parties is Rs.450/- p.m.?"
7. Learned counsel for the appellant has submitted that subsequently his applications for raising additional substantial questions of law being I.As.No.6533/95 and 6590/95 under Order 41 Rule 2 of the Code of Civil Procedure have been allowed by this Court and he has been permitted to amend the memo of appeal to incorporate and propose additional substantial questions of law, therefore, it should be treated that all the substantial questions of law proposed in those applications have been allowed and framed by this Court and the appeal should be heard on those substantial questions of law also. The proposed additional substantial questions of law are to the following effect:
"(i) Proposed Additional Substantial Question of Law No.D:
Is the finding of the lower appellate Court that the plaintiff has proved that the accommodation is required bona fide for the purpose of continuing her business is contrary to law and perverse?
(ii) Proposed Additional Substantial Question of Law No.E:
Is the suit barred as the Firms of which the plaintiff claims to be the partner are not registered and plaintiff's name is not shown as partner in the Register of Firms?
(iii) Proposed Additional Substantial Question of Law No.F:
Whether the lower appellate Court was justified in awarding mesne profit at the rate of Rs.100/- per day as against the agreed monthly rent of Rs.450/-?
(iv) Proposed Additional Substantial Question of Law No.G:
Had the lower appellate Court jurisdiction to pass a decree for mesne profit for an amount more than the monthly rent?"
8. I.A.No.6533/95 proposing additional substantial questions of law No.D and E was filed on 26-8-1995, whereas I.A.No.6590/95 proposing additional substantial questions of law No.F and G was filed on 31-8-1995.
This Court admitted the second appeal and formulated 2 substantial questions of law on 31-8-1995 meaning thereby that while allowing the above-said 2 interim applications and permitting the appellant to amend the memo of appeal, this Court had considered the additionally proposed substantial questions of law. This would be more clear when it is seen that the substantial question of law No.(2) framed by this Court is the same as the proposed additional substantial question of law No.F and G regarding awarding of mesne profit at the rate of Rs.100/- per day, which is more than the agreed monthly rent of Rs.450/-. Similarly, the proposed additional substantial questions of law No.D and E would be covered under the substantial question of law No.(1) framed by this Court. Thus, the prayer made by learned counsel for the appellant for framing or hearing this appeal on the additional substantial questions of law is not acceptable because while formulating the substantial questions of law, this Court has already considered the newly added proposed substantial questions of law in the memo of appeal while allowing the 2 interim applications.
9. To answer the substantial question of law No.(1), this Court is required to examine - (i) whether the decree under Section 12(1)(f) of the Act, 1961 is justified, (ii) whether the bona fide requirement pleaded by way of amendment has any adverse effect on the plea of the plaintiff and (iii) what is the effect of the fact that the partnership firm of which the plaintiff claims to be a partner, not being a registered partnership firm, and whether the need of the plaintiff in relation to such a firm is acceptable in view of the fact that such partnership firm has no entity in the eyes of law under Section 69 (wrongly mentioned as Section 59 while formulating the substantial question of law) of the Indian Partnership Act, 1932 (henceforth `the Act, 1932').
10. There is no dispute about the ownership of the plaintiff to the suit premises. There is also no dispute about the relationship of landlord and tenant. There is also no dispute that the partnership firm is neither the landlord nor the owner or title-holder of the suit property, thus, the suit has been preferred by the plaintiff for her own need though as a partner of the partnership firm but there is nothing on record that the suit has been preferred by or on behalf of the partnership firm. The plaintiff has filed Ex.P-2C, a partnership agreement dated 20-8-1981 between herself, Kartar Kaur, wife of Nagendra Singh and Jagdeo Singh, son of Sardar Nagendra Singh. In paragraph 5 of the agreement, it is mentioned that the plaintiff shall be entitled to 20% share in profit and loss including capital gains and losses. The business of the firm is to deal in motor cycles, batteries, tyres, tubes and spare parts or any other business as the parties may decide from time to time. Ex.P-3C is another agreement of partnership dated 14-7-1980 in which the plaintiff has 10% share in the profit and loss including capital gains and losses. Ex.P-4C is a certificate of registration issued by the Central Sales Tax Authority under the provisions of the Central Sales Tax Act, 1956 registering the partnership firm M/s Nagendra Singh and sons. Ex.P-5 is the tenancy agreement dated 26-11-1974 between the plaintiff and the defendant, wherein the plaintiff has been referred as the owner of the suit premises. Ex.P-6 is the legal notice dated 3-8-1982. In course of trial, the plaintiff's attorney-holder Jagdeo Singh was examined as P.W.-1, whereas the defendant examined its partner Dhirajlal Rathore as D.W.-1 and one Anil as D.W.-2.
11. Undisputedly and on bare perusal of the tenancy agreement Ex.P-5, it would be apparent that the tenancy agreement is between the plaintiff and the defendant and there is no contract/agreement of tenancy between the defendant-tenant and the unregistered partnership firm. In view of this undisputed fact, this Court shall now refer to Section 69 of the Act, 1932, which reads thus:
"69. Effect of non-registration.- (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.
(2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.
(3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect,-
(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realize the property of a dissolved firm, or
(b) the powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909 (3 of 1909) or the Provincial Insolvency Act, 1920 (5 of 1920) to realize the property of an insolvent partner.
(4) This section shall not apply,-
(a) to firms or to partners in firms which have no place of business in the territories to which this Act extends, or whose places of business in the said territories, are situated in areas to which, by notification under section 56, this Chapter does not apply, or
(b) to any suit or claim of set-off not exceeding one hundred rupees in value which, in the Presidency-towns, is not of a kind specified in section 19 of the Presidency Small Cause Courts Act, 1882 (5 of 1882), or, outside the Presidency-towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887 (9 of 1887), or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim."
12. To attract the bar contained in Section 69(2) of the Act, 1932, the primary requirement is existence of a contract between the unregistered partnership firm with a third party, however, as indicated above, there is no such tenancy agreement in the present case. The Supreme Court, in Haldiram Bhujiawala and another vs. Anand Kumar Deepak Kumar and another, (2000) 3 SCC 250, after relying on an earlier decision in Raptakos Brett & Co. Ltd. vs. Ganesh Property, (1998) 7 SCC 184, has held that Section 69(2) of the Act, 1932 cannot bar the enforcement by way of a suit by an unregistered firm in respect of a statutory right or a common law right. In Raptakos Brett & Co. Ltd. vs. Ganesh Property (supra), it was held by the Supreme Court that a right to evict the tenant upon expiry of the lease was not a right "arising from a contract" but was a common law right or a statutory right under the Transfer of Property Act, 1882 and that the fact that the plaint in that case referred to a lease and to its expiry, made no difference, hence the said suit was held not barred.
In the present case also, the plaintiff is enforcing its statutory right under the Act, 1961, wherein it is provided under Section 12 that notwithstanding anything contained in any contract or usages a tenant cannot be evicted from a premises unless the plaintiff succeeds in proving one or the other ground mentioned in clauses (a) to (p) of sub-section (1) of Section 12 of the Act, 1961. The right to evict a tenant under the Act, 1961 is, thus, a statutory right, therefore, in view of the law laid down by the Supreme Court in Raptakos Brett & Co. Ltd. vs. Ganesh Property (supra) followed in Haldiram Bhujiawala and another vs. Anand Kumar Deepak Kumar and another (supra) and followed and reiterated in Purushottam and another vs. Shivraj Fine Art Litho Works and others, 2007 JT Vol.4 564, this Court holds that the present suit preferred by the plaintiff for eviction of the defendant is not barred under Section 69(2) of the Act, 1932 even though the plaintiff is a partner of an unregistered partnership firm and more so because in the present case the accommodation is neither owned by the partnership firm nor it is the landlord nor the firm has filed the suit for eviction.
13. The next part of the first substantial question of law is about the justification of granting a decree of bona fide need under Section 12(1)(f) of the Act, 1961 specially when the landlady has set-up her bona fide requirement by way of amendment. To deal with this part of the substantial question of law, this Court shall refer to the plaint. It was initially averred in paragraph 5A of the plaint that the accommodation is required bona fide as the plaintiff's business has grown and there is need for continuing the expanded business in the suit premises. The suit was filed on 5-5-1983 and the amendment in paragraph 5(a) was incorporated by the plaintiff on 14-12-1983. The written statement was filed on 4-5-1984, thus, it would be seen that the amendment regarding the bona fide need to elaborate the earlier pleaded need in paragraph 5A of the plaint was made on 14- 12-1983, i.e., even before the written statement was filed on 4-5-1984. Thus, the amended written statement neither appears to be an after-thought nor was filed after inordinate delay. Moreover, an amendment of pleading once allowed, relates back to the date of filing of the suit, therefore, even if the plea regarding bona fide need, which was earlier made in the plaint was sought to be explained, elaborated and presented in a more specific way by subsequently amending the plaint, it would not defeat or dilute the bona fide need projected by the plaintiff in the plaint. It is to be seen that the bona fide need of a plaintiff in a suit for eviction is a question of fact, which is needed to be proved by way of pleading and by establishing its case by adducing evidence. Once both the parties have led evidence in support of their respective cases in the trial Court, the question as to what was the initial form of pleading becomes insignificant inasmuch as the defendant has got sufficient opportunity to disprove or demolish the plaintiff's case by adducing evidence that the projected bona fide need is not bona fide and that it is artificial. Once the trial Court has recorded a finding of fact regarding the existence of bona fide need in favour of the plaintiff and the same having been affirmed by the first appellate Court it is not open for the second appellate Court to reappreciate the evidence in exercise of powers under Section 100 of the Code of Civil Procedure unless it is shown by the appellant and unless this Court finds that the finding recorded by the Courts below with regard to the bona fide need is demonstrably perverse and that such a finding could not have been recorded in view of the state of pleadings and evidence on record.
In Siddalingamma and another vs. Mamtha Shenoy, (2001) 8 SCC 561 and Sampath Kumar vs. Ayyakannu and another, AIR 2002 SC 3369, it has been held that an amendment made in the plaint relates back to the date of filing of the suit and that once the amendment is allowed, it would be treated as if the pleadings are available from the date of filing of the suit. Thus, this Court finds that the amendment made in the plaint to plead that the present accommodation as well as the accommodation vacated by M/s Ajanta Electricals are needed bona fide by the plaintiff, has no effect on the bona fide need and that it has neither diluted nor defeats the bona fide need of the plaintiff.
14. Learned counsel for the appellant has argued that admittedly the plaintiff is a partner in an unregistered partnership firm and the need projected by the plaintiff is that of an unregistered partnership firm, therefore, the need of the partnership firm cannot be treated as the need of the plaintiff.
Ex.P-2C and P-3C are the agreement of partnership. In the said agreement, the plaintiff is a partner of 20% and 10% share in the business, thus, the plaintiff is not a sleeping partner. She is participating in the business through the partnership firm and thus her need for expansion of business, may be the expansion of the business of the partnership firm but it also remains her need inasmuch as if the business of partnership is growing, the plaintiff, as a partner of the firm is entitled to make arrangements for expanding business of the firm and there is no prohibition in law that a landlord, who is a partner in a firm, cannot file a suit for eviction to evict a tenant for her own need which shall be enjoyed by her by doing business as a partner in the partnership firm. In The South Indian Bank Ltd. vs. Saroja Govindarajan, AIR 2001 Madras 315, it has been held that the need of landlady for carrying the business of the partnership firm of which she is a partner shall be a bona fide need of her own. This Court, thus, finds that the need of the plaintiff, who is an active partner in the partnership firm, is her own need though the same shall be fulfilled by doing business as a partner of the partnership firm.
15. The second substantial question of law formulated by this Court is about the decree passed by the trial Court and affirmed by the first appellate Court granting mesne profit at the rate of Rs.100/- per day from the date of decree till the date of handing over vacant possession.
To answer this question, it is required to refer to the definition of the word "'tenant" in Section 2(i) of the Act, 1961, which reads thus:
"2. Definitions.- In this Act, unless the context otherwise requires -
xxxxx xxxxx
xxxxx
(i) "tenant" means a person by whom or on whose account or behalf the rent of any accommodation is, or, but for a contract express or implied, would be payable for any accommodation and includes any person occupying the accommodation as a sub-
tenant and also, any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made."
16. In Kikabhai Abdul Hussain vs. Kamlakar and others, 1974 MPLJ 485, the Madhya Pradesh High Court held that if a person continues to be in occupation after the termination of the contractual tenancy then on the passing of the decree of eviction he becomes a wrongful occupant of the accommodation since the date of termination. In Smt. Chander Kali Bail and others vs. Jagdish Singh Thakur and another, AIR 1977 SC 2262, the Supreme Court overruled the said judgment of the Madhya Pradesh High Court in Kikabhai Abdul Hussain vs. Kamlakar and others (supra). In Smt. Chander Kali Bail and others vs. Jagdish Singh Thakur and another (supra), the Supreme Court in paragraph 8, after referring to Damadilal and others vs. Parashram and others, AIR 1976 SC 2229, has held that if a suit is filed on the ground of non-payment of rent after termination of the contractual tenancy, the tenant still continues to be a tenant liable to pay rent not only for the past period but in future also and further that in absence of a decree of eviction the person in occupation of the accommodation continues to be a tenant and is not liable to pay any damages as his occupation is not unauthorised or wrongful even after the termination of the contractual tenancy.
In Hasmat Rai and another vs. Raghunath Prasad, (1981) 3 SCC 103, it has been held in paragraph 14 of the report thus:
"14. ....... When a statutory right of appeal is conferred against the decree or the order and once in exercise of the right an appeal is preferred the decree or order ceases to be final. What the definition of `tenant' excludes from its operation is the person against whom the decree or order for eviction is made and the decree or order has become final in the sense that it is not open to further adjudication by a Court or hierarchy of Courts. An appeal is a continuation of suit. Therefore a tenant against whom a decree for eviction is passed by trial Court does not lose protection if he files the appeal because if appeal is allowed the umbrella of statutory protection shields him. Therefore it is indisputable that the decree or order for eviction referred to in the definition of tenant must mean final decree or final order of eviction. Once an appeal against decree or order of eviction is preferred, the appeal being a continuation of suit, the landlord's need must be shown to continue to exist at appellate stage. ...."
17. On a careful reading and upon harmonious application of the law laid down by the Supreme Court in Smt. Chander Kali Bail and others vs. Jagdish Singh Thakur and another (supra) and Hasmat Rai and another vs. Raghunath Prasad (supra), it appears to this Court that the possession of a tenant in the suit premises becomes unauthorised or wrongful when a decree is made which is subject to the final adjudication of his appeal and as long as the appeal preferred by the tenant against the decree of eviction is pending, he remains a tenant as defined under the Act, 1961 and as such his possession in the tenanted premises does not become unauthorised or wrongful. Thus, if the possession is not unauthorised or wrongful, a tenant is not liable to pay mesne profit or any other sum by whatever name called, over and above the agreed rent. Mesne profit is always awarded as damages for wrongful occupation of the premises by the defendant. If the tenant, even after passing of the decree of eviction, remains a tenant as defined under the Act, 1961 and his possession is not unlawful or unauthorised during pendency of the appeal, it cannot be said that he is liable to pay mesne profit. The second substantial question of law is, thus, answered in favour of the appellant and it is held that the decree regarding mesne profit is not legally sustainable. It is held that the tenant is only liable to pay agreed rent during the pendency of the suit of the plaintiff.
18. In view of what has been found above, the first substantial question of law is answered against the appellant and the second substantial question of law is answered in favour of the appellant. Consequently, the decree insofar as it relates to the appellant's eviction, is affirmed, however, the decree against the appellant/tenant directing it to make payment of mesne profit at the rate of Rs.100/- per day from the date of passing of the decree till the delivery of possession is set aside. The instant second appeal is partly allowed. The appellant shall bear the cost of the respondent through out.
19. A decree be drawn-up accordingly.
JUDGE Gopal