Kerala High Court
Smt. Lieya And Anr. vs Kaliappa Chettiar on 9 October, 1995
Equivalent citations: AIR1996KER218, AIR 1996 KERALA 218, ILR(KER) 1996 (1) KER 735, (1997) 1 RENCJ 385, (1995) 2 KER LT 783, (1996) 2 RENCR 253, (1995) 2 KER LJ 526
Bench: K.T. Thomas, K.S. Radhakrishnan
ORDER
1. The question whether a rent control petition is maintainable against a partnership firm without individual partners in the array of parties is the one that has come up for consideration in this case.
2. Eviction Petition was filed under Section 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 against M/s. Kali-appa Chettiar Sons, stated to be a registered partnership firm. Objection was filed by the Managing Partner, representing the firm, stating that the petition framed is not maintainable since there is no provision of law under which a rent control petition can be filed against a partnership firm without all its parties in the array of parties. We will first examine the above mentioned legal question.
3. The Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter called the 'Act' is intended to regulate the leasing of buildings and to control the rent of such buildings in the State of Kerala. Section 11 of the Act deals with grounds for eviction of the tenant. The word 'tenant' has been defined under Section 2(6) of the Act to mean any person by whom or on whose account rent is payable for a building and includes the heir or heirs of a deceased tenant, and a person continuing in possession after the termination of the tenancy in his favour, etc. The definition of 'tenant' is an inclusive definition comprehending not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. In other words, the definition of 'tenant' bears both its extended statutory meaning and its oridinary, popular and natural meaning. The Legislature has used the expression 'any person by whom or on whose account' rent is payable. The word 'any' has to be understood as indefinitely to an appreciable extent. In order to decide whether, in a particular instance, the word 'person' includes an artificial person or a Corporation or a company, regard must be had to the setting in which the word 'person' is placed, the circumstances in which it is used, and the context in which it stands. The use of the words 'any' and 'person' are to be understood in that context. The Act does not define the word 'person'. But the word 'person' has been defined under Section 2(26) of the Interpretation and General Clauses Act, 1125, which says that 'person' shall include any company or association or body of individuals, whether incorporated or not. It is true under the law of Partnership,' a firm has no legal existence, apart from its persons. It is merely a compendious entity described, as; partners. The word 'person' shall include an ' association or body of individuals. Partners, who are manifestly a body of individuals, would fall within the definition of 'person' contained in Section 1(26) of the Interpretation and General Clauses Act, 1125. It is, therefore, manifestly clear that since a partnership firm is an association or body of individuals, it will satisfy the definition of 'person' under Section 2(6) of the Act read with Section 2(26) of the Interpolation and General Clauses Act, 1125.
4. The question whether an application for eviction against a firm is maintainable under Clause 13(3), (vi) and (vii) of the CP and Berar Letting of Houses and Rent Control Order, 1949, came up for consideration before the Supreme Court in the decision in M/s. Chhotelal Pyarelal v. Shikarchand, AIR 1984 SC 1570. It was contended that since C.P.C. does not apply to proceedings under the Rent Control Order, no application for eviction can be maintained against a firm in the firm name. It was argued that 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 C.P.C. that a firm can sue and be sued in its own name without the partners being impleaded eonomine. This argument in principle was accepted by the Surpeme Court. The Court, however, held that eviction petition was not liable to be rejected on that ground stating that since the firm as such has been impleaded, the partners of the firm are before the Court, though in a wrong name. The Supreme Court held that it is only a mis-description which can be corrected at any stage of the proceedings. The Supreme Court in Shah Phoolchand Lalchand v. Parvathi Bai, (1989) 1 SCC 556 : (AIR 1989 SC 865) has distinguished the earlier decision in Chhotelal Payarelal's case AIR 1984 SC 1570 on the facts.
5. This Court had occasion to consider the question whether a firm can sue and be sued in a rent control proceedings without impleading the individual partners in Javerilal Kalyanjiv. M/s. Sheth Brothers, 1989(2) KLT 555. A learned single Judge of this Court took the view that the petition in the name of the firm is maintainable despite the non-applicability of Order XXX, C.P.C. to proceedings under the Act. In the above mentioned decision, learned Judge was dealing with the question whether eviction petition filed by -the landlord, a registered firm, without the partners on the array of parties, is maintainable. Learned Judge took the view that the combined effect of Section 2(3) and Section 11(3) of the Act read with the definition of 'person' in Section 2(26) of the Kerala Interpretation and General Clauses Act, 1125 is to enable a firm-landlord to file a petition in its own name. The dictum in Chhotelal Pyarelal's case, AIR 1984 SC 1570, was distinguished by the learned Judge. Another learned single Judge of this Court in Vinod Kumar v. Mohammed Rasheed, 1991 (2) KLT 16 has followed the legal position laid down in Javerilal Kalyanji's case, 1989 (2) KLT 555. Learned single Judge considered the scope of Section 2(6) of the Act read with Section 2(26) of the Kerala Interpretation and General Clauses Act, 1125, and took the view that the proceedings were not vitiated.
6. It is pertinent to note that the word 'tenant' has been defined to mean 'any person by whom' or 'on whose account' rent is payable for a building and includes, etc., etc. This shows that any person by whom or on whose account rent is payable is also a tenant. In a case where a firm is made a party to the rent control proceedings, and no objection has been filed by the firm stating that the firm is not paying rent on behalf of its partners, it cannot be said that the firm is not the tenant within the meaning of Section 2(6) of the Act. Therefore, even if all the partners of the are not made parties and the firm is represented by the managing partner, as a person by whom rent is payable to the landlord, the petition under the Act making the firm alone as a respondent is maintainable. No other interpretation can be placed on Section 2(6) of the Act. In that view of the matter also, we are of opinion that rent control petition filed under the Kerala Act is maintainable against the respondent-firm even without making other partners in the array of parties. It has also come in evidence in the instant case that the firm is a family concern consisting of the father and three children, the father being the managing partner.
7. Learned counsel for the tenant Sri section Ananthasubramanyan has placed reliance on the decision of a Division Bench of this Court in Srenivasa Kammath v. Ananda Kammath & Sons, 1992 (1) KLT 190 (DB), and contended that even if the non-impleading of the partners of the firm is not fatal, the case should go back to the rent control Court for impleading the partners as was done in the above case and also by the Supreme Court in the decision in M/s. Chhotelal Payrelal v., Smkarchand, AIR 1984 SC 1570. The Division Bench did not go into the question whether the petition can be maintained against the firm in the light to the definition of 'tenant' in the Kerala Act read with the definition of 'person' in the General Clauses Act applicable to Kerala. Smt. R. Ranjini, learned counsel who argued for the landlord opposed the prayer maintainig the stand that the eviction petition is sustainable in view of the legal position laid down by Viswanatha Iyer, J. in Javerilal Kalyanji's case, 1989 (2) K.L.T. 555 and followed by K.A. Nayar, J. in Vinod Kumar's case, 1991 (2) K. L. T. 16. We are of the view that the interpretation placed on the definition Clause of 'tenant' under Section 2(6) of the Act read with Section 2(26) of the Kerala Interpretation and General Clauses Act, 1125 is the correct legal position and hence the Supreme Court dictum in Chhotelal Pyarelal case, AIR 1984 SC 1570 rendered under Berar Rent Control Order 1949 is clearly distinguishable on facts. We, therefore, hold that the petition as such is maintainable.
8. In the instant case, tenant is in occupation of building bearing No. 1078/37 in Broadway, Ernakulam, from 1943 onwards, which is a very important commercial street of this City. He is paying a monthly rent of Rs. 300/ -. The building immediately abutting the petition schedule building on the northern side is owned by the petitioners. The second petitioner is presently carrying on a business in stationery items in the front room of the ground-floor of that building. Petitioners are residing in the first floor as well as the rear portion of the ground-floor. Family of the petitioners consists of seven persons. One married son of the 2nd petitioner is intending to return from Israel to settle down in Kerala with family, One daughter has already returned to Kerala. They find it difficult to accommodate all the members of the family in the available space. They have no other building. Thus they claim that they are in dire need of the petition schedule building, for their own use. They also contended that tenant has got other source of income and that other suitable buildings are available in the locality for their business.
9. In the objection filed by the tenant, it was contended that tenant is not liable to be evicted in view of Section 11(17) of the Act since they are in occupation of the building long prior to 1939. It was further contended that there is no bona fide in the petition for eviction.
10. The rent control Court allowed eviction holding that the claim is bona fide and that the petition is maintainable, and that the tenant is not entitled to the benefit under Section 11(17) of the Act. The appellate authority, however, reversed the findings of the rent control Court. Smt. Ranjini, learned counsel for the landlord mounted a frontal attack on the findings of the appellate authority which she characterised as perverse.
11. We have already found that the eviction petition is maintainable without making the individual partners parties to the proceedings. Now we will consider the question whether the findings of the appellate authority are sustainable in law. It is an admitted fact that the petitioners are residing in the adjacent rooms of the same edifice which are on the northern portion of the petition schedule building. It is in evidence that they have converted the front portion of the ground floor into a shop room and started a business in stationery items with an area of 10 \ 10 feet. That room was further divided to start a cassettee shop. In other words, they are accommodating two business concerns in the said shop room. The second petitioner as PW 1 has deposed that she wants to shift her business to the ground floor of the petition schedule building so that they can reside in the first floor of the building. It is in evidence that one of her married sons had to seek accommodation in another rented building because of scarcity of accommodation in the present building. According to her, she is forced to adjust her accommodation in that congested atmosphere. The fact that there are seven family members residing in the building, the fact that her children got married, and the fact that she wants extra space for their reasonable accommodation, are all relevant factors to consider the bona fides of the petitioners. We have gone through the evidence of PW 1. There is no reason to disbelieve the case put up by the petitioners that they require the petition schedule building for their own occupation. The mere fact that one of the sons of the second petitioner left for Israel does not mean that there is no bona fide in the claim of the petitioners, especially when they are running a business in a small shop room, find are staying in another portion of that building. Appellate Authority has committed a grave error in overlooking the above sturdy circumstances. We are constrained to observe that learned District Judge has perversely found that there is no bona fide in the claim of the landlord that she needs the building. No Court would have come to such a finding on the above facts.
12. It was further found by the appellate authority that the tenant is entitled to get the benefit under Section 11(17) of the Act, since according to the appellate authority the tenant occupied the said building prior to 1939. A person who seeks exemption under the sub-section has to establish the same by cogent evidence as the burden is heavy on him. Appellate Authority has wrongly assumed that burden of proof is on the landlord to prove that the tenancy started in 1943. Exts. B1 to B4 relied on by the tenant would not at all show that they have been in occupation of the petition schedule building prior to 1940. It is the specific case of the petitioners that the tenant is in occupation of the building from 1943 onwards. We are of the view that the tenant has not discharged the burden of pleading and proving that they were in continuous occupation of the premises prior to 1940. Thus the finding of the appellate authority regarding Section 11(17) is bereft of any evidence and cannot be supported.
13. We are of the view that the petition for eviction is to be allowed. We, therefore, set aside the decision of the appellate authority and restore that of the rent control Court. In view of the fact that the tenant has been in occupation of the building for a long time, we grant a period of 6 months from today for vacating the building provided the tenant would give an unconditional undertaking within 3 weeks from today before the rent control Court that he would surrender vacant possession of the building to the petitioners. If such an undertaking is not filed within the aforesaid period, the petitioners are free to proceed with the execution proceedings and the tenant would not then be entitled to the benefit of time granted by us. The CRP is allowed as above.