Sunday, 22 December 2019

Whether eviction suit filed by unregistered partnership firm is maintainable?

Contention was raised that the suit was not maintainable since the same was filed by an unregistered firm. Repelling the contention court took the view that a suit for eviction is maintainable by an unregistered firm as such a suit is not a suit to enforce an agreement but a right therefor accrues to a landlord by reason of the provisions of the statute namely Rent Act. We are in agreement with the Patna High Court that the right of a landlord to determine a tenancy. arises under a statute, namely, Transfer of Property Act and later by Rent. Act. The Bombay High Court in Kajaria Traders (India) Ltd. v. Foreign Imports and Exports Association. MANU/MH/0013/1961 : AIR 1961 Bom 65 held that the right to make an application under section 8 of the Arbitration Act for appointment of an arbitrator or arbitrators is a statutory right and not arising from a contract, though it is not conferred in connection with a contract. Landlord is not enforcing his right arising from a contract, but seeking eviction on the basis of the provisions of the Rent Act which is a statutory right, therefore section 69(2) would not be a bar if a petition is filed by the unregistered firm as a landlord. The petition filed by an unregistered firm for eviction is therefore maintainable.

IN THE HIGH COURT OF KERALA

CRP. No. 606 of 1997 (D)

Decided On: 18.03.2004

 Dungarsi Ranchhodas  Vs.  Moolji Visanji

Hon'ble Judges/Coram:
K.S. Panicker Radhakrishnan and Pius C. Kuriakose, JJ.




1. Whether a petition for eviction filed by an unregistered partnership firm under section 11 of Act 2 of 1965 is hit by section 69(2) of Indian Partnership Act 1932 is the question that has come up for consideration in this case. Eviction petition was filed by an unregistered partnership firm represented by a partner on 15-12-1979. While the rent control petition was pending the partnership firm got registered on 21-3-1980. Fact that the partnership firm was not registered on the date of the filing of the rent control petition is not disputed. Rent control petition was verified and signed by a partner of the unregistered firm. Contention was raised since the firm was not registered under the Partnership Act the petition was not maintainable in view of section 69(2) of the Act. Counsel for the tenant placed reliance on the decision of the Madras High Court in Snifuddin Hussainbhoy Siamwala and Others. MANU/TN/0210/1968 : AIR 1968 Mad 154. Counsel also submitted landlord was enforcing right which originated from a contract and consequently the rent control proceeding would fall within the expression other proceedings, consequently the bar under section 69(2) would apply. Counsel appearing for the landlord on the other hand, contended that the landlord is enforcing not a contractual right but a statutory right guaranteed to him under section 11 of the Rent Control Act in case the tenant fails to vacate the tenanted premises. Reference was also made to the decision in Padam Singh Jain v. M/s. Chandra Bros. MANU/BH/0014/1990 : AIR 1990 Pat 95. Counsel also made reference to a decision of the apex court in Haldiram Bhujiaswala v. Anand Kumar Deepak Kumar, MANU/SC/0144/2000 : (2000)3 SCC 250.

2. We may first examine the question as to whether the rent control petition filed under section 11 is hit by Section 69(2) of the Partnership Act. Landlord can seek eviction of the tenant only under the provisions of the Rent Control Act, Act 2 of 1965 not on the basis of the agreement. Kerala Rent Act is a complete machinery providing the rights and obligations of the landlord and tenant. Rights available to the landlord under the general law are substantially curtailed by the provisions of the Rent Act. Section 11(1) enables the landlord to prefer an application for eviction on certain specified grounds. Section starts with a non obstante clause. Expressions "notwithstanding anything to the contrary contained in any other law or contract" require emphasis. The non obstante clause would outweigh or override the contractual obligations of the parties. Non obstante. clause in our view would even override the provisions of the Partnership Act, especially section 69 and so also section 69(2). The rights given to the landlord to file a petition for eviction on any of the grounds envisaged under section 11(1) is statutory right conferred under the Rent Act and not controlled by any other law or contract. We may in this connection refer to the relevant portion of section 11(1) Which reads as follows:

Not with standing anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act.
As per section 11(1)(a) a landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction in that behalf. Reference may also be made to section 69 of the Partnership Act which reads as follows:

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.

The mandatory requirements to be fulfilled before a suit against third party can be filed to enforce contractual rights by the firm or on behalf of the firm are that the firm must be a registered firm and that the person suing are or have been shown in the register of firms as partners of the firm. Those two conditions are to be cumulatively satisfied. There has been difference of opinion on the question whether registration of partnership form is a condition precedent to the filing of suit or whether the defect can be remedied by registration of the firm subsequent to the filing of the suit. In Varadaraiulu Naidu v. Rajamanika Mudaliar. MANU/TN/0161/1937 : AIR 1937 Mad. 767, Jakiuddin Baduddin v. Vithopa Jagannath Godali. MANU/NA/0144/1939 : AIR 1939 Nag. 301, Durjendra Nath Singh v. Govinda Chandra. MANU/WB/0186/1953 : AIR 1953 Cal. 497 held that a suit by an unregistered firm could be validated by the subsequent registration of the firm. The decisions reported in Subramania Mudaliar v. East Asiatic Co. Ltd. MANU/TN/0103/1936 : AIR 1936 Mad. 991, Lokramdas Chatomal v. Tharumal. MANU/SN/0075/1939 : AIR 1939 Sin 206 etc. it has been held that a subsequent registration could not cure the defect which existed at the time of the institution of the suit. In the instant case the firm got registered after the filing of the petition but of no consequence. For deciding the issue before us resolution of such a question is not necessary since the landlord is not enforcing a contractual right, but a statutory right which is available to him under section 11 of the Act.

3. We are in respectful agreement with the decision of the Patna High Court in Padam Singh Jain's case (supra) wherein identical question came up for consideration. Eviction was sought for by the landlord under the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act. Contention was raised that the suit was not maintainable since the same was filed by an unregistered firm. Repelling the contention court took the view that a suit for eviction is maintainable by an unregistered firm as such a suit is not a suit to enforce an agreement but a right therefor accrues to a landlord by reason of the provisions of the statute namely Rent Act. We are in agreement with the Patna High Court that the right of a landlord to determine a tenancy. arises under a statute, namely, Transfer of Property Act and later by Rent. Act. The Bombay High Court in Kajaria Traders (India) Ltd. v. Foreign Imports and Exports Association. MANU/MH/0013/1961 : AIR 1961 Bom 65 held that the right to make an application under section 8 of the Arbitration Act for appointment of an arbitrator or arbitrators is a statutory right and not arising from a contract, though it is not conferred in connection with a contract. Landlord is not enforcing his right arising from a contract, but seeking eviction on the basis of the provisions of the Rent Act which is a statutory right, therefore section 69(2) would not be a bar if a petition is filed by the unregistered firm as a landlord. The petition filed by an unregistered firm for eviction is therefore maintainable.

4. The rent control petition has been filed by an unregistered firm represented by a partner. Admittedly he is receiving rent from the tenant. Expression "landlord" is defined under section 2(3) of the Act which reads as follows:

Landlord" includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant.
The word "landlord" has been defined to includes person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent if the building were let to a tenant. It is an inclusive definition which comprehends within it even an unincorporated association or body or individuals. A firm can also be a landlord, though in the strict legal sense, the firm has no juristic personality and is only a compendious expression to describe the relationship between the partners. Once it is shown that a partner is receiving the rent an unregistered firm also be a landlord.

5. Landlord has sought for eviction under section 11(3), 11(4)(iii) and 11(4)(v). Rent Control Court dismissed the petition on all grounds. Appellate Court confirmed the finding of the Rent Control Court under Section 11(3) and 11(4)(iii). In other words, there is a concurrent finding under section 11(3) and 11(4)(iii). We find no reason to disturb the finding so far as 11(4)(iii) is concerned. Rent Control Court on facts found that the landlord is entitled to get eviction since tenant has got possession of other building. Landlord has specifically stated in the petition that the tenant has started business in the premises 9/304A and that the tenant is also in possession of two other godowns having two rooms each. Tenant in the counter statement stated that he was in possession of the building 9/208. Further it is also pointed out that the space available in that godown is hardly sufficient to store the whole of the goods of the business of Kiran Enterprises. Further it is also admitted by the tenant that he was in possession of the premises 9/304A. Landlord has pointed out that building No. 9/208 and 9/304A would be more than sufficient for the tenant for conducting his business. Tenant has also deposed that one of the godowns in 9/208 was given back to its landlord on a compromise entered into between him and the landlord when a rent control petition was filed in court. Thus the conduct of the tenant would show that the godown was surrendered by the tenant since he was not in need of that godown as there was sufficient space in the other godown in his possession. Tenant did not adduce any evidence to show that the space in his possession is insufficient for his requirement. In the absence of any evidence we are in agreement with the Appellate Authority that the tenant is having possession of other buildings of his own. Appellate Authority has rightly ordered eviction under section 11(4)(iii). Under such circumstance we find no merits in both the revision petitions and the same would stand dismissed. Considering the entire facts and circumstances of the case we are inclined to grant time to the tenant upto 30-8-2004 for vacating the premises provided he files an undertaking in the form of an affidavit before the Rent Control Court within one month that he would vacate the premises within the aforesaid time and that he would pay arrears of rent if any, and also future rent.


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