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Mohan Lal Manjhi Vs. Baldeo Raj Khanna and anr. - Court Judgment

LegalCrystal Citation
Subject;Property
CourtPatna High Court
Decided On
Case Number Appeal from Appellate Decree No. 121 of 1986(R)
Judge
AppellantMohan Lal Manjhi
RespondentBaldeo Raj Khanna and anr.
DispositionAppeal Allowed
Excerpt:
.....for the enforcement of right arising from contract--even if plaintiff-appellant is an unregistered firm, suit for eviction is not barred under section 69(2)--it was also held that suit for eviction on any ground available under rent control act cannot be said right arising from a contract of tenancy--impugned order set aside and trial court's order restored. - - 75/-.it is alleged that the defendant had failed and neglected in payment of rent since april 1983 and hence he is liable to be evicted under section 11(1)(a) of the bihar building (lease, rent and eviction) control, act, 1983. it is further alleged that the defendant, in breach of the terms of tenancy, sub-let the suit premises. learned counsel submitted that the appellate court has committed serious error of law insofar as it..........be sustained in law.17. in the result, this appeal is allowed. the judgment and decree passed by the court of appeal below is set aside and that of trial court is hereby restored. accordingly, the suit is decreed. in the facts and circumstances of the case, there shall, however, be no order as to costs.
Judgment:

M.Y. Eqbal, J.

1. This appeal, at the instance of the plaintiff/appellant, is directed against the judgment and decree dated 26-7-86 passed by the 2nd Addl. Sub-Judge, Dhanbad in T.A. No. 47/85 whereby the learned Court below has allowed the appeal and reversed the judgment and decree passed by the Munsif, 1st Court, Dhanbad in Title (Eviction) suit No. 44/84 and dismissed the suit filed by the plaintiff for a decree of eviction of the defendant-respondent from the suit premises.

2. Short facts of the case are that the plaintiff instituted the aforementioned suit for a decree of the eviction of the defendant on the ground of default in payment of rent and also on the ground of sub-letting. Plaintiffs case is that he (Mohanlal Manjhi) and his brother through Popet Lal Chouhan inducted the defendant in a portion of the suit premises on monthly rent of Rs. 75/-. It is alleged that the defendant had failed and neglected in payment of rent since April 1983 and hence he is liable to be evicted under Section 11(1)(a) of the Bihar Building (Lease, Rent and Eviction) Control, Act, 1983. It is further alleged that the defendant, in breach of the terms of tenancy, sub-let the suit premises.

3. The defendant-respondent contested the suit by filing written statement stating, inter alia, that the suit is barred by the principles of acquiescence, waiver and estoppel as also misjoinder and non-joinder of parties. Defendant's further case is that the plaintiff being an unregistered firm, the suit for eviction is not maintainable and is barred under Section 69(2) of the Indian Partnership Act. It is alleged that Mohanlal Manjhi and Brothers is a partnership firm and the same not having been registered under the Partnership Act, cannot maintain the suit. The defendant also denied non-payment of monthly rent to the plaintiff.

4. The trial Court framed as many as seven issues and decided all the issues in favour of the plaintiff/appellant. The trial Court held that the plaintiff is a Hindu undivided family business and, therefore, it comes within the inclusive definition of the term landlord' and it can maintain a suit for eviction. The trial Court, therefore, decreed the suit.

5. The defendant/tenant preferred an appeal against the judgment and decree of the trial Court being T.A. No. 47/85. On perusal of the judgment of the lower appellate Court, it transpires that the tenant assailed only that part of the findings of the trial Court whereby it was held that the plaintiff can maintain suit for eviction. The appellate Court decided only that issue not relying upon a decision in the case of Firm Laduram Sagarmal v. Jamuna Prasad Choudhuri AIR 1939, Patna 239 and in the case of Sriram Sardarmal Gidiuani v. Gourishanker & Rameshwar Joharmal : AIR1961Bom136 , held that the plaintiff being unregistered firm cannot maintain a suit for eviction against the defendant and the same is barred under the provisions of Section 69(2) of the Partnership Act. Hence, this appeal.

6. At the time of admission of this appeal, the following substantial questions of law were formulated:

Whether suit for eviction filed by the plaintiff against the defendant could have been dismissed only on the ground that the plaintiff is an unregistered firm.

7. I have heard Mr. M.M. Banerjee, learned Counsel for the appellant. None appears on behalf of the respondent-tenant.

8. Mr. Banerjee learned Counsel, assailed the impugned judgment and decree of the appellate Court as being illegal and contrary to facts and evidences on record. Learned Counsel submitted that the appellate Court has committed serious error of law insofar as it failed to take into consideration the fact that the suit was filed by and on behalf of Hindu Undivided Family Business by Sri Popatlal Manji Chouhan Learned Counsel further submitted that the Court of appeal below has failed to meet the reasonings given by the trial Court that the plaintiff/appellant is not a partnership firm, rather, Undivided Hindu Family Business. Learned Counsel lastly submitted that even then suit for eviction is maintainable by or on behalf of unregistered firm and the same is not barred under the provisions of the Partnership Act.

9. From perusal of the judgment of the appellate Court, it transpires that the Court below after-re-appraising the entire evidence both oral and documentary, has come to a finding of fact that the plaintiff is unregistered partnership firm. I am, therefore, not supposed to interfere with the findings of fact arrived at by the Court, below under Section 100, C.P.C. The only question, therefore, which falls for consideration is as to whether an unregistered firm can maintain a suit for eviction and seek a decree of eviction against the tenant.

10. In order to decide this question of law involved in this appeal, it would be useful first to look into Section 69 of the Partnership Act which reads as under .

69. (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...)

11. From perusal of the aforesaid provision, it is manifest that a suit instituted by an unregistered firm against a third party for enforcement of right arising from a contract is not maintainable. In other words, an unregistered firm cannot maintain a suit against a third party for the enforcement of right arising from contract. It is, therefore, necessary to find out as to whether the plaintiff has sought to enforce their right arising from the contract. As noticed above, the plaintiff sought a decree of eviction of the defendant on the ground of default in payment of rent and also on the ground of sub-letting. In this respect, relevant portions of the plaint are quoted herein below:

That the defendant No. 1 is from the very beginning irregular in the payment of the house rent and the plaintiff has always repeatedly demanded the house rent.

That the defendant No, 1 is a habitual defaulter and has failed and neglected to pay the monthly house rent due in respect of the tenanted premises described in Schedule 'B' of this plaint which is part and parcel of the Schedule 'A' of the plaint from the month of April 1983 and onwards.

That the plaintiff has repeatedly requested and demanded the house rent from the defendant No. 1 on and from April 1983 but the defendant No. 1 has refused and neglected to pay the house rent and thus a sum of Rs. 900/- only is due from the defendant No. 1 as arrears of rent which is described and mentioned in Schedule 'C' of the plaint.

That the rent for more than two months lawfully payable by the defendant No. 1 to the plaintiff having not been paid by the defendant. No. 1, the defendant No. 1 has become a defaulter in eye of law and is liable to be evicted from the tenanted premises.

That recently the defendant No. 1 has constructed his own house and has shifted in his own house and without any consent the defendant No. 1 has sub-let the tenanted premises to the defendant No. 2 on higher rent and the defendant No. 2 is living in Block No. 10, the Schedule 'B' premises of the plaint.

That the defendant No. 1 has violated the conditions of the tenancy by sub-letting the same to the defendant No. 2 without the consent of the plaintiff-landlord.

12. It is, therefore, evident that the defendant was inducted by the plaintiff as a tenant in respect of a portion of the suit premises and it was agreed that the rent shall be payable monthly according to English calendar month. Since the defendant defaulted in payment of rent and sub-let the premises, the plaintiff filed the suit for a decree of eviction under the Special Act, namely, Bihar Building (Lease Rent and Eviction) Control Act and not for the enforcement of the right arising from a contract.

13. For better appreciation, Section 11 of the said B.B.C. Act is quoted hereinabelow:

11. Eviction of tenants.-(1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 (Act XIV of 1947), and to those of Section 18, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds:

(a) for breach of the conditions of the tenancy or for sub-letting the building or any portion thereof without the consent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment.

(b) Where the condition of the building has materially deteriorated owing to acts of waste by, or negligence or default of, the tenant or of any person residing with the tenant or for whose behaviour the tenant is responsible ;

(c) Where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord.

14. On a look of the aforesaid provision it is clear that this section imposes complete bar on the eviction of a tenant notwithstanding there is a contract to the contrary unless a decree for eviction of a civil Court is obtained on the grounds enumerated in that section.

15. It is, therefore, clear that the suit was filed by the plaintiff for enforcement of legal right created under the Act and not for the enforcement of right arising from contract. That being the position, even assuming that the plaintiff is an unregistered firm, I am of the definite opinion that the suit for a decree of eviction is not barred under Section 69(2) of the Partnership Act. The Court of appeal below has wrongly relied upon the decision in the case of Firm Laduram Sagarmal (supra) and in the case of Sardarmal Didwani (supra). In those cases, the suit was filed by an unregistered firm for enforcement of their right arising from a contract. In other words, in those cases the plaintiff filed the suit for recovery of money under Sale-Purchase Agreement and they were not enforcing their statutory right against a third party. In that context their lordships held that suit for eviction by an unregistered firm is not maintainable.

16. Having regard to the facts and circumstances of the case and the law discussed hereinabove, it can be safely held that when a suit for eviction is based on any of the grounds available under the Rent Control Act, it cannot be .said that the suit is for enforcement of right arising from a contract of tenancy. Such a suit, therefore, cannot be barred under Section 69(2) of the Partnership Act. The judgment and decree of the Court of appeal below, therefore, cannot be sustained in law.

17. In the result, this appeal is allowed. The judgment and decree passed by the Court of appeal below is set aside and that of trial Court is hereby restored. Accordingly, the suit is decreed. In the facts and circumstances of the case, there shall, however, be no order as to costs.


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