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Jhamatmal Sons Vs. Fatima Bi and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Judge
Reported in1975(2)KarLJ264
ActsCode of Civil Procedure (CPC), 1908 - Order 30, Rules 1 and 10; Karnataka Rent Control Act, 1961 - Sections 21(1) and 30
AppellantJhamatmal Sons
RespondentFatima Bi and anr.
Appellant AdvocateV.N. Sathyanarayana, Adv. for ;G.R. Ethirajulu Naidu, Adv.
Respondent AdvocateR. Narayanappa, Adv.
Excerpt:
.....order 23 rule 3-b of cpc. explanation (d) of order 23 rule 3-b of cpc states that a representative suit means, any other suit in law in which the decree passed may, by virtue of the provisions of cpc or of any other law for the time being in force, bind any person who is not named as party to the suit. bombay public trust act comes within the expression ‘any other law for time being in force’. it is settled that the decision under section 50 of the act binds not only the parties to the suit but also those who are interested in the trust. the judgment operates as a judgment in rem and is not merely a judgment in personem. admittedly, the compromise has been entered into by the parties without the leave of the court. in the circumstances, the compromise entered into between the..........the only point urged on behalf of the appellant in this appeal is that the sole proprietor of the firm jhamatmal sons died in 1964 and since he was dead on the date of the eviction proceedings under the rent control act, the order of eviction passed against the firm is a nullity. the objection statement filed by the judgment-debtor in the executing court is to the effect that all the legal representatives of the sole proprietor jhamatmal were not impleaded in the h.r. c. proceedings and that therefore the order passed therein is void. it is contended by mr. narayanappa on behalf of the respondents that smt. devi bai contested the eviction petition in the h. r. c. proceedings in her capacity as the sole proprietary of the firm, that therefore the firm m/s jhamatmal sons was adequately.....
Judgment:

1. The respondents are decree-holders. They as owners of non-residential premises situate in the Civil Station, Bangalore, filed a petition for eviction in H. R C. 188 of 1969 in the Court of the Principal Munsiff, Civil Station, Bangalore, against 'M/s. Jhamatmal Sons' under Section 21 Clause (1) sub-clause (h) of the Karnataka House Rent Control Act, alleging that the respondent to the petition above said is a tenant under them. The eviction petition was contested by Smt. Devi Bai, the widow of Jhamatmal. Jhamatmal admittedly died in the year 1964. The H. R. C, Petition was filed on 11th April, 1969. In the statement of objections filed on behalf of the firm she stated that they have been tenants since the year 1948, that they have been running business as photographers, that the said business is their only source of business, that Jhamatmal Sons is a family business, it was set up in the year 1948 and that the firm has an established business in photography. The petition was dismissed by the trial Court. The appeal filed by the landlords was also dismissed. Thereupon, the landlords filed a revision petition in C. R. P. 2753/72 in this Court which was allowed on 17-8-1973 and eviction was ordered granting one year's time to the tenant to vacate. Thereafter, the decree-holders filed Execution No. 584/74 after the expiry of the period of one year. In the execution proceeding, the judgment-debtor filed objections on 23-8-1974. It was filed by Smt Devi Bai. She stated that the judgment-debtor Jhamatmal Sons is a single proprietary ship firm, that it is not a registered firm, that the decree has been obtained against the firm without proper representation that the sole proprietor of the firm 'Jhamatmal Sons' died long prior to the institution of the eviction proceedings, that no proceedings could have been brought in the name of the firm in the absence of all the legal representatives being made parties to the eviction proceedings and that therefore the decree is void in law. She also filed another statement of objections on 28-8-1974 to the effect that the Court had no jurisdiction to pass the decree of eviction in respect of a non-residential premises against the legal representatives after the death of the original tenant. The executing Court overruled the objections and directed the execution to proceed. The lower appellate Court has confirmed that order. Smt. Devi Bai has come up in second appeal. The appellant in this second appeal is described as 'M/s. Jhamatmal Sons, represented by Smt Devi Bai '.

2. The only point urged on behalf of the appellant in this appeal is that the sole proprietor of the firm Jhamatmal Sons died in 1964 and since he was dead on the date of the eviction proceedings under the Rent Control Act, the order of eviction passed against the firm is a nullity. The objection statement filed by the judgment-debtor in the executing Court is to the effect that all the legal representatives of the sole proprietor Jhamatmal were not impleaded in the H.R. C. proceedings and that therefore the order passed therein is void. It is contended by Mr. Narayanappa on behalf of the respondents that Smt. Devi Bai contested the eviction petition in the H. R. C. proceedings in her capacity as the sole proprietary of the firm, that therefore the firm M/s Jhamatmal Sons was adequately represented in H. R. C. proceedings and that it is therefore not open to her now to raise the contention in the execution proceeding that the order obtained against the firm is void. He has relied on the contents of the Vakalath filed by her in the H, R. C. proceedings on 9-6-1969. In the body of the Vakalath she is described as the proprietor of the respondent-firm. Under the left thumb mark on the Vakalath, she is described as the 'Proprietor 'M /s. Jhamatmal Sons''. Mr. Narayanappa also relied on the statement of D. W. 1 in the H. R. C. proceeding in the course of his evidence. D. W. 1 was the only witness examined on behalf of the tenant in the H. R. C. proceeding. He is one of the sons of Jhamatmal. In cross-examination, he has stated as follows:

'There is a partition deed. I can produce it. This Jhamatmal Sons is of proprietary ship shop viz. after my father's death it was given to my mother. It is not true to say that all my brothers are still joint.'

It is therefore clear that Smt. Devi Bai contested the eviction petition in the H. R. C. proceedings as the sole proprietary of Jhamatmal Sons, though it is not stated so in the objection statement filed by her in the H. R. C. Proceedings.

3. On behalf of the appellant, Shri Satyanarayana, relied on the decision of the learned Single Judge in Rampratap Brijmohandas v. Gavrishankar (AIR 1924 Bom 109). In that case, the suit was filed against the firm Beharilal Bishambhar Das for recovery of certain monies due from Kashiram who was carrying on the business under that name. On the date of the suit Kashiram was dead and the plaintiffs were aware of the fact. When objection was taken on behalf of the defendants that Kashiram was dead and only Gavrishankar can be sued, the plaintiffs prayed for and obtained an order from the Court for amendment of the plaint and substituted Govrishankar's name in the place of the firm. It was held that the suit against the firm was in reality a suit against a dead man and that the defect could not be cured by the amendment that was made, that Govrishankar could not be brought on record except as a legal representative of Kashiram, that he was in fact brought on record as the son and heir of Kashiram and that his liability would be in his character as legal representative of his father, As against this, Mr. Narayanappa relied on the decision of the Division Bench of the same Court in Motilal Jasraj v. Chandumal Hindumal (AIR 1924 Born 155). The defendant in that case was the firm of 'Manmal Chandmal. Chandmal had died prior to the date of the suit. An application to bring his heirs on record was made thereafter and an order was made directing two persons Manmal Hindumal and Kesarimal Brijlal be brought on the record. It is held that though not in form, but in substance, the plaintiff sued the firm of 'Manmal Chandmal', that if the defendant had been simply described as 'the firm of Manmal Chandmal without mentioning the names of the owners or partners of the firm the description would have been sufficient, having regard to the provisions of Order XXX of the Civil P. C, and that the further description of the defendant Chandmal Hindumal as 'the manager and owner of the firm' may be treated as a mere surplusage, that the suit would have been good if the firm had been sued without any further description and that it was really unnecessary to have the heirs of Chandmal on the record as such. It was therefore held that the suit could have been treated as having been filed against the firm of 'Manmal Chandmal'.

4. The scope of Order XXX Rule 10 of C. P. C. was considered in Gambhir Mal Pandiya v. J. K. Jute Mills Co. Ltd. Kanpur : [1963]2SCR190 and it was observed as follows;

'As we have pointed out Order 30 of the Code permits suits to be brought against the firms. The summons may be issued against the firm or against persons who are alleged to be partners individually. The suit, how ever, proceeds only against the firm. Any person who is summoned can appear, and prove that he is not a partner and never was; but if he raises that defence, he cannot defend the firm. Persons who admit that they are partners may defend the firm, take as many pleas as they like but not enter upon issues between themselves. When the decree is passed, it is against the firm, such a decree is capable of being executed against the property of the partnership and also against two classes of persons individually. They are (1) persons who appeared in answer to summons served on them as partners and either admitted that they were partners or were found to be so, and (2) persons who were summoned as partners but stayed away. The decree can also be executed against persons, who were not summoned in the suit as partners, but R. 50 (2) of Order 21 gives them an opportunity of showing cause and the plaintiff must prove their liability. This enquiry does not entitle the person summoned to reopen the decree. He can only prove that he was not a partner, and in a proper case, that the decree is the result of collusion, fraud or the like. But he cannot claim to have other matters tried, so to speak, between himself and his other partners. Once he admits that he is a partner and has no special defence of collusion, fraud etc. the Court must give leave forthwith.

In our opinion, of the three constructions suggested by the learned Attorney-General, the widest meaning cannot be attributed to the word liability. The proper meaning thus is that primarily the question to try would be whether the person against whom the decree is sought to be executed was a partner of the firm, when the cause of action accrued, but he may question the decree on the ground of collusion, fraud or the like but so as not to have the suit tried over gain or to raise issues between himself and, other partners. It is to be remembered that the leave that is sought is in respect of execution against the personal property of such partner and the leave that is granted or refused affects only such property and not the property of the firm. Ordinarily, when the person summoned admits that he s a partner, leave would be granted, unless he alleges collusion, fraud or the like. No such question has been raised in this case, and the decision given by the High Court cannot he disturbed.'

The above observations apply to the facts of this case, since the present appellant Smt. Devi Bai appeared and contested the H. R. C. proceedings in her capacity as proprietary of the tenant-firm and in the present execution proceedings no objection has been raised on the ground that the order of eviction was obtained on the basis of any fraud or collusion etc.

5. Mr. Narayanappa next relied on the decision in Firm Vijaya Nipani Tobacco House v. Sarwan Kumar (AIR 1974 Pat 117). In that case it was contended that the suit was not maintainable firstly, on account of the non jointer of the proprietor of the defendant-firm J. K. Patel and, secondly on account of the non jointer of the other members of the joint family as plaintiffs. The suit was instituted against 'Firm Vijaya Nipani Tobacco House through B. K.. Patel, Managing Director'. It was contended that J. K. Patel was the proprietor of the defendant-firm and the suit having been filed against the firm through B. K. Patel, who is merely a Manager, it was badly framed. It was held that Order XXX Rule 10 enables the partners of the firm to be sued in an assumed name i.e., name of the firm, that the suit against that firm is really a suit against the partners in an assumed name and that the suit is really against that person although he has been sued in the assumed name as if it were a firm name. It was therefore held that the suit was not bad as the description itself makes it clear that the suit was against the partners themselves under Rule 1 and against the particular person himself under Rule 10. The mention of Sri B. K. Patel was really redundant. The decision in AIR 1924 Bom155 was followed. It was also noticed that it was the defendant-firm which appeared in the trial Court and again it was the defendant firm which filed the appeal before the lower appellate Court and it was the defendant firm again which had come up in second appeal and that the parties understood the suit to be one against the firm itself. In the present case also, it is the firm which was described as tenant in the H. R. C proceedings and the objections filed on behalf of the tenant by Smt. Devi Bai was also on the basis that the tenant was the Jhamatmal Sons, In the eviction petition it was also alleged that notice had been issued terminating the tenancy to the tenant-firm.

6. In Jamunadhar Poddar Firm v. Jamunaram Bhukat : AIR1944Cal138 , it was held that a single individual who carries on business under a firm name or an assumed name cannot sue as plaintiff in that assumed name but Order 30 Rule 10 enables a person to sue him as defendant in that assumed name. Accordingly, it was held that a Hindu joint family can be sued in the name of the firm or the assumed name.

7. It is further urged by Mr. Narayanappa that the judgment-debtor is stopped from raising the objection which could have been agitated in the course of the suit for the first time in execution. He relied on the decision in Tatyagouda Ranoji v. Mohodin Sultan (AIR 1935 Bom 95), which supports him.

8. In Askaran Panchiram Firm v. Rabin Brothers (AIR 1952 Assam 86), the suit was, brought upon a hand-note executed by Rabindra Nath Sarma in the name of Rabin Brothers The plaintiff firm sued Rabin Brothers in whose name the promissory-note was executed as well as Rabindra Nath Sarma. The person actually served in the suit was Rabindra Nath Sarma. It is held that when a person who has been served in a suit instituted under the provisions of Order 30, if he is neither the Manager nor a partner, he must appear under protest. But far from doing so, Rabindranath Sarma filed a written statement contesting the suit on merits. In his evidence he did not say that he has nothing to do with Rabin Brothers. It was therefore held having regard to his written statement, that it is reasonable to assume that Rabindra Nath Sarma was carrying on business in the name of Rabin Brothers at he was therefore personally liable and the question of taking proceedings under Order 21 Rule 50 C. P. C. did not arise. In the present case also the H. R, C. proceedings were contested on merits by Smt. Devi Bai. Hence, it must be deemed that she contested and defended the eviction petition on behalf of the tenant-firm in the H. R. C. proceedings.

8A. In Bank of Baroda v. Fishco : AIR1975Cal225 it has been held, following the decision in : [1960]3SCR590 , that when the matter on a question of fact or on a question of law has been decided between two parties in one suit or proceeding and the decision bad become final, neither party between the same parties to canvass the same matter on the principles of res judicata.

9. The eviction proceeding was instituted by the respondent on the basis that the tenant is the firm Jhamatmal Sons. R was defended also on the basis that the tenant is the firm Jhamatmal Sons. It is therefore not open to the judgment decanted that the tenant was somebody else.

10. In the lower appellate Court a notice was sent by the learned Counsel for the Present respondents to the learned counsel for judgment-debtor on 17th February 1975 stating that the respondents proposed to produce a certified copy of the plaint and affidavit dated 8-10-1974 in S. C. No. 152/54 on the file of the Civil Judge, Civil Station, Bangalore filed by Smt. Devi Bai, as well as another document, stating that Smt. Devi Bai was there by under Order 12 Rule 3 C. P. C. to admit execution of the said documents and further to admit the facts stated therein on the next date of learning of the execution appeal. A copy of that notice was dated also filed hearing the signature, acknowledging the notice, of the learned Counsel for judgment-debtor 17-21975. A certificate of posting showing that a letter has been addressed to Smt. Devi Bai and posted on 17-2-1975 was also filed. Both these documents were filed into the Court along with the memo dated 18-2-75 filed on behalf of the respondents. The certified copy of the plaint in Ex. Case No. 152/74 was also produced in the lower appellate Court which shows that the suit was filed by M/s. Jhamatmal Sons for recovery of money against another person. The verification describes Suit. Devi Bai as proprietor of the plaintiff firm and that the original bore the left thumb marks of Smt Devi Bai as plaintiff. The order sheet of the lower appellate Court does not show whether the Judgment-debtor admitted or denied the facts alleged in the notice issued on behalf of the respondents referred to above. But the lower appellate court observed as follows in its judgment:

The Advocate appearing for the respondents referred me to a copy of the plaint in S. C. 152/74 on the file of this court in order to substantiate the Devibai who is served in H. R.C. 188/69 and has taken the notice on be half of Jhamatmal Sons has described herself as proprietary of Jhamatmal Sons. In my opinion this is additional evidence which help me to negative the contention of the appellants that the summons in H. R. C. 188/69 were not served on the person and that Devibai could not have represented the firm Jhamatmal sons in that proceedings .' These observations show that the Judgment-debtor did not deny in the lower appellate court the fact of having filed the plaint in S.C. 152/74. In this court no ground has been urged in the Memorandum of Appeal objecting to the lower appellate court having acted upon the certified copy of the plaint in S. C. 152/74 as part of the evidence. Hence, it must be assumed that in the lower appellate court the judgment-debtor did not deny the fact of having filed the plaint in the above suit. The description of the present Judgment-debtor as the proprietary of Jhamatmal Sons in the plaint in the above suit filed in the year 1974 is consistent with the evidence of D. W. 1, the son of the judgment-debtor in the H. R. C proceeding. It is also consistent with the description of the judgment-debtor in the vakalat filed on her behalf in the H. R. C. proceeding as the proprietor of Jhamatmal Sons.

11. Section 30 of the Mysore Rent Control Act reads as follows: -

'Notwithstanding anything contained in any other law, where the interest of the tenant in any premises is determined for any reason whatsoever and any order is made by the Court under this Act for the recovery of possession of such premises the order shall, subject to the provisions of Section 21, be binding on all persons who may be in occupation of the premises and vacant possession thereto shall be given to the landlord by evicting such persons therefrom: Provided that nothing in this section shall apply to any person who has an independent title to such premises.'

This section also makes it clear that it is not open to the Judgment-debtor to contend that me order of eviction is not binding on her.

12. This appeal is therefore dismissed with costs. The appellant prays for time to vacate and hand over possession. The appellant is allowed ten days' time to vacate and give possession of the schedule premises to the Respondents-decree-holders.

13. Appeal dismissed.


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