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SaifuddIn Hussinbhay Siamwala Vs. the Burma Cycle Trading Co. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtSupreme Court of India
Decided On
Case NumberCivil Appeal No. 432 of 1967
Judge
Reported in(1971)3SCC881
ActsMadras Buildings (Lease and Rent Control) Act, 1960 - Sections 10, 23; Indian Partnership Act - Section 69(3)
AppellantSaifuddIn Hussinbhay Siamwala
RespondentThe Burma Cycle Trading Co.
DispositionAppeal Allowed
Excerpt:
.....nor put into issue -- the appellants purchased a property bearing no. 164 broadway, madras. the rent controller found against the appellants on the question of sub-letting but upheld their claim of bona fide requirement for their own use and occupation. the appellants filed a petition for revision in the high court. the learned judge found that all the four appellants were partners of the firm saleh bros., and it was the partnership which was asking for the possession of the premises in the occupation of the tenant. (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 high..........and the third and fourth appellants who are their sisters. they filed an application before the rent controller at madras under section 10 of the act against the respondent and another on the ground that the premises were required bona fide for their own use, occupation and business and that the tenant had sub-let a portion of the premises. the application for eviction was filed by all the four appellants who were stated to be carrying on business under the name and style of saleh bros. the tenant filed a written statement raising various pleas but it was nowhere alleged or stated that any contract of tenancy had been entered into by the partnership of which the four appellants were the partners.3. before the rent controller the only issues raised were: whether the landlords bona fide.....
Judgment:

A.N. GROVER, J.

1. The only point for determination in this appeal by special leave is whether the present suit for eviction under the provisions of the Madras Buildings (Lease and Rent Control) Act, 1960, hereinafter called the “Act”, was barred by virtue of the provisions of Section 69(3) of the Indian Partnership Act owing to the non-registration of the firm of which the four appellants are the partners.

2. The appellants purchased a property bearing No. 164 Broadway, Madras. The sale deed was executed in favour of the first and second appellants who are brothers and the third and fourth appellants who are their sisters. They filed an application before the Rent Controller at Madras under Section 10 of the Act against the respondent and another on the ground that the premises were required bona fide for their own use, occupation and business and that the tenant had sub-let a portion of the premises. The application for eviction was filed by all the four appellants who were stated to be carrying on business under the name and style of Saleh Bros. The tenant filed a written statement raising various pleas but it was nowhere alleged or stated that any contract of tenancy had been entered into by the partnership of which the four appellants were the partners.

3. Before the Rent Controller the only issues raised were: whether the landlords bona fide required the premises for their own use and occupation and whether there had been any sub-letting by the tenant. The Rent Controller found against the appellants on the question of sub-letting but upheld their claim of bona fide requirement for their own use and occupation. An appeal was taken to the Court of Small Causes, Madras under Section 23 of the Act. During the pendency of the appeal an admission appears to have been made on behalf of the appellants in some miscellaneous petition that they were carrying on business in partnership. Certain other points also arose and the Chief Judge, Small Causes Court, framed some additional issues on which he called for the findings of the Rent Controller. After the remand it was held by him that the application for eviction was not maintainable because the premises were actually required for the purpose of the firm in which only two of the appellants were partners.

4. The appellants filed a petition for revision in the High Court. The learned Judge found that all the four appellants were partners of the firm Saleh Bros., and it was the partnership which was asking for the possession of the premises in the occupation of the tenant. As only two of them were shown in the register of firms as partners their petition for eviction was not maintainable under the Act since it was a proceeding to enforce a right arising out of a contract within the meaning of Section 69(3) of the Partnership Act. He even expressed the view that although the landlords of the premises in question prima facie were the four appellants but in reality and in the eye of law it was an unregistered partnership which owned the premises. As the requirement of an unregistered partnership had to be considered it could not be said that all the appellants were entitled to the possession of the building within the meaning of Section 10(3)(a)(iii) of the Act.

5. Section 69 of the Partnership Act, to the extent, it is relevant is in the following terms:

“69. (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted by or 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) * * *”

6. The High Court, as previously stated, considered that the application for eviction which had been filed by the appellants was in the nature of a proceeding to enforce a right arising from a contract. It is difficult to understand the decision on the point. It is common ground that when the property was purchased by the appellants the tenant attorned to them. It had neither been pleaded nor proved that there was any contract of tenancy between the firm Saleh Bros., and the tenant, the present respondent. In the absence of any pleading on the point by the respondent no issue had been raised by the Rent Controller, quite rightly, on the property belonging to the partnership firm or the latter being the real landlord. It is indeed axiomatic that no proof or evidence can be allowed to be adduced on matters which are neither pleaded nor put into issue. It is quite clear that Section 69(3) of the Indian Partnership Act had no applicability in such circumstances and the High Court was in error in going into this matter at all.

7. The allegations in the eviction petition were simple. The four appellants claimed that they were the owners of the premises and that they required the same for their own occupation and business. The plea of the

tenant was that the appellants had not purchased the premises for their business nor was it required by them for their own occupation or business. The other matter related to sub-letting which was alleged by the appellants but was denied by the respondent. The only issues, therefore, which were framed related to these points and before the Rent Controller it was never claimed on behalf of the respondent that any other issue required determination. The statement in para 5 of the eviction application that the landlords were carrying on business under the name and style of Saleh Bros. and its denial by the respondent by saying that all the applicants were not the partners of that firm did not and could not give rise to any issue of the nature which was determined by the High Court. Once it was held that the High Court could not have decided the case on the basis of the bar contained in Section 69(3) of the Partnership Act there can be no doubt and it has not been disputed that the order of the Rent Controller had been correctly made.

8. The appeal is consequently allowed and the orders of the High Court and Small Causes Court are hereby set aside and that of the Rent Controller restored with costs in this Court. The respondent undertakes to deliver possession within one year from today. On this undertaking having been given, no execution will be taken out by the appellants during the aforesaid period.


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