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Dhiren Kiri Vs. Suraj Balram Sawhney and Sons - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous (Main) Appeal No. 314 of 1973
Judge
Reported in10(1974)DLT211
ActsCode of Civil Procedure (CPC), 1908 - Order 30, Rule 1
AppellantDhiren Kiri
RespondentSuraj Balram Sawhney and Sons
Advocates: B.D. Sharma and; K.L. Sethi, Advs
Excerpt:
it was ruled that under order 30 rule 1 of the civil procedure code, 1908, one of the partners had the authority to sign the plaint and frame the suit in the name of the firm -however it does not modify any substantive law that all the co-landlords and not one of them have to join as co-plaintiffs in a suit - the modification of the substantive law could only be made by section 2(e) of the delhi rent control act, 1958 - further, the distinction between substantive law and a procedure was discussed - - the tenant was, hewever,not satisfied with this disclosure. 2 :the petition is precisely in accordance with order xxx rule 1. no objection can, thereforee, be raised to it......firm registered under the indian partnership act named m/s suraj balra sawhney and sons. the firm filed an application for eviction of the petitioner from the premises under the-proviso:to section 14 of the delhi rent control act, 1958 (hereinafter cled 'the act) section 37(2) ofthe act requires the controller to follow as-far as may be, the practice and procedure of a court of small causos in holding the enquiry under the act. this procedure is followed by,the controller - under the act unless the act provides differently. as the act is silent as to how a petition under section 14 should be filed by a partnership film, the petition for eviction was filed in .accordance with the provisions of order xxx of the code of civil procedure. order xxx rule 1(1) expressly enables two or.....
Judgment:

V.S. Deshpande, J.

(1) What is the meaning of 'procedure'? Is Order Xxx rule-I Civil Procedure Code 'procedure' or substantive law The question arises in this way.

(2) The petitioner Dr. Dhiren Kiri is a tenant of the respondent firm registered under the Indian Partnership Act named M/s Suraj Balra Sawhney and Sons. The firm filed an application for eviction of the petitioner from the premises under the-proviso:to section 14 of the Delhi Rent Control Act, 1958 (hereinafter cled 'the Act) Section 37(2) ofthe Act requires the Controller to follow as-far as may be, the practice and procedure of a Court of Small Causos in holding the enquiry under the Act. This procedure is followed by,the Controller - under the Act unless the Act provides differently. As the Act is silent as to how a petition under section 14 should be filed by a partnership film, the petition for eviction was filed in .accordance with the provisions of Order Xxx of the Code of Civil Procedure. Order Xxx rule 1(1) expressly enables two or more partners of a firm to. sue or be sued in the name ofthe firm. Under Order Xxx ruli 1(2) a petition could be signed and verified by any one of such partners. Underrule 2(1) 'there of, the defendant (petitioner herein) desired that the names of the partners be disclosed and this has been done before the Controller by the landlord, namely the firm in whose name the petition is signed by one of its partners, namely, Suraj Balram Sawhney. The tenant was, hewever,not satisfied with this disclosure. Hemade anpplication under Order I rulel 1O read with Order Vii rule ll and section 151 Civil Procedure Code submitting that a petition in the name the partnership firm signed and verified by only one of its partners was not maintainable for the following reasons, namely :-

(1) Order Xxx applies to suits only and not tea petition under the Act: and (2) All the partners of the firm are co-landlords and all of them have to join in filing the eviction petition against the tenant. The firn is not a legal entity and the firm cannot, thereforee, file this petition for eviction.

The Controller dismissed the application holding that Order Xxx of the Code of Civil Procedure applies to the procedure before him and, thereforee, the petition was properly filed in the name of the firm signed by one of its partners and that it was not necessary for all the partners to sign the petition. It is this order which is challenged by the tenant under Article 227 of the Constitution before me.

(3) Since the petition is confined to challenging the legality of the order of the Controller, no ground which was not urged before the Controller and which is not, thereforee, discussed in the impugned order can be considered by me in disposing of this petition. The main questions for decision, thereforee, are :-

(1) Whether Order Xxx of the Code of Civil Procedure applies to petitions filed under the proviso to section 14 of the Act and (2) Whether the petition filed by the firm is in accordance with Order XXX? Question No. 1:- Shri B. D. Sharma, learned counsel for the petitioner, urges that the firm not being a legal person, the real landlords of the petitioner are all the partners of the firm. They are co-landlords and not joint landlords. One of the co-landlords cannot, thereforee, sue on behalf of the others and all of them must join in filing the petition against the tenant. Vidyawanti V.Takan Dass (paragraph). The expression 'landlord' is defined in section 2(e) of the Act to mean a person who is entitled to receive the rent of the premises from the tenant. On the admission of the parties,the landlord of the premises is the firm represented by Suraj Balram Sawhney. Even if, thereforee, firm may not be a legal person , interms of the definition of landlord' in section 2(e) it is the firm represented by Suraj Balram Sawhney who is the person entitled to receive the rent from the tenant and who is, thereforee, the landlord of the tenant. It is this person who has filed the petition, for eviction against the tenant. Even in the absence of Order Xxx rule I Civil Procedure Code, thereforee, the petition against the tenant would be justified as having been filed by the admitted landlord of the tenant. Secondly, Order Xxx rule I Civil Procedure Code further justifies the frame of the petition. For, even if all the partners of the firm had been the co-landlords of 'the tenant, which they are not, the petition could be filed in the name of the firm signed by one of the partners. Since the firm is not a legal entity such a petition is regarded as-filed by the partners. But as a matter of procedure one of the partners is enabled by Order Xxx rale I Civil Procedure Code to file the petition. The only right of the defendant is to the disclosure of the names of all the partners. The defendant does not have any right to insist that all the partners must join as competitioners. Shri Sharma argues that under section 45 of the Contract Act it would have been necessary for all the co-landlords to join as co-petitioners and that since order Xxx rule I allows only one of them to file the petition in the name of the' firm, it modifies the provision of a substantive law and in itself is, thereforee, not a matter of procedure but a matter of substantive law. Hecontends,therefore that the provisions of Order Xxx are not attracted by section 37(2)-of the Act. The firm cannot, thereforee, take advantage of Order Xxx rule I Civil Procedure Code in filing this petition.

(4) Lam unable to agree. When Order XXXrule l allows one of the partners to file asuit in the , of the firm, it does not modify the substantive law that all the co-landlords and not only one of them have to join as co-plaintiffs in a suit. For, Order Xxx rule 1 (1) expressly says that ' any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm'. The petition is, thereforee, by the partners in the eye of law. That satisfies the substantive law that the petition has to be by all the co-landlords and not only by one of them. The modification of the substantive law,if any,is made by section 2(e) of the Act and not by Order Xxx rule Civil Procedure Code. For, it is only an enabling provision in Order Xxx rule I under which one of the partners may sign the plaint and frame the suit in the name of the, firm. For, one partner can represent the other partners and his act could be binding on the other partners if it is in the course of the business of the firm. But it is always open to' the other partners of the firm to dispute the authority of one of the partners and to contend that the act of the partner so suing would not be binding on the other partners. This right is of the other partners but not of the defendant. If the other partners are not interested in disputing the right of Suraj I Balram Sawhney in representing the firm for filing the petition for eviction, then the defendant cannot dispute the right.

(5) The distinction between substantive law and a procedure in this respect is clear. Substantive law requires that all the co-landlords must join in suing the tenant and in giving him a valid discharge. This substantive law is modified by section 2(e) of the Act. For, one of the partners representing the firm has been acting as a landlord in respect of this tenant and, thereforee, under the Act he alone is entitled to act as such. The other partners, even if they are co-landlords under the general law, are not entitled to act as landlords under section 2(e) of the Act. Section 45 of the Contract Act and section 2(e) of the Act are, thereforee, provisions of the substantive law. On the contrary, Order Xxx rule I Civil Procedure Code does not change the substantive law at all. It simply enables as a matter of coavenience that the suit by the partners may be filed in the name- of the firm and the plaint may be signed by only one of the partners. The theory underlying this provision is that one of the partners can represent the firm and the suit is really by the partners of the firm even though it may be in the name of the firm. But this presumption is rebuttable. The other partners can object to one of the partners who has chosen to file the petition. There is thus no modification of the substantive law but only a procedural provision is embodied in Order Xxx rule 1. Such a provision is attracted by section 37(2) of the Act and the firm represented by Suraj Balram Sawhney was, thereforee,, entitled to file the petition against the tenant as it did. Question No. 2 :- The petition is precisely in accordance with Order Xxx rule 1. No objection can, thereforee, be raised to it.

(7) Shri Sharma tried to argue several contentions before me such as (1) that the petition for evcition was not an action in the course of of the business of the firm and it could not, thereforee e, be filed in the name of the firm ; (2) that another partner of the firm has raised some dispute against Suraj Balram Sawhney in another litigation ; (3) that Suraj Balram Sawhney has asserted that though the firm is the landlord he alone is authorised to act as the landlord of the premises as it is his property and not the property of the firm and (4) the petition framed under Order Xxx rule I C. P. C. is a fraud on the statute and should not be allowed.

(8) None of these objections were urged before the Controller. They cannot, thereforee, be raised before me. Shri Sharina then referred to the observation of the Controller that the objection to the frame of the petition was barred by resjudicata or constructive rest judicatas He tried to show that th^y were not so barred. I have shown above, however, that apart from rest Judicata the petition was properly framed. ShriSharma then argued that some direction regarding payment of rent should be given by me to the Controller. I am afraid this cannot be done in the present petition inasmuch as it is directed only against the impugned order which is nothing to do with the payment of rent.

(9) For the above reasons, the petition under Article 227 is dismissed with costs.


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