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Rahmania Trading Company Reptd., by Mohammed Yacob Vs. M.K. Pandarinathan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1984)2MLJ251
AppellantRahmania Trading Company Reptd., by Mohammed Yacob
RespondentM.K. Pandarinathan
Excerpt:
- .....4th september, 1967 the respondent leased his premises no. 13, anna pillai street, madras-1 to 'syed ahamed, son of t.s. abdul rahman, partner, rahmania trading company, residing at no. 6, vidyodaya second east street, thyagaraya nagar, madras-17' for the purpose of carrying on his business for a period of ten years on a monthly rent of rs. 300/-. it is now stated that syed ahamed retired from the partnership sometime in 1974, but this fact was neither known to the respondent, nor was he informed about it. by a lawyer's notice dated 10th june, 1977, the respondent terminated the tenancy in favour of syed ahamed and called upon him to vacate the premises on the ground that the building is bona fide required for his own occupation for carrying on his own business. this was addressed to.....
Judgment:

V. Ramaswami, J.

1. This is a petition under Article 227 of the Constitution of India praying to revise the order of the Court of Small Causes dated 29th March, 1983 made in M.P. No. 14 of 1982 in E.P. No. 752 of 1981 in H.R.C. No. 1896 of 1978.

2. The respondent is the owner of premises No. 13, Anna Pillai Street, Madras-1. One Syed Ahamed was a partner of M/s. Rahmania Trading Company, the petitioner herein. The other partners of the firm were his brother, one Mohammed Yacob, and another Mohammed Yusuf. The firm was carrying on business originally at No. 64, Thatha Muthiappan Street, Madras-1.Under a registered lease deed dated 4th September, 1967 the respondent leased his premises No. 13, Anna Pillai Street, Madras-1 to 'Syed Ahamed, son of T.S. Abdul Rahman, Partner, Rahmania Trading Company, residing at No. 6, Vidyodaya Second East Street, Thyagaraya Nagar, Madras-17' for the purpose of carrying on his business for a period of ten years on a monthly rent of Rs. 300/-. It is now stated that Syed Ahamed retired from the partnership sometime in 1974, but this fact was neither known to the respondent, nor was he informed about it. By a lawyer's notice dated 10th June, 1977, the respondent terminated the tenancy in favour of Syed Ahamed and called upon him to vacate the premises on the ground that the building is bona fide required for his own occupation for carrying on his own business. This was addressed to Syed Ahamed, describing him as 'Syed Ahamed, son of T.S. Abdul Rehaman, Partner, Rehmania Trading Company, No. 6, Vidyodaya East 2nd Street, T. Nagar, Madras-17'. It appears the said Syed Ahamed transmitted this notice to Rahmania Trading Company who by its letter dated 31st August, 1977 claimed that the lease was in favour of the firm, that Syed Ahamed was not a tenant in his individual capacity, that the lease deed was executed in favour of Syed Ahamed for and on behalf of Rahmania Trading Company, that there was a permanent lease in its favour and that, therefore, it cannot be evicted. The petitioner firm also contended that the notice terminating the tenancy treating Syed Ahamed as a tenant was not valid. However, in another letter dated 20th January, 1979, the petitioner informed the respondent that they are entitled to the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act and that it is not claiming any perpetual lease of the suit premises.

3. Notwithstanding the fact that Syed Ahamed disclaimed any leasehold interest in the premises and the firm Rahmania Trading Company asserted its right as a lessee, the respondent filed H.R.C. No. 1896 of 1978 against Syed Ahamed alone treating him as the only tenant in whose favour a tenancy was given by him and refusing to accept that Rahmania Trading Company was a tenant under the respondent. The eviction was prayed for on three grounds, namely (1) that the premises is required bona fide for the owner's use and occupation, (2) that the tenant, Syed Ahamed, had ceased to occupy the building continuously for a period of more than three years without any reasonable cause as it is stated that he had ceased to be a partner and that fact had not been intimated to him and he was not carrying on any business and (3) that there has been a wilful denial of the landlord's title by the tenant by assertion of permanent tenancy rights.

4. The learned Rent Controller, after an elaborate enquiry, held that the bona-fide requirement of the premises for the owner's use and occupation has been made out and ordered eviction. There was some confusion in giving a finding on the two other questions, but that is not relevant for our purpose now. Aggrieved by the order of eviction, Syed Ahamed filed an appeal in H.R.A. No. 2086 of 1979. In the appeal also, the appellate authority held that Syed Ahamed was a lessee, that he had ceased to occupy the premises either as a lessee or as a partner of Rahmania Trading Company after 1-4-1977 and, that, therefore, the order of eviction was justified. The appellate authority also held that it was unnecessary to implead Rahmania Trading Company as a party. The said Syed Ahamed preferred a revision petition in C.R.P. No.l284 of 1981 to the High Court against this order of eviction. This Court also held that Syed Ahamed was the lessee, that he was liable to be evicted and that the order of eviction was justified.

5. While the respondent filed E.P. No. 752 of 1982 for recovery of possession from Syed Ahamed, Rahamania Trading Company which was carrying on its business in the said premises obstructed delivery of possession on the ground that it is the tenant and there being no order of eviction passed against it, it was not liable to be evicted. The respondent thereafter filed M.P. No. 14 of 1982 against Rahmania Trading Company for removal of obstruction in the course of the delivery proceedings. In the counter filed to this petition, Rahmania Trading Company claimed that Syed Ahamed took the lease only for and on behalf of Rahmania Trading Company of which he was then a partner, that the firm had all along been paying rent to the landlord and that, after the retirement of Syed Ahamed the landlord having accepted the rents from the firm, a direct tenancy between him and the landlord has come into existence. It was also pointed out that though the firm has been asserting its rights as a tenant, the respondent-landlord has chosen to file an eviction petition only against Syed Ahamed and that, therefore, any order obtained against Syed Ahamed would not be binding on the firm.

6. The Rent Controller acting as an executing court held that the question as to who is the tenant of the premises having been decided by the Rent Controller, the appellate authority and the High Court in revision, the firm cannot be taken as a lessee under the lease deed dated 4th September, 1967 and the firm is, therefore, not entitled to remain in possession and the removal of obstruction should be ordered. Rahmania Trading Company represented by its partner Mohammed Yacob then filed C.R.P. No. 4504 of 1982 against this order of removal of obstruction in M.P. No. 14 of 1982. This Court by an order dated 8th December, 1982 set aside the order on the ground that the finding in the eviction proceedings had been rendered in the absence of Rahmania Trading Company and that, therefore, that finding is not binding on the firm. It was therefore necessary for the executing Court to consider the petitioner's claim independent of the finding rendered in the eviction proceedings and dispose of the petition for removal of obstruction on the basis of its finding on the materials placed by the petitioner in proof of its independent rights. On these findings, the revision petition was allowed and the order of the Court of Small Causes was set aside and the matter was remanded for fresh disposal with a direction to the Court below to independently consider the petitioner's claim without reference to the findings rendered in the rent control proceedings.

7. After this remand, again by an order dated 29th March, 1983, the Court of Small Causes held that Syed Ahamed was the tenant, that the firm of Rahmania Trading Company was not a tenant and that, therefore, the petition for removal of obstruction had to be ordered and accordingly the petition was allowed and the obstruction by the firm was directed to be removed and possession handed over to the landlord-respondent. It is against this order the present revision petition has been filed.

8. The learned Counsel for the petitioner sought to question the finding of the Court below that Syed Ahamed was the tenant and not the firm. The registered lease deed dated 4th September, 1967, as already stated is in favour of Syed Ahamed, son of T.S. Abdul Rahman, Partner, Rahmania Trading Company, residing at No. 6, Vidyodaya Second East Street, Thyagarayanagar, Madras-17. The reference to his being a partner in Rahmania Trading is only descriptive of the person and could not be stated as the lease itself being in favour of the partner. This is also obvious from the fact that the tenant is stated to be 'residing' at No. 6, Vidyodaya Second East Street, Thyagarayanagar, Madras-17. The firm cannot be said to reside at a particular place, nor was the business of the firm being carried on at No. 6, Vidyodaya Second East Street. As already stated in the earlier statement of facts, originally the firm was carrying on its business at No. 64, Thathamuthiappan Street, Madras-1. The term 'lessee' is also stated to mean and include his heirs, administrators executors and legal representatives. This is inconsistent with the lease deed being in favour of the firm. Every clause in the document refers to Syed Ahamed carrying on 'his' business and not as the firm carrying on 'its business'. The rental receipts produced in this case also are not inconsistent with the lease being in favour of Syed Ahamed in his individual capacity. As already pointed out by the court below, the petitioner-firm should be having accounts and audited trial balance sheet etc. If it was really the firm that paid rents, they could have very well established that the amounts paid for which receipts have been obtained in the name of the firm are only towards rent account of the firm and not the rent account of the individual partner. It is not unusual for a firm to pay on behalf of an individual, partner and debit in his individual account. In the circumstances, therefore, the non-production of the account books showing the nature of payment by the firm only calls for an adverse inference to be drawn against the firm. The Court below also pointed out that in one of the notices issued by the landlord on 13-6-1979 which is marked as Exhibit O-6, the landlord has specifically stated that he is receiving the rent paid by the firm only as rents payable by the said Syed Ahamed, therefore, both on the terms of the lease deed and also on the basis of the rents paid, the only inference possible is that the tenancy was in favour of Syed Ahamed in his individual capacity and the lease was not in favour of the firm.

9. It may also be mentioned that during the pendency of the eviction proceedings taken against Syed Ahamed, the petitioner herein filed H.R.C. No. 4071 of 1979 under Section 8(5) of Tamil Nadu Act 18 of 1960 seeking permission for deposit of rent into Court claiming that the firm was the tenant, that the respondent landlord is refusing to receive the cheques sent to him stating that he will receive rent only from Syed Ahamed, that Syed Ahamed was no longer a partner, that the refusal to receive the rent is illegal and that, therefore, the firm may be permitted to deposit the rent. The landlord who was made a respondent in this petition filed a counter contending that the firm was not a tenant and that Syed Ahamed having lost the eviction proceedings has, with ulterior motive, set up the firm to file that petition. The Rent Controller by an order dated 6th August, 1980, on a consideration of the registered lease deed and the rental receipts and other evidence available, came to the conclusion that Syed Ahamed was the tenant and not the firm and dismissed the petition. The firm preferred an appeal against this order in H.R.A. No. 538 of 1981. The appellate authority also, considering the terms and conditions of the lease deed and other documents available, held that the lease was in favour of Syed Ahamed and Rahmania Trading Company was not the lessee. That finding had become final and being a finding inter-parties it is also binding on the petitioner-firm in these proceedings.

10. There has also been one other proceeding which may be referred to at this stage. The petitioner-firm represented by its partner, Mohamed Yakub filed O.S. No. 5224 of 1981 on the file of the City Civil Court, Madras against the landlord and the said Syed Ahamed praying to restrain the respondent -landlord from executing the order of eviction passed by the Rent Controller in H.R.C. No. 1896 of 1978 against Syed Ahamed and pending the suit, filed I.A. No.l0684 of 1981 in that suit praying to grant an ad interim injunction restraining the landlord from executing the order of eviction. That petition was dismissed on 16th September, 1981 and the appeal in C.M.A. No. 147 of 1981 filed against the order of dismissal of I.A. No. 10684 of 1981 was also dismissed on the ground that Rahmania Trading Company was not the tenant and the eviction order could be executed against Syed Ahamed. This Court also dismissed on 1-12-1981, C.R.P. No. 3691 of 1981 filed against the order in C.M.A. No. 147 of 1981.

11. The learned Counsel for the petitioner relying on the decision reported in M i I e s v. Clarks (1953)1 AELR 779 sought to argue that the leasehold right may be treated as property of the firm. There is no evidence in this case to show that the leasehold right was thrown into the common stock of the partnership on was treated as a partnership asset and this contention, therefore, could not be accepted.

12. In the foregoing circumstances, it is not possible to accept the case of the petitioner that Syed Ahamed was the lessee for and on behalf of and for the benefit of Rahmania Trading Company.

13. In this Court, the learned Counsel for the petitioner raised a new plea and that is the application for removal of obstruction is not maintainable under Order 21, Rule 97, Code of Civil Procedure. The relevant rules for consideration are Rules 97, 98 and 101 and they may be usefully extracted below.

97. Resistance or obstruction to possession of immovable property-

(1) Where the holder of a decree for possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistence or obstruction.

(2) Where any application is made under Sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

98. Orders after adjudication:

(1) Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination and subject to the provisions of Sub-rule (2),-

(a) make an order allowing the application and directing that the applicant be put in possession of the property or dismissing the application; or

(b) pass such other order as, in . the circumstances of the case, it may deem fit.

(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.

***

101. Questions to be determined:

All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be by the Court dealing with the application and not by a separate suit and for this purpose the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

The learned Counsel contended that an application under Rule 97(1) has to be adjudicated upon in accordance with the provisions in Rule 98(2) and that unless the obstruction is one caused by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, the application for removal of obstruction could not be entertained. I am unable to agree with this contention. Under Rule 101, all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 shall be determined by the Court dealing with the application and not by a separate suit. Upon the determination of the question under Rule 101, an order shall be made allowing the application and directing the applicant to be put in possession of the property or dismiss the application or pass such other order as it may, in the circumstances . of the case, deem fit. In my opinion, Rule 98(1) is applicable to a case- where the obstruction was by a person other than the judgment-debtor or by some other persons at his instigation or on his behalf. The words, 'subject to the provisions of Sub-rule (2)' in Rule 98(1) only mean, in the case of obstruction by the judgment debtor or any of those mentioned in Clause (2), not only the Court can direct the applicant to be put into possession of the property but also to detain the judgment-debtor or the person acting at his instigation or on his behalf in civil prison for a term which may extend to thirty days. In cases where the obstruction is not by the judgment-debtor or any of those mentioned in Clause (2), there is no power for the Court to detain that person in civil prison. It may also be mentioned that when a person other than the judgment-debtor is dispossessed, he may make an application to the Court under Rule 99 complaining of such dispossession and that will also have to be disposed of in accordance with Rules 100, 101 or 98. I have no doubt, therefore, that this application for removal of obstruction was maintainable and the order made by the Court was valid.

14. For the foregoing reasons, the civil revision petition fails and it is dismissed with costs. Counsel's fee Rs. 500/-.


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