SHAH PHOOLCHAND LALCHANDversusPARVATHI BAI

                    SHAH PHOOLCHAND LALCHAND                                       A
                                         v.
                                PARVATHI BAI

                              FEBRUARY 2, 1989

                  [M.H. KANIA AND L.M. SHARMA, JJ.)                                B

          Constitution of India, 1950: Article 136---Contention that part-
     ners of a firm not made parties by landlord in eviction proceeding-
     Such a contention-Whether could be raised at special leave stage.

            Tamil Nadu Buildings (Lease and Rent Control) Act, 1960:
     Section 10(2)(ii)(a)-Unlawful sub-letting-Eviction on that ground-
                                                                                   c
     Whether partners of the firm are to be made parties to such eviction
     petition.

           The appellants are tenants of the premises belonging to the
     Respondent, and have been carrying on business as a partnership firm          D
     in the said premises. The respondent tiled an eviction petition against
     the appellant firm and another firm, on the ground that the appellant
     had unlawfully and without the consent of the Respondent sub-let the
     premises to the other firm. The Trial Court passed a decree for evic-
     tion, against which the appellants preferred an appeal to the Appellate
     Authority. The Appellate Authority dismissed the appeal and upheld            E
     the finding of unlawful sub-letting by the appellants. The appellants
     preferred a Civil Revision petition before the High Court, which was
     also dismissed. The present appeal by special leave is against the High
     Court's decision.

           On behalf of the appellants, it was contended that since the            F
     eviction petition had been tiled without joining the partners of the other
     firm (the sub-tenant) the eviction petition was not maintainable at all.

           Dismissing the appeal,

             HELD: 1. The objection that the eviction petition was tiled           G
-~   against the appellants-firm and the other firm, was not maintainable as
     it had been tiled without joining any of the partners of the said other
     firm as respondents or serving them as partners, had not been raised at
     all till the stage of special leave and it is not open to the appellants to
     raise such an objection at a very late stage and thereby delay matters
     for a number of years. [419F; 420C]                                           H
                                         417
    418                   SUPREME COURT REPORTS            [1989] 1 S.C.R.

         Chhotelal Py are/a/, the partnership firm and others v. Shikhar-
A
    chand, [1985] l S.C.R. 268, distinguished.

           2. There is evidence to show that the other firm was carrying on
    business at the said premises and that the said firm carried on
    business in the said premises even for some time durin.g which the
B   appellants-firm had ceased to carry on the business there. Moreover,       ~
    although a notice was given by the respondent to the appellants and the




                                                                                i
    other firm to produce their income-tax returns, assessment orders as
    well as acconnt books and ledgers for the relevant period, these were
    not produced. It was open to the Trial Court, from these circums-
    tances, to come to the conclusion that had the account books and ledgers
    been produced, they would have shown that rent was received by the
c   appellants from the other firm which would justify the finding of sub-
    letting. [4200-F]                                                          )"•

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1347
    of 1981
D
         From the judgment and Order dated 24.1.1981 of the Madras
    High Court in C.R.P. No. 44 of 1981.

         B.N. Nayar, T.V.S.N. Chari, K. Srinivasan, C.H. Badri Nath,
    R.K. Gupta and Ms. Sudha Srivastava for the Appellants.
                                                                               +
E
          U .R. Lalit and Ambrish Kumar for the Respondent.

          The Judgment of the Court was delivered by


F
          KANIA, J. This is an appeal filed by Special Leave under Article
    136 of the Constitution by the appellants who are the tenants against
                                                                               l
    the respondent-landlady.

        The appellants are a partnership firm and are the tenants of
  premises situate at No. 6 Kasi Chetty Street, G.T. Madras. They carry
  on business there. The respondent filed an eviction petition being
G H.R.C. No. 641of1975 in the Court of Small Causes, Madras against
  the appellants and one other partnership firm, carrying on business in
  the name and style of M/s. Adeshwar Glass Mart on the ground that
  the appellants had unlawfully and without the consent of the respon-
                                                                               ""'
  dent sublet the said shop let out to the said M/s. Adeshwar Glass Mart
  and were liable to be evicted for unlawful subletting under the provi-
H sion of Section 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and
                     PHOOLCHAND v. PARVATHI BAI [KANIA, J.]                 419

        Rent Control) Act, 1960 (hereinafter referred to as "the said Rent
 ·+..   Act"). M/s. Adeshwar Glass Mart were also joined by the respondent
                                                                                  A
        herein as respondents in the eviction petition on the ground that they
        were unlawful sub-tenants. The Trial Court held this ground estab-
        lished and passed a decree for eviction as sought by the respondent.
        The appellants preferred an appeal against this decision to the Appel-
        late Authority under Section 23 of.the said Rent Act, being the Court     B
        of Small Causes at Madras. The said appeal was numbered as H.R.A.
        156 of 1979. The Appellate Authority dismissed the said appeal
        upholding the finding of unlawful subletting by the appellants. The
        appellants then preferred a Civil Revision Petition being C.R.P.
        No. 44 of 1981 in the High Court of Judicature at Madras against the
        aforesaid decision. This Revision Petition was dismissed by the then      C
        learned Chief Justice of the Madras High Court. It is against the deci-
        sion the present appeal is directed.

              Mr: Nayar, learned counsel for the appellants has urged before
        us that the impugned judgment must be set aside as the eviction peti-
        tion was filed against the appellants firm and one other partnership D
        firm, M/s. Adeshwar Glass Mart without joining any of the partners of
        the said firms as respondents or serving them as partners and hence,
        the eviction petition was not maintainable at all. He placed strong
        reliances on the decision of this Court in Chhoteial Pyarelal, the part-
        nership firm and others v. Shikharchand, [1985] I S.C.R. 268. In that
        case an eviction petition was filed by the respondent-landlord against E
        the appellant a partnership firm-under clause 13(3)(iv) and (vii) of the
        Central Provinces and Berar Letting of Houses and Rent Control
        Order, 1949. The appellant raised a preliminary objection that the
        application against the partnership firm was not maintainable without


+       joining its partners as respondents. It was held by this Court that it is
        only by virtue of the provisions of order 30 of the Code of Civil Proce- F
        dure, 1908, that a firm can sue and be sued in its own name without the
        partners being impleaded. It was pointed out by Mr. Nayar that the
        Code of Civil Procedure was not applicable to the proceedings under
        the said Rent Act either and hence, the ratio laid down in the
        aforesaid decision was directly applicable to the case before us. In our
        view, it is not open to Mr. Nayar to raise this contention at this stage at G
        all. This contention is not one which would have been fatal to the
-~      eviction petition. Had this contention been raised in the Trial Court or
        even in the first Appellate Court, it would have been open to the res-
        pondent to amend the eviction petition and join the partners as
        respondents. In the aforesaid decision in Chhote/al Pyare/al's case.
        relied upon by Mr. Nayar the objection to the maintainabilty of the H
    420                      SUPREME COURT REPORTS              [1989] 1 S.C.R.

A   petition was raised at the earliest stage and was wrongly negatived by
    the Trial Court. In fact, this Court observed as follows:                       ~

                 "But we agree with the Division Bench of the High Court
                 that this cannot by itself result in the dismissal of the appli-
                 cation. It would be merely a case of misdescription of the
B
                 respondents to the application and this misdescription can
                 be corrected at any stage of the proceedings. There can be         j.
                 no doubt that the partners of the firm are before the Court
                 though in a wrong name."


c
          In the case before us, no such objection has been raised at all till
    the stage of Special Leave and it is surely not open to the appellants to
    raise such an objection at a very late stage and thereby delay matters
    for a number of years. This contention must, therefore, be negatived.
                                                                                    i
                                                                                    ,,..
         It was next submitted by Mr. Nayar that there was no evidence
  in the case to come to the conclusion that the appellants had sublet the
D
  shop to M/s. Adeshwar Glass Mart. In our view, there is no substance
  in this contention. There is evidence to show that M/s. Adeshwar Glass
  Mart was carrying on business at the said premises and that firm was
  carried on business in the said premises even for some time during
  which the appellants-firm had ceased to carry on the business there.
E
  Moreover, although a notice was given by the respondent to the appel-             ~
  !ants and M/s. Adeshwar Glass Mart to produce their income-tax
  returns, assessment orders as well as account books and ledgers for the
  relevant period, these were not produced. It was surely open to the
  Trial Court from these circumstances to come to the conclusion that
  had the account books and ledgers been produced, they would have
  shown that rent was received by the appellants from M/s. Adeshwar
F
  Glass Mart which would justify the finding of subletting. Jn these
  circumstances, this contention of Mr. Nayar must fail.
                                                                                    +)(



          Although Mr. Nayar wanted us to undertake detailed scrutiny of
    the evidence and to reappreciate the same, we fail to see how we are
    called upon to do so in an appeal under Article 136 of the Constitution.
G
           In the result, the appeal fails and is dismissed with costs.

    G.N.                                                     Appeal dismissed.      *'