Full Judgment
Vasanthakumar, J.
1. This Revision Petition is directed against an order passed on I.A. filed under Section 69(2) of the Indian Partnership Act, 1932 in H.R.C. proceedings No. 3084/86 filed by M/s. Sapthagiri Complex an unregistered Partnership Firm along with all the partners constituting the Firm.
2. The undisputed facts are that an eviction proceeding was initiated under clauses (a), (h) and (j) of proviso to Sub-section (1) of Section 21 of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the Act) for eviction of the tenant from the petition schedule tenanted premises. The 1st-petitioner has been described as M/s. Sapthagiri Complex a partnership firm having its place of business at No. 144/1 APMC Yard, Bangalore-560022 represented by one of the Partners Smt. L.A. Pushpamala and the 2nd, 3rd, 4th petitioners have described themselves as Partners of the first-petitioner firm and 5th petitioner has described himself as partner succeeding to the partnership subsequent to the demise of his father who was partner of the firm.
3. After service of notice, the tenant has contested the matter and has taken up an objection regarding the maintainability of the H.R.C. petition on the ground that the petition as not maintainable as the same does not meet the legal requirements as envisaged under Sub-section (2) of Section 69 of the Indian Partnership Act, 1932 (hereinafter referred to as Act 1932). For purposes of proper appreciation of the contentions raised, it is apt to refer to Sub-sections-1, 2 and 3 of Section 69 of the Act. Section 69 reads as follows:
(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of 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) The enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or
(b) the powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909, or the Provincial Insolvency Act, 1920, to realise the property of an insolvent partner.'
Admittedly, the Firm M/s. Sapthagiri Complex is an unregistered firm, comprising petitioners 2 to 5 as its partners. The question is who are the 'persons suing' in a suit which is instituted by or on behalf of Firm against a third party. For answering the said question one has to turn to the provisions of Section 4 of the Act, Section 45 of the Contract Act and Order XXX Rule 1 of CPC. Persons who have entered into partnership with one another are called individually partners and collectively a Firm and the name under which their business is carried on is called the Firm name. (Vide Section 4 of the Act). Order XXX Rule 1 of CPC enables two or more persons claiming op being liable as partners and carrying on business in India to sue or to be sued in the name of the Firm of which they were partners at the time of accrual of cause of action. Rule 1 shows that individual partners sue or are sued in their collective firm name. Rule 2 provides that on disclosure of the names of partners of the plaintiff-firm, the suit proceeds as if they are named as plaintiffs in the plaint. A suit by or in the name of a firm is thus really a suit by or in the name of all its partners.
1) A suit by or in the name of a Firm is really a suit by or in the name of all its partners. So also a suit against the Firm is really against all partners of the firm.
2) A suit by the Firm is really a suit by all the partners who were its partners at the time of the accrual of the cause of action. The expression 'persons suing' in Section 69(2) therefore means all the partners of the Firm who were its partners at the time of accrual of the cause of action.
4. The first question to decide is whether the present proceeding is one to enforce a right arising from the contract of the parties? Petition for eviction under clauses set out under Section 21(1) of the Act are not the one arising from contract but from statute. Sri Narayana Rao, Sr. Counsel, submits that bar contained in Section 69(2) of Act 1932 applies in ail force to the proceedings initiated under the provisions of Rent Control Act. He invites the Court's attention to the ratio decided in JAGADISH CHANDRA GUPTA vs . KAJARIA TRADERS (INDIA) LTD : [1964]8SCR50 . The relevant paragraph is found at paragraph-9 of the Judgment reads thus:-
'In our judgment, the words 'other proceeding' in Sub-section (3) must receive their full meaning untrammelled by the words, 'a claim of set-off'. The latter words neither intend nor can be construed to cut down the generality of the words 'other proceeding'. The Sub-section provides for the application of the provisions of Sub-section (1) and (2) to claims of set-off and also to other proceedings of any kind which can properly be said to be for enforcement of any right arising from contract except those expressly mentioned as exceptions in Sub-section (3) and sub-section (4).'
It is to be noted that control of eviction of tenants and obligations of landlords is envisaged in Part V of the Act. The opening words of Section 21(1) of the Act are very clear and unambiguous. It is stated:-
'Notwithstanding anything to the contrary contained in any other law or contract no order of decree for the recovery of possession of any premises shall be made by any court or other authority in favour of the landlord against the tenant provided that the Court may on an application made to it make an order for recovery of possession of the premises on one or more of the following grounds namely.'
The grounds on which decree or order for recovery of possession of tenanted premises can be made are enumerated at clauses (a) to (p) of Sub-section (1) of Section 21 of the Act.
The Rent Control Act does not make a distinction between a statutory tenant and contractual tenant as far as powers of the Court to make a decree or order for possession is concerned. Section 21(1) creates a bar against the Court making any decree for eviction unless any one of the grounds enumerated thereunder is available to the landlord to seek eviction of his tenant.
5. It is well known that Partnership firm whether registered under the Indian Partnership Act or not is not a juristic person and has no legal entity and it is collective term for the partners who have entered into Partnership with one another. Section 69 enables the partners to file a suit in the name of the Firm provided it is registered and bars a suit in other cases. So what is to be understood is that in cases of unregistered Firms, suit cannot be filed either in the name of the firm itself or against it, but does not prevent the partners of the unregistered firm from suing or being sued provided all the partners of the firm are on record since firm is only compendious name of partners. Ratio of the case decided in CHHOTALAL DYARELAI : [1985]1SCR268 : is cited at the Bar. In Chhotatal's case, the Supreme Court has observed as follows: at Page 1571 as follows:-
'Now there can be no doubt that since the Code of Civil Procedure does not apply to proceedings under the HRC order, no application for eviction can be maintained against a Firm in the Firm name. The Firm is merely a compendious name for the partners constituting it and it is only by virtue of provisions of Order 30 of the CPC that a Firm can sue and be sued in its own name without partners being impleaded co-nominee. It is therefore clear that the Firm of M/s. Chhotelal Phardal could not be sued in the Firm name by the respondent in so far as the application for eviction under the HRC order was concerned. But we agree with the Division Bench of the High Court that this cannot by itself result in the dismissal of the application. It would be merely a case of misdescription of the respondents to the application and this misdescription can be corrected at any stage of proceedings. There can be no doubt that the partners of the Firm are before the Court though in a wrong name.'
In the instant case all the partners of the unregistered firm are on record. The question of unregistered Firm initiating proceedings in its own name does not arise for purposes of attracting the mandate of Section 69(2) of the 1932 Act.
6. Respondents' Counsel invites the Court's attention to the fact that similar objection as taken by the petitioner in this case was also taken by another tenant in an eviction petition filed by M/s. Sapthagiri Complex and that this Court in C.R.P. 3423/96 on 12-2-1993 upheld the maintainability of the HRC proceedings initiated by all the partners of unregistered firm. It is to be stated that the petitioner has not made out any justifiable ground for interference in respect of the impugned order, as such the order impugned is confirmed. Civil Revision Petition is dismissed. No costs.