ORDER
S. Rajeswaran, J.
1. This Civil Revision Petition has been filed against the order dated 13.1.2003, passed in R.C.A. No. 366/2002 on the file of the VII Court of Small Causes, Madras, setting aside the order of eviction dated 28.3.2002 passed in R.C.O.P. No. 926/2000, on the file of the XIII Court of Small Causes, Madras.
2. The brief facts leading to the Revision Petition are as follows:
The Revision Petitioners filed RCOP No. 926/2000 on the file of 13th Court of Small Causes, Chennai against the respondents herein for eviction under Section 10(2)(i), 10(2)(ii)(a), 10(2)(ii)(b), 10(2)(iii) and 10(3)(a)(ii) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 (hereinafter called 'the Act'). By order dated 28.3.2002, the Rent Controller allowed the RCOP on all the grounds and ordered eviction against which the 1st respondent herein filed Appeal in RCA No. 366/2002 and the Rent Control Appellate Authority by order dated 13.1.2003 reversed the order of the Rent Controller and allowed the Appeal. Aggrieved by the order of the Appellate Authority dated 13.1.2003, the above Revision Petition has been filed under Section 25 of the Act.
3. The case of the Revision Petitioners is that the premises in Ground Floor and First Floor in High Towers situated at No. 40-A, Nungambakkam High Rioad, Chennai.34 was leased to the 1st respondent herein. The rent and amenity charges payable for the ground floor is a sum of Rs. 18,634/- per month and a sum of Rs. 13,552/- per month for the first floor. The 1st respondent committed wilful default in payment of the rent for the period December 1999 to May 2000. The 1st respondent has also committed waste in the first floor of the building by demolishing the bath room without the permission of the Revision Petitioners. The 1st respondent has also sub-let the leased property to the 2nd respondent herein and the 1st respondent is also using the property for the purpose other than the purpose for which it was let out. The Revision Petitioners also require the property for the business of their son who was doing business in a rented premises at Purasawalkam by paying a huge monthly rent of Rs. 29,000/-. Therefore the eviction was sought for on the ground of wilful default, committing act of waste, sub-letting, using the property for other purpose and also on the ground of bona fide requirement of the property.
4. The 2nd respondent herein who was the sub-tenant, according to the Revision Petitioners, was also added as a party in RCOP No. 926/2000 but they did not choose to contest the same and remained exparte. The 1st respondent resisted the eviction proceedings as not maintainable on the ground that the business carried on in the petition premises was by a partnership firm and the RCOP was filed only against one partner, without adding the other partner as a party. According to the 1st respondent no wilful default was committed by him and it was the Revision Petitioners who refused to receive the rents from them. He further contended that the property was not sub-let to the 2nd respondent as alleged by the Revision Petitioners. He only entered into a franchisee agreement with the 2nd respondent for a commission of 20% on actual MRP sales. Further the allegation made against him that he had demolished the bathroom in the first floor and thereby committed an act of waste is false as the same was done with the oral consent of the Revision Petitioners and the property is being used only for running a sports and allied goods shop as mentioned in the lease agreement. The Rent Controller did not accept the contentions raised by the 1st respondent herein and allowed the RCOP and ordered eviction.
5. The Appellate Authority even though accepted that the 1st respondent has committed wilful default and the Revision Petitioners bonafidely required the premises for the use of their son, allowed the Appeal on the ground that as the partnership firm and the other partner were not added as parties in the RCOP, the same was not maintainable.
6. The learned Counsel for the Revision Petitioners submitted that having admitted that the 1st respondent has committed wilful default and having rendered a finding that the petition premises was bonafidely required by the Revision Petitioners for the business of their son, it is not proper on the part of the Appellate authority to dismiss the RCOP on a hyper-technical ground. The learned Counsel for the petitioners further urged that the findings of the Appellate Authority with regard to the act of waste committed by the 1st respondent, sub-letting the petition property to the 2nd respondent and using the property for other purpose are also against the evidence on record and consequently the order of the Rent Controller is to be upheld. In support of his contentions, he relied on the judgment reported in : [1989]1SCR417 (Shah Phoolchand Lalchand v. Parvati Bai) and : AIR1996Ker218 (Lieya v. Kaliappa Chettiar).
7. Per contra, the learned Counsel for the 1st respondent submitted that in the absence of the partnership firm and the other partner as parties in the RCOP, the same is not maintainable. He also supported the other findings of the Appellate Authority while dismissing the RCOP filed by the Revision Petitioners. He also relied on the judgment reported in : [1989]1SCR417 cited supra and the other decision of this Court reported in 1989 (1) L.W. 221 (Ramakrishna and Bros, etc., v. T.P.N. Manickavalli).
8. First let me consider whether the RCOP is not maintainable as the partnership firm and the other partner were not added as parties.
9. It is not in dispute that two lease agreements were executed between the Revision Petitioners and the 1st respondent herein on 2.4.1999 for leasing out the ground floor and 1st floor in the building known as High Towers bearing No. 40-A, Nungambakkam High Road, Chennai.34. These two agreements were marked as Exs.R1 and R2. A mere glance of the two agreements would establish that the 1st respondent alone entered into the lease agreement with the Revision Petitioners as lessee to run the sports and allied goods shop. It is only mentioned therein that the 1st respondent is carrying on business by the name 'Noble Enterprises' and it was not mentioned whether 'Noble Enterprises' is a partnership firm. In such circumstances, it cannot be said that the lessee is a partnership firm. Whereas, in fact, the lessee is only the 1st respondent in his individual capacity. Insofar as the Revision Petitioners as landlords are concerned, the property was let out to the 1st respondent alone. It is true that the Rent Controller has not framed any issue with regard to maintainability of RCOP in the absence of the partnership firm and the other partner as parties. But this question was duly considered by her and a finding was rendered that it was not proved that the 'Noble Enterprises' is a partnership firm. The Appellate Authority after framing an issue with regard to the maintainability has held that 'Noble Enterprises' is a partnership firm with another partner and as the firm and the other partner were not added as parties in the RCOP, the RCOP itself is not maintainable even though it was proved that wilful default was committed by the 1st respondent herein and the Revision Petitioners proved their bona fide requirement of the petition property for the business of their son.
10. As already held by me, the lease agreements were entered into by the 1st respondent herein as a lessee in his individual capacity and nowhere it was mentioned therein that the business is a partnership firm. In such circumstances the RCOP filed against the 1st respondent alone, is absolutely in order and is very much maintainable. Once I hold that the RCOP is maintainable as against the 1st respondent alone, then the respondents herein are liable to be evicted from the petition property as both the authorities below have concurrently held that the 1st respondent has committed wilful default in the payment of rent and the Revision Petitioners herein have proved their bona fide in requiring the petition property for the business of their son. It is also to be pointed out that the 1st respondent has not filed any Revision Petition challenging the findings of the Appellate Authority that he has committed wilful default and the Revision Petitioners bona fide requirement of the petition property for the business of their son.
11. In AIR 1989 S.C. 865 (supra) (which was relied on by both the parties), the Hon'ble Supreme Court held as follows:
3. Mr. Nayar, learned Counsel for the appellants has urged before us that the impugned judgment must be set aside as the eviction petition was filed against the appellants firm and one other partnership firm, M/s. Adeshwar Glass Mart without joining any of the partners of the said firm 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 Chhotelal Pyarelal, the partnership firm v. Shikharchand : [1985]1SCR268 . In that case an eviction petition was filed by the respondent-landlord against the appellant - a partnership firm - under clause 13(3)(vi) 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 Procedure, 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 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 respondent to amend the eviction petition and join the partners as respondents. In the aforesaid decision in Chhotelal Pyarelal's case relied upon by Mr. Nayar, the objection to the maintainability of the petition was raised at the earliest stage and was wrongly negatived by the trial Court. In fact, this Court observed as follows (at p.1571):
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 the proceedings. There can be no doubt that the partners of the firm are before the Court though in wrong name. 4. 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.
12. In the above decision, the Hon'ble Supreme Court held that a plea that partners were not made parties in the eviction petition cannot be allowed to be raised for the first time in Appeal. This decision is clearly distinguishable on facts as in the case on hand, the lease agreements were entered into by the 1st respondent as an individual and not as a partner of a partnership firm.
13. In (cited supra), a Division Bench of Kerala High Court, after referring to the decision in held that eviction petition against a partnership firm is maintainable even if partners are not impleaded.
14. This judgment seems to support the case of the Revision Petitioners to some extent.
15. But the learned Counsel for the 1st respondent placed strong reliance on a decision of this Court reported in 1989 (1) L.W. 221, (cited supra) in which a learned single Judge of this Court allowed the amendment petition filed by the landlord for impleading the other partners and remitted the matter to the Appellate Authority for fresh disposal. This decision is not useful to support the case of the 1st respondent as the 1st respondent alone entered into the lease agreement in his individual capacity as lessee and not as a partner of the partnership firm. When the lessee is only an individual and not a partnership firm, there is no question of adding any partnership firm or partners as parties to the eviction petition. The landlords are not at all concerned with any partnership agreement made by the lessee subsequently and insofar as the landlords are concerned, the lessee is the person who has signed the lease agreement and to whom the premises was let out. Yet another fact which comes to light in the case in hand is that the other partner is only the wife of the 1st respondent and in such circumstances, she knows the entire facts of the case and she cannot come with a defence which is different from the defence of her husband as the 1st respondent in the eviction petition.
16. The learned Counsel for the 1st respondent further contended that in a cheque bouncing case filed by the Revision Petitioners, under Section 138 of the Negotiable Instruments Act against the 1st respondent, the partnership as well as the partners were shown as parties and in such circumstances in the rent control proceedings also, the firm and the partner should have been added as parties.
17. I am unable to accept this contention of the learned Counsel for the 1st respondent. Insofar as the rent control proceedings are concerned, it is only between the landlords and the tenant, the 1st respondent herein, as they are alone signatories to the lease agreements in their individual capacity. In a case filed under Section 138 of the Negotiable Instruments Act, parties are to be added in the complaint having regard to the signatories in the instrument that too, after finding out whether they signed the instrument in their individual capacity or not. Therefore it can never be said that in the rent control proceedings also, the firm and all it's partners should be added as parties as they were already shown as parties in the cheque bouncing case. The rent control Appellate Authority seems to have accepted this contention raised by the 1st respondent herein and to that extent those findings are vitiated and are liable to be set aside.
18. In so far as the sub-letting is concerned, the Appellate Authority after going through Ex.R9 which is a franchisee agreement dated 24.4.2000 entered into between respondents 1 and 2 herein, has held that the sub-letting was not proved by the Revision Petitioners.
19. I have gone through the copy of the franchisee agreement dated 24.4.2000. It is stated in the agreement that the partnership firm 'Noble Enterprises' agreed to allow the 2nd respondent Company to use the entire premises for displaying, stocking and selling NIKE branded products by the 2nd respondent under their management and control and an office room in the 1st floor will be retained by the 1st respondent. It was further agreed that the 2nd respondent was allowed to utilise the entire premises and all its internal walls for display purpose etc. A separate electric meter was agreed to be provided for the exclusive use of the 2nd respondent.
20. Even though, it was specifically mentioned in the agreement that the 2nd respondent will not be a sub-tenant, I am of the opinion that this agreement dated 24.4.2000 is only a cloak to suppress the fact that the property was sub-let to the 2nd respondent. Even otherwise, a tenant is not supposed to enter into a franchisee agreement with another person, allowing the other person to use and utilise the entire premises for a commission as the same will amount to putting the other person in possession of the leased property giving full power of control and management over the same (leased property). Therefore as rightly pointed out by the learned Counsel for the Revision Petitioners Ex.R9 is only a camouflage to suppress the fact of sub-letting the property and the appellate Authority got carried away by the wordings of the agreement without making effort to consider the underlying intention behind the agreement.
21. Further the 2nd respondent has not chosen to contest the RCOP even though the 2nd respondent was served in RCOP No. 926/2000. Nor any one appeared before the Rent Controller to give evidence to prove that they are not sub-tenants. The 2nd respondent has not chosen to file any Appeal against the order of eviction passed by the Rent Controller. In fact, the 1st respondent herein alone filed RCA No. 366/2002 and the Appeal was dismissed against the 2nd respondent herein who was arrayed as 3rd respondent in RCA No. 366/2002. Even before this Court the 2nd respondent did not choose to appear to contest the eviction petition. Taking into consideration the entire aforesaid facts and circumstances, I am of the view that the sub-letting of the petition property by the 1st respondent to the 2nd respondent is proved as rightly observed by the Rent Controller.
22. In so far as the commission of act of waste by the 1st respondent is concerned, it was accepted by the 1st respondent herein as R.W.1 before the rent controller that he made alteration of the structure, but the same was done with the oral consent of the revision Petitioners. The 1st respondent herein has not produced any evidence in support of his contention. On the other hand, the 1st revision Petitioner as P.W.1 has deposed clearly that the walls were demolished and the bath room in the 1st floor and the parapet wall was also removed to put a stair-case and the same was not seriously denied by the 1st respondent herein. These acts committed by the 1st respondent are definitely likely to impair material value of the building and as rightly observed by the Rent controller the respondents herein are liable to be evicted under Section 10(2)(iii) of the Act also. Whereas the appellate authority did not accept the fact that the 1st respondent herein has committed act of waste on the ground that if such act of waste had been committed, the Revision Petitioners would have certainly issued a notice raising objections for such of an act of waste. Having not done so, it is deemed that the alterations made by the 1st respondent is only with the consent of the Revision Petitioners.
23. I am unable to accept the reasoning given by the appellate authority to come to the above conclusion as the same is on the basis of assumption and not on the basis of evidence let in before him.
24. The Revision Petitioners sought for eviction under Section 10(2)(ii)(b) of the Act also by contending that the 1st respondent has used the building for the purpose other than that for which it was leased out and the Rent controller passed an order of eviction on this ground also. For the landlord to succeed under this provision, he must first prove that the lease deed specified the nature of the business and then prove that the tenant is doing some other business. The onus is heavily on the landlord to prove the different use to get an order of eviction. In the case on hand, the Revision Petitioners did not file the lease deed. On the other hand the 1st respondent produced the lease deeds marked as Exs.R1 and R2 before the Rent controller. It was specifically mentioned in the lease deed that the lease is to run a sports and allied goods shop. The Revision Petitioners were not able to establish before the authorities below the different use of the petition premises by the respondents herein by letting in any acceptable evidence. The Revision Petitioners failed to discharge the onus which is heavily rested on their shoulders. Therefore the Appellate Authority is correct in holding that the landlords failed to establish the different use of the building by the respondents herein and the Revision Petitioners could not succeed in the eviction proceedings on this ground.
25. In the result, the respondents are liable to be evicted from the petition premises under Section 10(2)(i) for wilful default, under Section 10(2)(ii)(a) for sub-letting, under Section 10(2)(iii) for committing act of waste and under Section 10(3)(a)(iii) for bona fide requirement of the building. Insofar as the eviction petition under Section 10(2)(ii)(b) of the Act, for using the premises for different use is concerned, the same is not established and therefore rejected.
26. The Civil Revision Petition is allowed in the above terms. No costs. C.M.P. Nos. 16448 and 19406 of 2003 are closed.