Wren Bennett and Co. India Ltd. Vs. Dr. C.P. Gupta and ors. - Court Judgment

Excerpt:
- t.n. district police act, 1859 [act no. 24/1859]. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); [a.p. shah,c.j., f.m. ibrajhim kalifulla & v. ramasubramanian, jj] rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the criminal city police act and the proviso to article 309 of the constitution., the rule is not assailed on the ground of lack of competence. it is challenged only on the ground that it is violative of articles 14 and 16 of the constitution. but it is well settled that if a rule passes the twin tests of (i) being founded on an intelligible differentia, and (ii) such differentia having a nexus with the object sought to be achieved, it cannot be said to be violative of articles 14 and 16 of the constitution. the impugned rule creates a classification of persons, who were not involved in criminal cases and persons, who were involved in criminal cases. the object of creating such a classification is to ensure that only those persons, whose character and antecedents were beyond and shadow of doubt alone, are permitted entry into the police service of the state. the rule is only a reflection of the intention of the government to maintain purity of administration. the rule merely provides a check post or a filter point, to ensure that only those, who had a clean record of personal life, are admitted into the system. that the existing system, has already come under heavy dose of criticism, cannot be swept under the carpet. therefore, as an employer, the government is entitled to prescribe, especially in a disciplined force like the police force, such a restriction at the entry level. there cannot be a dispute about the proposition that an employer has the right to prescribe any qualifications for appointment to a post. if that be so, an employer has a concomitant right even to prescribe disqualifications when it comes appointment to a post. persons who were never involved in criminal cases, need not be treated as equals to or on par with persons who were involved in criminal cases merely because they are acquitted later, especially in the matter of selection to the police service of the state. the classification made between them, is not only reason able but also has a nexus with the object sought to be achieved. the employer does have the right to choose a person untainted with any allegations. the attempt made to assail the impugned rules on the ground of violation of articles 14 and 16 of the constitution is fragile. the impugned rules themselves appear to be a product of the application of the right to equality. a person, who was never involved in any criminal case, cannot be equated to a person, who was involved in a criminal case, merely because he is acquitted later, at least insofar as matters of public employment are concerned. therefore, the challenge to the impugned rule on the ground of infringement of articles. 14 and 16 of the constitution must fail. -- section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explantion (1); appointment - state police service - disqualification of a person acquitted on benefit of doubt or discharged in a criminal case - validity? held, by virtue of explanation 1 to clause (iv) of rule 14(b) of the t.n. special police subordinate service rules, a person acquitted on benefit of doubt or discharged in a criminal case, can still be considered as disqualified for selection to the police service of the state and that the same cannot be termed as disqualified for selection to the police service of the state and that the same cannot be termed as illegal or unjustified. the reason as to why cr.p.c. does not make a distinction between an acquittal on benefit of doubt and an honourable acquittal, is to ensure that no person shall be tried for a second time for the same offence for which he is tried and convicted or acquitted once. what is provided under section 300(1) of cr.p.c. is only a reassurance of the constitutional right guaranteed under article 20(2). the principle behind this prescription under section 300 of cr.p.c. is to avoid double jeopardy to a person. if the code recognizes such a distinction, it may make inroads into this concept of double jeopardy. but the concept of double jeopardy, to some extent, is allergic to service law. in many cases the supreme court has made it clear - (i) that the imposition of a punishment and the denial of promotion did not amount to double jeopardy, and (ii) that the conviction by a criminal court and the disciplinary proceedings initiated either on the basis of conduct which let to the conviction or on pure questions of misconduct, did not amount to double jeopardy. since the concept of acquittal is an acquittal, is an off shoot of the principle of double jeopardy underlying section 300(1) of the code, it cannot be imported into service law, where the principle of double jeopardy itself is looked down upon. therefore, the explanation 1 to rule 14(b) of the impugned rules, treating a person acquitted on benefit of doubt, as a person involved in a criminal case, is only in tune with well settled principles applicable to service jurisprudence. a person discharged does not even have protection under section 300 of cr.p.c. and hence such a person cannot assail the explanation 1 to the impugned rule 14(b). -- section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explantion (1); - appointment to state police service - failure of a person to disclose in the application form, either his involvement in a criminal case or pendency of a criminal case against him - effect? - held, the failure of a person to disclose his involvement in a criminal case, at the earliest point of time, when the application form is filled up, is fatal. his subsequent disclosure, whether before acquittal or after acquittal, will not cure the defect. in any case, the subsequent disclosure may not have any effect upon his selection, since his case will then fall under any one of the two explanations under clause (iv) of rule 14(b) and make him ineligible for the current selection or for all future selection depending on whether the acquittal is honourable or otherwise. -- t.n. district police act, 1859. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the criminal city police act and the proviso to article 309 of the constitution., the rule is not assailed on the ground of lack of competence. it is challenged only on the ground that it is violative of articles 14 and 16 of the constitution. but it is well settled that if a rule passes the twin tests of (i) being founded on an intelligible differentia, and (ii) such differentia having a nexus with the object sought to be achieved, it cannot be said to be violative of articles 14 and 16 of the constitution. the impugned rule creates a classification of persons, who were not involved in criminal cases and persons, who were involved in criminal cases. the object of creating such a classification is to ensure that only those persons, whose character and antecedents were beyond and shadow of doubt alone, are permitted entry into the police service of the state. the rule is only a reflection of the intention of the government to maintain purity of administration. the rule merely provides a check post or a filter point, to ensure that only those, who had a clean record of personal life, are admitted into the system. that the existing system, has already come under heavy dose of criticism, cannot be swept under the carpet. therefore, as an employer, the government is entitled to prescribe, especially in a disciplined force like the police force, such a restriction at the entry level. there cannot be a dispute about the proposition that an employer has the right to prescribe any qualifications for appointment to a post. if that be so, an employer has a concomitant right even to prescribe disqualifications when it comes appointment to a post. persons who were never involved in criminal cases, need not be treated as equals to or on par with persons who were involved in criminal cases merely because they are acquitted later, especially in the matter of selection to the police service of the state. the classification made between them, is not only reason able but also has a nexus with the object sought to be achieved. the employer does have the right to choose a person untainted with any allegations. the attempt made to assail the impugned rules on the ground of violation of articles 14 and 16 of the constitution is fragile. the impugned rules themselves appear to be a product of the application of the right to equality. a person, who was never involved in any criminal case, cannot be equated to a person, who was involved in a criminal case, merely because he is acquitted later, at least insofar as matters of public employment are concerned. therefore, the challenge to the impugned rule on the ground of infringement of articles. 14 and 16 of the constitution must fail - section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explantion (1); appointment - state police service - disqualification of a person acquitted on benefit of doubt or discharged in a criminal case - validity? held, by virtue of explanation 1 to clause (iv) of rule 14(b) of the t.n. special police subordinate service rules, a person acquitted on benefit of doubt or discharged in a criminal case, can still be considered as disqualified for selection to the police service of the state and that the same cannot be termed as disqualified for selection to the police service of the state and that the same cannot be termed as illegal or unjustified. the reason as to why cr.p.c. does not make a distinction between an acquittal on benefit of doubt and an honourable acquittal, is to ensure that no person shall be tried for a second time for the same offence for which he is tried and convicted or acquitted once. what is provided under section 300(1) of cr.p.c. is only a reassurance of the constitutional right guaranteed under article 20(2). the principle behind this prescription under section 300 of cr.p.c. is to avoid double jeopardy to a person. if the code recognizes such a distinction, it may make inroads into this concept of double jeopardy. but the concept of double jeopardy, to some extent, is allergic to service law. in many cases the supreme court has made it clear - (i) that the imposition of a punishment and the denial of promotion did not amount to double jeopardy, and (ii) that the conviction by a criminal court and the disciplinary proceedings initiated either on the basis of conduct which let to the conviction or on pure questions of misconduct, did not amount to double jeopardy. since the concept of acquittal is an acquittal, is an off shoot of the principle of double jeopardy underlying section 300(1) of the code, it cannot be imported into service law, where the principle of double jeopardy itself is looked down upon. therefore, the explanation 1 to rule 14(b) of the impugned rules, treating a person acquitted on benefit of doubt, as a person involved in a criminal case, is only in tune with well settled principles applicable to service jurisprudence. a person discharged does not even have protection under section 300 of cr.p.c. and hence such a person cannot assail the explanation 1 to the impugned rule 14(b). - section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explantion (1); - appointment to state police service - failure of a person to disclose in the application form, either his involvement in a criminal case or pendency of a criminal case against him - effect? - held, the failure of a person to disclose his involvement in a criminal case, at the earliest point of time, when the application form is filled up, is fatal. his subsequent disclosure, whether before acquittal or after acquittal, will not cure the defect. in any case, the subsequent disclosure may not have any effect upon his selection, since his case will then fall under any one of the two explanations under clause (iv) of rule 14(b) and make him ineligible for the current selection or for all future selection depending on whether the acquittal is honourable or otherwise.ordersomasundaram, j.1. the respondent in r.c.o.p. no. 1245 of 1982 on the file of the rent controller (xi judge, court of small causes), madras, is the petitioner in these c.r.ps. the first petitioner and the legal representative of the second petitioner in the said r.c.o.p. are the respondents in these c.r.ps. for the sake of convenience, the parties are referred to in this order as per their nomenclature in r.c.o.p. no. 1245 of 1982. 2. the petitioners filed r.co.p.no.1245 of 1982 against the respondents under section 4 of the tamil nadu buildings (lease and rent control) act 18 of 1960 as amended by (act 23 of 1973), (hereinafter called the act) for fixation of fair rent for the petition mentioned building. the case of the petitioners is that they are the owners of the premises bearing d.no.2, general patters road, madras 2 and the respondent is the tenant on a monthly rent of rs. 631. their further case is that taking into consideration the cost of construction of the petition mentioned building, the age of the building, the amenities provided for and the land value in the locality etc. the fair rent for the petition mentioned building has to be fixed at rs. 19,585 per month. the respondent filed a counter admitting that the respondent is a tenant of the petition mentioned building and is carrying on business there. however, the respondent contended that the building is 50 years old, that the roofing is only mangalore tiled roofing, that teak-wood is not used and that the wood used in the building in joists, rafters, doors and windows are only country wood. the respondent further contended that the present monthly rent of rs. 631 is the fair rent and reasonable rent for the petition mentioned building.3. before the rent controller, p.w.1 was examined on behalf of the petitioners, r. w. 1 was examined on behalf of the respondent and the commissioner appointed by the court was examined as c.w.1. the rent controller, on a consideration of the entire evidence on record both oral and documentary fixed the fair rent for the petition mentioned building at rs. 12,128 per month and ordered that the petitioners are entitled to fair rent fixed at rs. 12,128 per month from the date of petition. aggrieved by the order of the rent controller fixing the fair rent at rs. 12,128, the respondent filed an appeal r.c.ano.1617 of 1983 and the petitioners filed r.c.a.no.252 of 1984 before the appellate authority (4th judge, court of small causes, madras). the appellate authority by a common judgment confirmed the order of the rent controller and dismissed both the appeals. as against the common judgment of the appellate authority in r.c.a. no. 1617 of 1983 and r.c.a. no. 252 of 1984, the respondent has filed the present c.r.ps.4. mr. rangarajan, the learned senior counsel appearing for the respondent, in the first place contended that the petition for fixation of fair rent was filed by the petitioner which is an unregistered partnership firm m/s. gupta & co., and such a petition for fixation of fair rent filed by the unregistered partnership firm is not maintainable in view of section 69(2) of the partnership act. the learned counsel further contended that whether the petition for fixation of lair rent is filed by all partners collectively or it is filed in the name of the firm by one or more partners, the following two conditions prescribed by section 69(2) of the partnership act must be fulfilled;(1) the firm must be registered and(2) that the persons suing must have been shown in the register of firm as partners of the firm;the above conditions prescribed under section 69(2) of the partnership act are not satisfied in the present case, and therefore, the petition for fixation of fair rent filed under section 4 of the act by the partners of an unregistered firm is not maintainable. in support of his contention, the learned counsel relied on the decision reported in swyaprakasam alias chidambaranathan v. r vijayarangdm : (1970)1mlj243 balasore textile distributors association v. indian union : air1960ori119 ram adhar v. rama kirat tiwari : air1981all405 and wardman finance corporation v. ghulam ahmad lone a.i.r. 1982 (j.& k).142 i am unable to accept the above contention of the learned counsel for the respondent for the following two reasons: (a) this plea that the fixation of rent petition filed by the partners of the unregistered firm is not maintainable in view of section 69(2) of the partnership act was not raised in the counter filed by the respondent in r.c.o.p.no.1245 of 1982. admittedly, such a contention was raised for the first time only before the appellate authority. the maintainability of the petition for fixation of rent is a plea that will have to be taken by the respondent at the earliest stage in the r.c.o.p. itself and when such a plea has not been taken in the counter filed in the r.c.o.p. itself, it will not be open to the respondent to raise the plea either in the appeal filed before the appellate authority or in the revision before this court. in jalal mohammed ibrahim (died) v. kokka mohammed ghouse 84 l.w. 654, a division bench of this court has held as follows :these authorities clearly establish that the evidence of non-registration of the firm is a plea that will have to be raised in the suit itself, and if it had not been raised, it could not be permitted to be raised for the first time in the second appeal. such a plea could not be permitted to be raised in a separate suit is, in our opinion, a fortiorari case. in this connection we may also refer to the decision of this court in govardandas v. abdul rahiman wherein it was held: 'there is distinct provision in the limitation act that a court is bound to dismiss a suit on the ground of limitation, if it finds the suit to to be barred, whether a plea of this kind had been raised on behalf of the defendants or not. no such provision however exists, in the partnership act and therefore the court is not bound to dismiss the suit on the ground of nonregistration of the firm suo mom, if no plea had been raised by any of the defendants to the suit.learned counsel for the appellant drew our attention to order 7, rule 11(d), c.p.c., which slates that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law and contended that section 69 of the partnership act being a provision barring a suit by an unregistered firm, the court could dismiss a suit suomotu and that therefore the decision in govardandas v. abdul rahiman, requires reconsideration. but, we consider that it is not necessary to go into the aspect, because we are of the view that the maintainability of a suit is a plea that will have to be taken by a defendant in the suit, and, if such a plea had not been taken, it will not be open to him to raise the plea on any ground in a separate suit.' in k.a. munavar hussain sahip and anr. v. e.r. narayanan and ors. : air1984mad47 , another division bench of this court following the principles laid down in jalal mohammed ibrahim (died) v. kokka mohammed ghouse sahib 84 l. w. 654 held that the plea based on section 69(2) of the partnership act not raised in the written statement, cannot be allowed to be raised at a later stage. therefore, as rightly pointed out by the appellate authority without pleadings as to the maintainability of the petition for fixation of fair rent in view of section 69(2) of the partnership act, the contention of the respondent as to the maintainability of the petition for fixation of fair rent at a later stage before the appellate authority and before this court in revision is not sustainable, (b) the facts of the present case go to show that the petition for fixation of fair rent is not filed in the firm name, but it is filed by the individual partners dr. gupta and mrs. kasthuri gupta describing themselves as partners of m/s. gupta & co. it is admitted before me that the said firm is not a registered firm. a firm is merely a compendious name for the partners who constituted it. as pointed out by this court in m/s. t.n.k. govinda raju chetty by t.n.v. nanjappa chetty v. p. urajlal dulabdass & co. and anr. : (1967)2mlj465 the firm not being a legal entity, in substance, the partners of the firm will be the landlords. this court further observed in the above decision that when a firm purchases property, the purchase is really by its partners and it follows therefore, that when a firm lets out a residential building belonging to it, in effect, its partners become the landlords. again, the act is a self-contained code in 1ts field. section 40 of the act deals with the fixation of fair rent and section 4 says that any application for fixation of fair rent can be filed before the rent controller either by the landlord or by the tenant. the landlord is defined under section 2(6) of the act as follows :landlord' includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant.thus, it will be seen that the definition of landlord given under section 2(6) of the act is inclusive definition. the inclusive definition in section 2(6) of the act adds to the normal concept of landlord, certain other categories of persons such as the person who is receiving or is entitled to receive the rent of a building whether on his own account or on behalf of another or on behalf of himself and others as an agent etc. a person who is actually receiving or who is entitled to receive the rent of a building will be a landlord within the meaning of section 2(6) of the act and such a person can maintain a petition for fixation of fair rent against the tenant. in the present case, the petition for fixation of fair rent is not filed in the firm name but in the name of individual partners. as already pointed out, the firm is merely a compendious name for partners who constituted it and when the firm purchased the petition-mentioned property, the purchase is really by the partners and after the purchase of the petition-mentioned property, the partners become the landlords within the meaning of section 2(6) of the act as they are entitled to receive the rent for the petition-mentioned property as an agent of the firm from the tenant. it is needless to point out that every partner of a firm is an agent of the firm and as an agent of the firm, the partners are entitled to receive the rent for the petition-mentioned property from the tenant. in these circumstances, in view of the inclusive definition of landlord contained in section 2(6) of the act and inasmuch as the petitioners as partners of the unregistered firm are entitled to receive the rent due for the petition-mentioned property and actually received the same, there is no difficulty in holding that the petitioners are landlords within the meaning of section 2(6) and the petition for fixation of fair rent filed by them is maintainable. there is no merit in the contention of the learned counsel for the respondent that the petition for fixation of fair rent filed by the partners of the unregistered firm is not maintainable in view of section 69(2) of the partnership act. the principles laid down in the decisions relied on by the learned counsel for the respondent have no application to the facts of the present case.5. the second contention of the learned counsel for the respondent is that the petition mentioned premises consist of both free hold land measuring 5,627 sq.ft. and lease hold lands measuring 5,141 sq.ft.; the petitioners cannot claim the benefits of tamil nadu city tenants protection act in respect of the lease hold land and therefore, the petitioners cannot ask for anything to be taken into account in respect of the lease hold land, for purpose of fixation of fair rent for the petition mentioned property. the above contention of the learned counsel for the respondent cannot be countenanced for the following reasons:1. the above contention was not raised by the respondent either before the rent controller or before the appellate authority or even in the grounds of c.r.p., and it is raised for the first time only during the arguments before me the respondent cannot be permitted to raise such a plea for the first time before this court in the c.r.p.(b) the respondent in para 3 of the counter affidavit filed in r.c.o.p.no.1245 of 1982 admitted that it is a tenant of the petition mentioned building and the monthly rent payable is rs. 631.as already pointed out, the inclusive definition of landlord contained in section 2(6) of the act includes a person who is actually receiving rent or who is entitled to receive rent in respect of the building. in view of the above definition of landlord, contained in section 2(6) of the act and inasmuch as the petitioners are entitled to receive the rent and are actually receiving the rent due for the petition mentioned building from the respondent, it cannot be contended that the petitioners are not the landlords.6. a careful reading of section 4 of the act shows that the fair rent is fixed for the building and it is payable by the tenant for the building occupied by him. in other words, what is fixed under section 4 of the act is the fair rent for the building let out by a landlord to a tenant. vide : rovel & co. v. ramachandran (1977) 1 s.c.c. 424. it is not the case of the respondent that it is not liable to pay rent for the petition-mentioned buildings. admittedly, the respondent is a tenant in respect of the petition-mentioned buildings and it is liable to pay rent for the petition-mentioned building. when it is admitted that the respondent is liable to pay rent to the petitioners for the petition-mentioned buildings and when the respondent is actually paying the monthly rent to the petitioners, the respondent is equally liable to pay the fair rent in respect of the petition-mentioned building to the petitioners. further in any by the sale deed ex.p-8, the petitioners have purchased the right, title and interest of their vendors namely dinrose estate in the petition-mentioned premises. in these circumstances, there is no merit in the contention of the learned counsel for the respondent that the petitioners cannot ask for fixation of fair rent for the entire petition mentioned premises including the leasehold land.7. the next question we have to examine is whether the fair rent fixed by the rent controller and the appellate authority for the petition mentioned buildings at rs. 12,128 per month is correct.8. admittedly, the tenancy is for non-residential purpose and according to section 4(3) of the act, the fair rent for non-residential buildings shall be 12% of the gross return p.a. on the total cost of such building. section 4(4) says that the total cost referred in section 4(3) of the act shall consist of the market value of the site in which the building is constructed, the cost of construction of the building and the cost of provision of any one or more of the amenities specified in schedule-1 of the act. therefore, in the first instance, we have to determine the cost of construction of the building. to find out the cost of construction of the building in question, we have to find out the class and type of the building, the age of the building, plinth area, market value of the site on which the building is constructed, the amenities etc. p.w.1 in his evidence speaks about the nature of the petition mentioned building. the evidence of p.w.1 and his report exs.p-6 would go to show that part of the building is constructed with brick and lime mortar and the remaining portion with brick and cement mortar. p.w.1 has further stated in his evidence that the petition mentioned building comes under the category of type-i class a construction, except for the country tiled roofing portion which comes under the category of type-ii. c.w.1 in his evidence has stated that the building is built with brick work partly in lime and partly in mud and it is plastered with lime mortar. c.w.1 has further stated in his evidence that the petition mentioned building comes under the category of type-1 b building. the sale deed in favour of the petitioners is marked as. ex.p-8 in this case, and it is seen from annexure i.a attached to ex.p-8 that the petition mentioned building is a building with brick masonry walls and that country wood has been used. inasmuch as the sale deed in favour of the petitioners ex.p-8 is dated 22.1.1979, the particular furnished in annexure i.a to ex.p-8 have to be taken as correct. on the basis of the particulars given in annexure i a to ex.p-8, it has to be held that the building has been built with brick and lime mortar and that country wood had been used. in these circumstances, the rent controller and the appellate authority rightly held that the petition mentioned building has to be classified as class-a-i according to p.w.d. specification. with regard to the age of the building, p.w.1 has deposed that the country tiled portion of the petition mentioned building is 60 years old and the remaining portion of the building is 40 years old. on the other hand, c.w.i in his evidence has stated that the entire building is 80 years old. in the annexure i-a attached to ex.p-8, the age of the building is given as over 60 years. placing reliance on ex.p-8, the rent controller and the appellate authority have rightly fixed the age of the building as 60 years. coming to the plinth area of the building p.w.1 in his evidence has stated that the total plinth area of the building would be 8,026 sq.ft. on the other hand, c.w. 1 in his evidence has stated that the total plinth area is 7,366 sq.ft. in annexure i-a of ex.p-8, the total plinth area is given as 7,355 sq.ft. on the basis of the evidence of c.w.1 and the recitals in ex.p-8 the rent controller and the appellate authority rightly fixed the plinth area of the petition mentioned building as 7,366 sq.ft. then we have to find out the market value of the site on which the petition mentioned building is constructed. the evidence on record discloses that the lease hold land measuring 4,874 sq.ft. is in the front portion and the free hold land measuring 4,199 sq.ft. is in the rear portion of the petition mentioned premises. p.w.1 on the basis of ex.p-2 and p-4 has fixed the market value of the land for the lease hold land at rs. 2 lakhs per ground and the market value of the free hold land at rs. 1,50,000 per ground. c.w.1 in his report has fixed the land value of the lease hold land at rs. 1,50,000 per ground and the market value of free hold land at rs. 2,25,000 per ground. the evidence in this case discloses that the petition mentioned building is situated next to the wellington theatre in general patters road very near to the mount road, in an important place and it has all the locational amenities. taking into consideration the evidence on record, the rent controller and the appellate authority correctly fixed the market value of the hold lease land at rs. 2 lakhs per ground and for the free hold land at rs. 3,50,000 per ground.9. coming to the amenities, p.w.1 in his evidence has stated that the petition mentioned building has all the basic amenities, whereas r.w.1 in his evidence has stated that the petition mentioned building has only the basic amenity of electricity. admittedly, the petition mentioned building has the amenity of excess open land after deducting the 50% of the open land after deducting the 50% of the open land appurtenant to the petition mentioned building, and such excess open land has to be treated as amenity by virtue of proviso to section 4(4) of the act. taking note of the above amenities the rent controller and the appellate authority have correctly allowed the 10% of the cost of construction towards the basic amenities and 5% of the cost of building towards schedule-i amenities. on the basis of the above findings with regard to the cost of construction of the building, the value of the site and the amenities the rent controller in para 11 of the order has given the following calculations for fixing the fair rent for the petition mentioned building at rs. 12,128 per month.'costs of construction of plinthmangalore tiled roof at rs. 29per sq.ft. for 3751 sq.ft. rs. 1,08,779-00costs of construction for mangaloretiled over flat tiles at rs. 21 per sq.ft. rs. 26,677-00for 721 sq.ft. cost of construction forac sheet roof at rs. 34 per sq.ft. for134 sq.ft. rs. 4,556-00________________total cost of construction of the building rs. 1,40,012-00costs of construction for free holdland at rs. 37 per sq.ft. for 853 sq.ft. rs. 31,561-00at rs. 29.per sq.ft. for 1907 sq.ft. rs. 55,303-00________________total costs of construction of the building rs. 2,26,876-00add 10% towards basic amenities rs. 22,688-00________________rs. 2,49,564-00costs of depreciation (p.45284) rs. 1,13,013-00________________depreciated costs rs. 1,36,551-00costs of land for lease-hold land at rs. 2,00,000per ground for 4,874 sq.ft. rs. 4,06,167-00costs of land for free hold land at rs. 3,50,000per ground for 4,199 sq.ft. rs. 6,12,354-00_______________costs of the building rs. 11,55,672-00add 5% towards schedule i amenities rs. 55,754-00________________gross return rs. 12,12,826-00________________12% on the gross return per month 12,12,826 x 12100 x 12rs. 12,128-26orrs. 12,128.the fair rent is rs. 12,128 per month.' the above calculation on the basis of the findings of the rent controller and the appellant authority with regard to the cost of construction of the building, value of the site and the provisions amenities as correct, the calculations given by the rent controller in para 11 of his order and confirmed by the appellate authority forarriving at the fair rent at rs. 12,128 per month are also correct and they do not call for any interference in these c.r.ps. the fair rent is fixed by the rent controller and the appellate authority for the petition mentioned building rs. 12,128 per month on the basis of evidence on record and there is no infirmity in the order of the rent controller and the judgment of the appellate authority. there is no merit in these c.r.ps. and they are liable to be dismissed. accordingly the c.r.ps. are dismissed. no costs.

Judgment:
ORDER

Somasundaram, J.

1. The respondent in R.C.O.P. No. 1245 of 1982 on the file of the Rent Controller (XI Judge, Court of Small Causes), Madras, is the petitioner in these C.R.Ps. The first petitioner and the legal representative of the second petitioner in the said R.C.O.P. are the respondents in these C.R.Ps. For the sake of convenience, the parties are referred to in this order as per their nomenclature in R.C.O.P. No. 1245 of 1982.

2. The petitioners filed R.CO.P.No.1245 of 1982 against the respondents under Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 as amended by (Act 23 of 1973), (hereinafter called the Act) for fixation of fair rent for the petition mentioned building. The case of the petitioners is that they are the owners of the premises bearing D.No.2, General Patters Road, Madras 2 and the respondent is the tenant on a monthly rent of Rs. 631. Their further case is that taking into consideration the cost of construction of the petition mentioned building, the age of the building, the amenities provided for and the land value in the locality etc. the fair rent for the petition mentioned building has to be fixed at Rs. 19,585 per month. The respondent filed a counter admitting that the respondent is a tenant of the petition mentioned building and is carrying on business there. However, the respondent contended that the building is 50 years old, that the roofing is only Mangalore tiled roofing, that teak-wood is not used and that the wood used in the building in joists, rafters, doors and windows are only country wood. The respondent further contended that the present monthly rent of Rs. 631 is the fair rent and reasonable rent for the petition mentioned building.

3. Before the Rent Controller, P.W.1 was examined on behalf of the petitioners, R. W. 1 was examined on behalf of the respondent and the commissioner appointed by the Court was examined as C.W.1. The Rent Controller, on a consideration of the entire evidence on record both oral and documentary fixed the fair rent for the petition mentioned building at Rs. 12,128 per month and ordered that the petitioners are entitled to fair rent fixed at Rs. 12,128 per month from the date of petition. Aggrieved by the order of the Rent Controller fixing the fair rent at Rs. 12,128, the respondent filed an appeal R.C.ANo.1617 of 1983 and the petitioners filed R.C.A.No.252 of 1984 before the Appellate Authority (4th Judge, Court of Small Causes, Madras). The Appellate Authority by a common Judgment confirmed the order of the Rent Controller and dismissed both the appeals. As against the common judgment of the Appellate Authority in R.C.A. No. 1617 of 1983 and R.C.A. No. 252 of 1984, the respondent has filed the present C.R.Ps.

4. Mr. Rangarajan, the learned Senior Counsel appearing for the respondent, in the first place contended that the petition for fixation of fair rent was filed by the petitioner which is an unregistered partnership firm M/s. Gupta & Co., and such a petition for fixation of fair rent filed by the unregistered partnership firm is not maintainable in view of Section 69(2) of the Partnership Act. The learned Counsel further contended that whether the petition for fixation of lair rent is filed by all partners collectively or it is filed in the name of the firm by one or more partners, the following two conditions prescribed by Section 69(2) of the Partnership Act must be fulfilled;

(1) the firm must be registered and

(2) That the persons suing must have been shown in the register of Firm as partners of the firm;

the above conditions prescribed under Section 69(2) of the Partnership Act are not satisfied in the present case, and therefore, the petition for fixation of fair rent filed under Section 4 of the Act by the partners of an unregistered firm is not maintainable. In support of his contention, the learned Counsel relied on the decision reported in Swyaprakasam alias Chidambaranathan v. R Vijayarangdm : (1970)1MLJ243 Balasore Textile Distributors Association v. Indian Union : AIR1960Ori119 Ram Adhar v. Rama Kirat Tiwari : AIR1981All405 and Wardman Finance Corporation v. Ghulam Ahmad Lone A.I.R. 1982 (J.& K).142 I am unable to accept the above contention of the learned Counsel for the respondent for the following two reasons: (a) This plea that the fixation of rent petition filed by the partners of the unregistered firm is not maintainable in view of Section 69(2) of the Partnership Act was not raised in the counter filed by the respondent in R.C.O.P.No.1245 of 1982. Admittedly, such a contention was raised for the first time only before the appellate authority. The maintainability of the petition for fixation of rent is a plea that will have to be taken by the respondent at the earliest stage in the R.C.O.P. itself and when such a plea has not been taken in the counter filed in the R.C.O.P. itself, it will not be open to the respondent to raise the plea either in the appeal filed before the appellate authority or in the revision before this Court. In Jalal Mohammed Ibrahim (died) v. Kokka Mohammed Ghouse 84 L.W. 654, a Division Bench of this Court has held as follows :

These authorities clearly establish that the evidence of non-registration of the firm is a plea that will have to be raised in the suit itself, and if it had not been raised, it could not be permitted to be raised for the first time in the second appeal. Such a plea could not be permitted to be raised in a separate suit is, in our opinion, a fortiorari case. In this connection we may also refer to the decision of this Court in Govardandas v. Abdul Rahiman wherein it was held: 'There is distinct provision in the Limitation Act that a court is bound to dismiss a suit on the ground of limitation, if it finds the suit to to be barred, whether a plea of this kind had been raised on behalf of the defendants or not. No such provision however exists, in the Partnership Act and therefore the court is not bound to dismiss the suit on the ground of nonregistration of the firm suo mom, if no plea had been raised by any of the defendants to the suit.Learned Counsel for the appellant drew our attention to Order 7, Rule 11(d), C.P.C., which slates that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law and contended that Section 69 of the Partnership Act being a provision barring a suit by an unregistered firm, the court could dismiss a suit suomotu and that therefore the decision in Govardandas v. Abdul Rahiman, requires reconsideration. But, we consider that it is not necessary to go into the aspect, because we are of the view that the maintainability of a suit is a plea that will have to be taken by a defendant in the suit, and, if such a plea had not been taken, it will not be open to him to raise the plea on any ground in a separate suit.' In K.A. Munavar Hussain Sahip and Anr. v. E.R. Narayanan and Ors. : AIR1984Mad47 , another division Bench of this Court following the principles laid down in Jalal Mohammed Ibrahim (died) v. Kokka Mohammed Ghouse Sahib 84 L. W. 654 held that the plea based on Section 69(2) of the Partnership Act not raised in the written statement, cannot be allowed to be raised at a later stage. Therefore, as rightly pointed out by the appellate authority without pleadings as to the maintainability of the petition for fixation of fair rent in view of Section 69(2) of the Partnership Act, the contention of the respondent as to the maintainability of the petition for fixation of fair rent at a later stage before the appellate authority and before this Court in revision is not sustainable, (b) The facts of the present case go to show that the petition for fixation of fair rent is not filed in the firm name, but it is filed by the individual partners Dr. Gupta and Mrs. Kasthuri Gupta describing themselves as partners of M/s. Gupta & Co. It is admitted before me that the said firm is not a registered firm. A firm is merely a compendious name for the partners who constituted it. As pointed out by this Court in M/s. T.N.K. Govinda Raju Chetty by T.N.V. Nanjappa Chetty v. P. Urajlal Dulabdass & Co. and Anr. : (1967)2MLJ465 the firm not being a legal entity, in substance, the partners of the firm will be the landlords. This Court further observed in the above decision that when a firm purchases property, the purchase is really by its partners and it follows therefore, that when a firm lets out a residential building belonging to it, in effect, its partners become the landlords. Again, the Act is a self-contained Code in 1ts field. Section 40 of the Act deals with the fixation of fair rent and Section 4 says that any application for fixation of fair rent can be filed before the Rent Controller either by the landlord or by the tenant. The landlord is defined under Section 2(6) of the Act as follows :Landlord' includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant.

Thus, it will be seen that the definition of landlord given under Section 2(6) of the Act is inclusive definition. The inclusive definition in Section 2(6) of the Act adds to the normal concept of landlord, certain other categories of persons such as the person who is receiving or is entitled to receive the rent of a building whether on his own account or on behalf of another or on behalf of himself and others as an agent etc. A person who is actually receiving or who is entitled to receive the rent of a building will be a landlord within the meaning of Section 2(6) of the Act and such a person can maintain a petition for fixation of fair rent against the tenant. In the present case, the petition for fixation of fair rent is not filed in the firm name but in the name of individual partners. As already pointed out, the firm is merely a compendious name for partners who constituted it and when the firm purchased the petition-mentioned property, the purchase is really by the partners and after the purchase of the petition-mentioned property, the partners become the landlords within the meaning of Section 2(6) of the Act as they are entitled to receive the rent for the petition-mentioned property as an agent of the firm from the tenant. It is needless to point out that every partner of a firm is an agent of the firm and as an agent of the firm, the partners are entitled to receive the rent for the petition-mentioned property from the tenant. In these circumstances, in view of the inclusive definition of landlord contained in Section 2(6) of the Act and inasmuch as the petitioners as partners of the unregistered firm are entitled to receive the rent due for the petition-mentioned property and actually received the same, there is no difficulty in holding that the petitioners are landlords within the meaning of Section 2(6) and the petition for fixation of fair rent filed by them is maintainable. There is no merit in the contention of the learned Counsel for the respondent that the petition for fixation of fair rent filed by the partners of the unregistered firm is not maintainable in view of Section 69(2) of the Partnership Act. The principles laid down in the decisions relied on by the learned Counsel for the respondent have no application to the facts of the present case.

5. The second contention of the learned Counsel for the respondent is that the petition mentioned premises consist of both free hold land measuring 5,627 sq.ft. and lease hold lands measuring 5,141 sq.ft.; the petitioners cannot claim the benefits of Tamil Nadu City Tenants Protection Act in respect of the lease hold land and therefore, the petitioners cannot ask for anything to be taken into account in respect of the lease hold land, for purpose of fixation of fair rent for the petition mentioned property. The above contention of the learned Counsel for the respondent cannot be countenanced for the following reasons:

1. The above contention was not raised by the respondent either before the Rent Controller or before the Appellate Authority or even in the grounds of C.R.P., and it is raised for the first time only during the arguments before me the respondent cannot be permitted to raise such a plea for the first time before this Court in the C.R.P.

(B) The respondent in para 3 of the counter affidavit filed in R.C.O.P.No.1245 of 1982 admitted that it is a tenant of the petition mentioned building and the monthly rent payable is Rs. 631.

As already pointed out, the inclusive definition of landlord contained in Section 2(6) of the Act includes a person who is actually receiving rent or who is entitled to receive rent in respect of the building. In view of the above definition of landlord, contained in Section 2(6) of the Act and inasmuch as the petitioners are entitled to receive the rent and are actually receiving the rent due for the petition mentioned building from the respondent, it cannot be contended that the petitioners are not the landlords.

6. A careful reading of Section 4 of the Act shows that the fair rent is fixed for the building and it is payable by the tenant for the building occupied by him. In other words, what is fixed under Section 4 of the Act is the fair rent for the building let out by a landlord to a tenant. Vide : Rovel & Co. v. Ramachandran (1977) 1 S.C.C. 424. It is not the case of the respondent that it is not liable to pay rent for the petition-mentioned buildings. Admittedly, the respondent is a tenant in respect of the petition-mentioned buildings and it is liable to pay rent for the petition-mentioned building. When it is admitted that the respondent is liable to pay rent to the petitioners for the petition-mentioned buildings and when the respondent is actually paying the monthly rent to the petitioners, the respondent is equally liable to pay the fair rent in respect of the petition-mentioned building to the petitioners. Further in any by the sale deed Ex.P-8, the petitioners have purchased the right, title and interest of their vendors namely Dinrose Estate in the petition-mentioned premises. In these circumstances, there is no merit in the contention of the learned Counsel for the respondent that the petitioners cannot ask for fixation of fair rent for the entire petition mentioned premises including the leasehold land.

7. The next question we have to examine is whether the fair rent fixed by the Rent Controller and the Appellate Authority for the petition mentioned buildings at Rs. 12,128 per month is correct.

8. Admittedly, the tenancy is for non-residential purpose and according to Section 4(3) of the Act, the fair rent for non-residential buildings shall be 12% of the gross return p.a. on the total cost of such building. Section 4(4) says that the total cost referred in Section 4(3) of the Act shall consist of the market value of the site in which the building is constructed, the cost of construction of the building and the cost of provision of any one or more of the amenities specified in Schedule-1 of the Act. Therefore, in the first instance, we have to determine the cost of construction of the building. To find out the cost of construction of the building in question, we have to find out the class and type of the building, the age of the building, plinth area, market value of the site on which the building is constructed, the amenities etc. P.W.1 in his evidence speaks about the nature of the petition mentioned building. The evidence of P.W.1 and his report Exs.P-6 would go to show that part of the building is constructed with brick and lime mortar and the remaining portion with brick and cement mortar. P.W.1 has further stated in his evidence that the petition mentioned building comes under the category of type-I Class A construction, except for the country tiled roofing portion which comes under the category of type-II. C.W.1 in his evidence has stated that the building is built with brick work partly in lime and partly in mud and it is plastered with lime mortar. C.W.1 has further stated in his evidence that the petition mentioned building comes under the category of Type-1 B building. The sale deed in favour of the petitioners is marked as. Ex.P-8 in this case, and it is seen from annexure I.A attached to Ex.P-8 that the petition mentioned building is a building with brick masonry walls and that country wood has been used. Inasmuch as the sale deed in favour of the petitioners Ex.P-8 is dated 22.1.1979, the particular furnished in Annexure I.A to Ex.P-8 have to be taken as correct. On the basis of the particulars given in Annexure I A to Ex.P-8, it has to be held that the building has been built with brick and lime mortar and that country wood had been used. In these circumstances, the Rent Controller and the Appellate Authority rightly held that the petition mentioned building has to be classified as class-A-I according to P.W.D. specification. With regard to the age of the building, P.W.1 has deposed that the country tiled portion of the petition mentioned building is 60 years old and the remaining portion of the building is 40 years old. On the other hand, C.W.I in his evidence has stated that the entire building is 80 years old. In the annexure I-A attached to Ex.P-8, the age of the building is given as over 60 years. Placing reliance on Ex.P-8, the Rent Controller and the appellate Authority have rightly fixed the age of the building as 60 years. Coming to the plinth area of the building P.W.1 in his evidence has stated that the total plinth area of the building would be 8,026 sq.ft. On the other hand, C.W. 1 in his evidence has stated that the total plinth area is 7,366 sq.ft. In annexure I-A of Ex.P-8, the total plinth area is given as 7,355 sq.ft. On the basis of the evidence of C.W.1 and the recitals in Ex.P-8 the Rent Controller and the Appellate Authority rightly fixed the plinth area of the petition mentioned building as 7,366 sq.ft. Then we have to find out the market value of the site on which the petition mentioned building is constructed. The evidence on record discloses that the lease hold land measuring 4,874 sq.ft. is in the front portion and the free hold land measuring 4,199 sq.ft. is in the rear portion of the petition mentioned premises. P.W.1 on the basis of Ex.P-2 and P-4 has fixed the market value of the land for the lease hold land at Rs. 2 lakhs per ground and the market value of the free hold land at Rs. 1,50,000 per ground. C.W.1 in his report has fixed the land value of the lease hold land at Rs. 1,50,000 per ground and the market value of free hold land at Rs. 2,25,000 per ground. The evidence in this case discloses that the petition mentioned building is situated next to the Wellington theatre in General Patters Road very near to the Mount Road, in an important place and it has all the locational amenities. Taking into consideration the evidence on record, the Rent Controller and the Appellate Authority correctly fixed the market value of the hold lease land at Rs. 2 lakhs per ground and for the free hold land at Rs. 3,50,000 per ground.

9. Coming to the amenities, P.W.1 in his evidence has stated that the petition mentioned building has all the basic amenities, Whereas R.W.1 in his evidence has stated that the petition mentioned building has only the basic amenity of electricity. Admittedly, the petition mentioned building has the amenity of excess open land after deducting the 50% of the open land after deducting the 50% of the open land appurtenant to the petition mentioned building, and such excess open land has to be treated as amenity by virtue of proviso to Section 4(4) of the Act. Taking note of the above amenities the Rent Controller and the Appellate Authority have correctly allowed the 10% of the cost of construction towards the basic amenities and 5% of the cost of building towards Schedule-I amenities. On the basis of the above findings with regard to the cost of construction of the building, the value of the site and the amenities the Rent Controller in para 11 of the order has given the following calculations for fixing the fair rent for the petition mentioned building at Rs. 12,128 per month.'

Costs of construction of plinthMangalore tiled roof at Rs. 29per sq.ft. for 3751 sq.ft. Rs. 1,08,779-00Costs of Construction for Mangaloretiled over flat tiles at Rs. 21 per sq.ft. Rs. 26,677-00for 721 sq.ft. Cost of construction forAC sheet roof at Rs. 34 per sq.ft. for134 sq.ft. Rs. 4,556-00________________Total cost of construction of the building Rs. 1,40,012-00Costs of construction for free holdland at Rs. 37 per sq.ft. for 853 sq.ft. Rs. 31,561-00at Rs. 29.per sq.ft. for 1907 sq.ft. Rs. 55,303-00________________Total costs of construction of the Building Rs. 2,26,876-00Add 10% towards basic amenities Rs. 22,688-00________________Rs. 2,49,564-00Costs of depreciation (P.45284) Rs. 1,13,013-00________________Depreciated costs Rs. 1,36,551-00Costs of land for lease-hold land at Rs. 2,00,000per ground for 4,874 sq.ft. Rs. 4,06,167-00Costs of land for free hold land at Rs. 3,50,000per ground for 4,199 sq.ft. Rs. 6,12,354-00_______________Costs of the building Rs. 11,55,672-00Add 5% towards Schedule I amenities Rs. 55,754-00________________GROSS RETURN Rs. 12,12,826-00________________12% on the gross return per month 12,12,826 x 12100 x 12Rs. 12,128-26orRs. 12,128.

The fair rent is Rs. 12,128 per month.' The above calculation on the basis of the findings of the Rent Controller and the Appellant Authority with regard to the cost of construction of the building, value of the site and the provisions amenities as correct, the calculations given by the Rent Controller in para 11 of his order and confirmed by the Appellate Authority forarriving at the fair rent at Rs. 12,128 per month are also correct and they do not call for any interference in these C.R.Ps. The fair rent is fixed by the Rent Controller and the Appellate Authority for the petition mentioned building Rs. 12,128 per month on the basis of evidence on record and there is no infirmity in the order of the Rent Controller and the judgment of the Appellate Authority. There is no merit in these C.R.Ps. and they are liable to be dismissed. Accordingly the C.R.Ps. are dismissed. No costs.