T.L. Viswanatha Iyer, J.@mdashIn this petition, which is treated as one under Article 227 of the Constitution of India, the petitioners challenge the concurrent orders for their eviction from a building occupied by them. The orders impugned are Exts. P1, P2 and P3 passed by the Rent Control Court, the Appellate Authority and the District Court, respectively. The proceedings which led to these orders were initiated u/s 11(2) and (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (the Act) on the grounds of arrears of rent, and bona fide need for own occupation of the first respondent landlord. The question of eviction on the ground of arrears of rent does not survive for consideration at present. The petition was filed by the first respondent, a registered firm of merchants doing business in Alleppey. The firm required the building for their occupation, as they desired to shift their head office from Alleppey to Cochin. The building could also be used for the residence of the partners. Space was besides available in the appurtenant land for the putting up necessary additional structures for the purpose of the business.
2. The petitioners-tenants raised the contention that the landlord firm was not a registered one and that the person Manilal T. Sheth, who had signed and verified the petition was not authorised to do so. The petitioners claimed further that the lease was of land, with the building thereon, and not of a building, with appurtenant land, and therefore, they were entitled to benefits under the Kerala Land Reforms Act, 1963. The bona fides of the landlord''s need and claim was also challenged.
3. The question of benefits claimed under the Land Reforms Act, 1963 was required to the Land Tribunal for its finding, as required u/s 125(3) of that Act. The Land Tribunal rejected the petitioners contentions and claims, and held that they were not entitled to any benefits under the said Act, as the lease in question was not of land, but of a building with appurtenant land. After receipt of this finding, the Rent Control Court went into the other questions arising for consideration, and allowed the petition for eviction, upholding landlords'' need as bona fide. The order was affirmed in appeal by the appellate authority by a very detailed judgment. The petitioners-tenants filed revision petition before the revisional court, namely the District Court, Ernakulam u/s 20 of the Act; The limited jurisdiction vested in the revisional court u/s 20 is to call for and examine the records relating to any order passed by the appellate authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order. Four contentions were raised by the petitioners before the revisional court, all of which were found against and the revision petition dismissed. The petitioners challenge the orders of the three authorities on the very same grounds which they had urged before the revisional court.
4. It has been found concurrently that the lease was of a building with appurtenant land. The petitioners'' case was that the building had been leased out to them on a rent of Rs. 62.50 per month and the land on a rent of Rs. 25/-. However, and having regard to the evidence in the case, particularly the description all along in the rent receipts that the entire amount of Rs. 87.50 was being received as "building rent", and also haying regard to the fact that there was a fixation of fair rent earlier, under the Act itself, the three authorities negatived the petitioners'' contention that the lease was of land with a building thereon. This finding is concurrent. The petitioners have, not produced any material to show that the dominant part of the tenement was the land and that it was the land with the building that was leased out. The evidence to the contrary is overwhelming. The building is situate in a very important commercial locality of Cochin. There is therefore no reason to disturb the concurrent findings of the three authorities on this point.
5. The next contention raised, that there was a bona fide denial of title of the first respondent-landlord, and therefore, the Rent Control Court had no jurisdiction to deal with the matter, is also bereft of any substance. Petitioners themselves had been paying rent to the first respondent landlord all along, without any demur. The denial of title has to be bona fide before it could oust the jurisdiction of the Rent Control Court. On the facts appearing in the case, there can be no doubt that far from there being any bona fides in this contention, it is absolutely and positively malafide, having regard to the consistent conduct of the petitioners themselves in having attorned to the first respondent and paying the rent to them ever since they purchased the property. This contention only requires to be stated to be rejected.
6. The bona fide need of the landlord has also been concurrently found by all the three authorities. The landlord was encountering difficulties in carrying on their export business through the Cochin Port and was incurring considerable expenditure for the purpose. They had to bring the goods from Alleppey and store them in the godown of their shipping agent in Willingdon Island, depending on the availability of steamer. Substantial amounts had to be paid to the agent for such warehousing. They desired to shift the headquarters to Cochin as hill produce and other items had to be exported through the Cochin Port. The first respondent has produced sufficient material to show that they were having a good volume of export trade necessitating situation of their office in or about Cochin. The matter has been discussed threadbare by all the three authorities and the bona fides of the first respondent found. It has been pointed out by the landlord that their partners could reside in the building in question and they could also construct other required buildings in the land available. The freed was therefore, one which stood established by the evidence in the case. There is no case for the petitioners that the first respondent has any other building in Cochin in which they could carry on their trade, particularly the export trade. The concurrent finding on this point has therefore to be upheld.
7. The findings on the three points mentioned above are amply supported by the evidence and the material on record. Petitioner''s counsel has not been able to point out any irregularity or illegality in the said findings, justifying interference under Article 227 of the Constitution.
8. The fourth point which was the only one seriously pressed before me, was that the petition by a firm, for eviction under the Act, was not maintainable. It was pointed out that Order XXX of the Code of Civil Procedure, 1908 which enables two or more persons claiming or being liable as partners to sue or be sued in the name of the firm, has not been made applicable to proceedings under the Act. A firm is not a legal person and therefore, in the absence of any enabling provision like Order XXX, a petition can be filed and maintained only in the names of all its partners, and not in its own name.
9. Even at this juncture, I must mention that this contention has not been raised before either the Rent Control Court, or the Appellate Authority. As mentioned earlier, the point raised before them was that the first respondent firm was not a registered one, and that Manilal T. Sheth, who had signed and verified the rent control petition was not authorised to do so. The Contention in its present form was raised for the first time only in the revisional court. But I am not able to find any substance in the plea.
10. An application for eviction filed in the name of a firm is in substance and in reality, one by all the partners, with a defective description of the landlord, liable to be amended or corrected. It is a petition by the partners with a misdescription of themselves, in their collective firm name. It is at the most a petition with a misdescribed name. The matter is in the realms of procedure and any irregularity in the description of the petitioner-landlord cannot vitiate the proceedings or render it void. This is not a case where the misdescription has caused any prejudice to the petitioners-tenants. They knew very well that it was their landlord who was filing the application for eviction. No objection was raised about the maintainability of the petition in the firm name. In these circumstances, the institution of the proceeding in the firm name does not in any manner invalidate it.
11. In
Since, however, a firm is not a legal entity the privilege of suing in the name of a firm is permissible only to those persons who, as partners, are doing business in India. Such privilege is not extended to persons who are doing business as partners outside India. In their case they still have to sue in their individual names. If, however, under some misapprehension, persons doing business as partners outside India do file a plaint in the name of their firm they are misdescribing themselves, as the suit instituted is by them, they being known collectively as a firm. It seems, therefore, that a plaint, filed in a court in India in the name of a firm doing business outside India is not by itself a nullity. It is a plaint by all the partners of the firm with a defective description of themselves for the purposes of the Code of Civil Procedure.
The ratio of this decision was applied in
12. It is true that in all these cases there were applications for amendment of the plaint to correct the names of the parties; but I am of the view that the absence of such amendment does not in any manner invalidate the order of eviction. As stated by me earlier, the petition is in reality and substance one by all the partners No prejudice has been caused by the misdescription of the landlords. The objection on this ground was raised for the first time only before the revisional court. If the point had been raised even in the first instance, the first respondent would have been enabled to amend the cause title or correct the description of the landlords as comprising the various partners. The petitioners cannot therefore be permitted to challenge the order of eviction on such a belated plea, even assuming that there is any substance in it.
13. The revisional court has discussed the matter and come to the conclusion that the petitioners themselves had been treating only the firm as the landlord. After all this, it is not open to them to contend that the institution of the proceeding in the firm name was in any manner invalid.
14. I am also inclined to take the view that the petition in the name of the firm was itself maintainable despite the non-applicability of Order XXX C.P.C. to proceedings under the Act. "Landlord" is defined in section 2(3) of the Act as including a "person" who is receiving or is entitled to receive the rent of the building. There is no definition of "person" in the Act, but the term is defined in section 2(26) of the interpretation and General Clauses Act, 7 of 1125, as including any company or association or body of individuals whether incorporated or not. It is an inclusive definition, which comprehends within it even an unincorporated association or body of individuals. It must therefore, be taken to include even a firm, particularly a registered firm as in this case, as there is no reason to exclude a firm from its purview. If so, a firm can also be a landlord, though in the strict legal sense the firm has no juristic personality and is only a compendious expression to describe the relationship between the partners. Section 11(3) of the Act enables a landlord to apply for an order directing the tenant to put him in possession. If a firm could be a landlord, that landlord could apply u/s 11 of the Act for eviction and to put it in possession of the building. There is no reason why such a petition should not be in the name of the "landlord" firm itself when the Act enables the "landlord" to apply u/s 11. Such a right is implicit in the provisions of the Act, read with the general definition of "person" referred to above. The absence of a provision applying Order XXX to proceedings under the Act, does not, in my opinion, make any difference, so long as the combined effect of section 2(3) and section 11(3) of the Act read with the definition of "person" in section 2(28) of the Interpretation and General Clauses Act, 1125 is to enable a firm-landlord to file such a petition in its own name. The Supreme Court in
15. In any case and in the absence of any injustice caused to the petitioners by the institution of the proceeding in the firm name, I do not think the matter merits interference under Article 227 of the Constitution on this ground.
16. No other contentions are raised by the petitioners. The original petition is therefore, dismissed. Counsel for the petitioners, however, prays that having regard to their long occupation of the premises they may be granted some more time to vacate from the premises in question. I accede to the request and grant the petitioners time to vacate till and inclusive of February 28, 1989 on condition that the petitioners file, an undertaking in the Rent Control Court on or before January, 1989 that they shall unconditionally surrender vacant possession of the premises in question on or before February 28, 1989. Needless, to say the petitioners will also be liable to pay the amount which they have been paying hitherto as rent, as damages for use and occupation for the period of their occupation after the order Exts.P3 If the petitioners do not file the undertaking as stated above, the first respondent-landlord shall be entitled to execute the order of eviction and recover possession forthwith, if the petitioners have not already been evicted.
The original petition is dismissed subject to the above direction.
