Vinod Kumar v. A. Mohammed Rasheed — 1991 DIGILAW 95 (KER)

JUDGMENT K.A. Nayar, J. 1. I find no ground to entertain this Original Petition. Petitioner is the Managing Director of a firm. The landlord leased out a building to the firm, and on the rent being in arrears, the landlord filed petition for eviction. That was allowed. Thereafter, no revision was filed against the decision of the Rent Control Court. The Managing Partner appeared several times before the Rent Control Court, but no written statement was filed. After the decree has become final, ordering eviction on the ground of nonpayment of rent, execution petition was filed. Before the execution Court it is argued that the decree is a nullity in the sense that the partners of the firm have not been impleaded, but only the firm has been made a party. The Execution Court found that it is only an irregularity and that the order is not a nullity. It was also observed that the execution Court cannot ignore the decree and cannot go behind the decree. Therefore, delivery was ordered on 29-10-1990. Against that order, a Revision was filed. The Revisional Authority also gave several opportunities to deposit the arrears of rent. The revisional authority was also prepared to permit the petitioner to deposit the arrears and on that ground to vacate the order of eviction. But the petitioner was not prepared to pay the arrears of rent. Hence, the Revisional Authority dismissed the revision filed against the order passed in execution. It is those orders, viz. Exts. P2 and P3, that is being challenged in this petition. 2. Admittedly, the lease is in favour of the firm. The eviction petition is filed under S.11 of the Kerala Buildings (Lease and Rent Control) Act 1965. Hence, the Revisional Authority dismissed the revision filed against the order passed in execution. It is those orders, viz. Exts. P2 and P3, that is being challenged in this petition. 2. Admittedly, the lease is in favour of the firm. The eviction petition is filed under S.11 of the Kerala Buildings (Lease and Rent Control) Act 1965. As per S.11(2)(b), if the Rent Control Court after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not satisfied, it shall make an order rejecting of the application thereof by him. It is also provided that the order of the Rent Control Court directing the tenant to put the landlord in possession of the building shall not be executed before the expiry of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow, and if the tenant deposits the arrears of rent with interest and cost of proceedings within the said period of one month or such further period, as the case may be, it shall vacate that order. 3. In the present case, admittedly, the landlord filed a petition for eviction on the ground of arrears of rent. The word 'tenant' has been defined in S.2(6) to mean any person by whom or on whose account rent is payable for a building and includes the heir or heirs of a deceased tenant, and a person continuing in possession after termination of the tenancy in his favour. Admittedly, rent is payable by the firm. The question is whether the firm is a person. There is no definition for the word 'person' in the Act. But the term person is defined in S.2(26) of the Interpretation and General Clauses Act, 1125, which says that 'person' shall include any company or association or body of individuals, whether incorporated or not. The question is whether the firm is a person. There is no definition for the word 'person' in the Act. But the term person is defined in S.2(26) of the Interpretation and General Clauses Act, 1125, which says that 'person' shall include any company or association or body of individuals, whether incorporated or not. The firm is an association or body of individuals, and hence, it will satisfy the definition of person. Therefore, going by the statute, the orders impugned in this Original Petition cannot be found fault with. 4. Counsel for the petitioner submitted that in view of the provisions in S.23 of the Kerala Buildings (Lease and Rent Control) Act, in so far as the provisions of Order XXX of the Code of Civil Procedure is not applicable in rent control proceedings, the partners have to be sued individually. Counsel cited the decision reported in Chotelal Pyarelal v. Shikarchand ( AIR 1984 SC 1570 ) in support of that proposition. In that case, the landlord filed an application to evict the tenant which was a partnership firm. The tenant raised a preliminary contention that no application could be maintained against a partnership firm, and the application was liable to be rejected. The High Court took the view that an application for eviction was maintainable against a partnership firm without joining any partner constituting the partnership firm as respondent to the application. But the Supreme Court, while considering that question, held that there can be no doubt that since the Code of Civil Procedure does not apply to rent control proceedings, no application for eviction can be maintained against a firm in the firm name. It was observed that the firm is merely a compendious name for the partners constituting it and it is only by virtue of the provisions of Order XXX of the Code of Civil Procedure that a firm can sue and be sued in its own name without the partners being impleaded nominee. But the Supreme Court did not dismiss the application on that ground. The Supreme Court held that it will be merely a misdescription of the tenant and this misdescription can be corrected at any stage of the proceedings. The Supreme Court also noted that the partners were before the Court, though in a wrong name. But the Supreme Court did not dismiss the application on that ground. The Supreme Court held that it will be merely a misdescription of the tenant and this misdescription can be corrected at any stage of the proceedings. The Supreme Court also noted that the partners were before the Court, though in a wrong name. This Court also considered the same question in Javerilal Kalyaniji v. M/s. Sheth Brothers ( 1989 (2) KLJ 445 ) and held that an application for eviction filed in the name of a firm is in substance, and in reality, by all the partners with a defective description of the landlord, and it is liable to be amended or corrected. This misdescription was held to be a matter which falls in the realm of procedure which cannot vitiate the proceedings or render it void. I am in respectful agreement with the above judgment of the learned Judge. 5. From Ext. P2 it is seen that the petitioner entered appearance before the Rent Control Court. Enough and repeated opportunities were given to the petitioner to file objection to the eviction petition. But he failed to file any objection. Petition for eviction was filed on the ground of arrears of rent. No rent was paid by the petitioner, nor did he deposit any amount in the Rent Control Court, or before the Revisional Court in spite of several opportunities given to him. Huge amount of rent arrears became due to the landlord. During the hearing of the revision petition against the execution order also, suggestion is seen made to the petitioner, and opportunities was given to the petitioner to remit at least a portion of the arrears of rent. But the petitioner did not do the same. Hence, it is found that the petitioner's approach to this Court is not with bona fides. Unlike the case before the Supreme Court, this matter comes up before me in execution. 6. It is now well settled that the execution court cannot go behind the decree. The Supreme Court, in the decision reported in Sunder Dass v. Ram Parkash ( AIR 1977 SC 1201 ) held as follows: "Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. 6. It is now well settled that the execution court cannot go behind the decree. The Supreme Court, in the decision reported in Sunder Dass v. Ram Parkash ( AIR 1977 SC 1201 ) held as follows: "Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can therefor, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all, vide Kiran Singh v. Chaman Paswan, (1955) 1 SCR 177( AIR 1954 SC 340 ) and Hiralal Patni v. Kali Nath. (1962) 2 SCR 747 = ( AIR 1962 SC 199 )". The decree in this case is not a nullity. As observed by Mookerjee, J. in Ashuthosh Sikdar v. Behari Lal Kirtania (1908) ILR 35 Cal. 61, no hard and fast line can be drawn between a nullity and an irregularity. An irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding, or apply toils whole operation, whereas a nullity is a proceeding that is taken without any foundation for it. In M/s. Chotelal Pyarelal v. Shikkarchand ( AIR 1984 SC 1570 ), the Supreme Court, after holding that the rent control application in the firm name is not maintainable, further observed: ".............But we agree with the Division Bench of the High Court that this cannot by itself result in the dismissal of the application. In M/s. Chotelal Pyarelal v. Shikkarchand ( AIR 1984 SC 1570 ), the Supreme Court, after holding that the rent control application in the firm name is not maintainable, further observed: ".............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 mis description 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 a wrong name". In view of the above, the order cannot be styled as a nullity. 7. The petitioner had adequate time to get the eviction order set aside by payment of rent. The revisional Court also was prepared to set aside the eviction order if the petitioner was willing to remit at least a portion of the rent. Even that offer was not acceptable to the petitioner. In the above circumstances, I find no ground to entertain this Original Petition. There is no miscarriage of justice. In writ proceedings, technicalities shall not be allowed to defeat substantial justice. Procedural laws are there only to do justice, whoever be the parties. The Original Petition is, therefore, dismissed.