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Allahabad High Court · body

2008 DIGILAW 798 (ALL)

PUNJAB & SIND BANK v. MANORAM AGENCIES

2008-04-09

DILIP GUPTA

body2008
JUDGMENT Hon’ble Dilip Gupta, J.—This Revision has been filed by the tenant under Section 25 of the Provincial Small Cause Courts Act, 1887 for setting aside the judgment and decree dated 31st May, 1999 whereby the suit filed by the landlord for eviction and recovery of rent, damages and mesne profit was decreed for eviction and for cost of notice and the defendants were directed to vacate the premises and deliver its vacant possession to the plaintiffs within three months. 2. SCC Suit No. 9 of 1996 had been filed impleading Punjab and Sind Bank, through its Manager, Allahabad (hereinafter referred to as the Bank) as defendant No. 2. While M/s Manoram Agencies through its partner Smt. Rajni Tandon was Plaintiff No. 1, the other partner of the said firm Smt. Rajni Tandon, Sri Harish Tandon and Smt. Padma Tandon were arrayed as plaintiff Nos. 2, 3 and 4. The plaint was filed with the allegation that M/s Manoram Agencies had let out a portion of building No. 34, M.G. Marg, Allahabad to the Bank on a monthly rent of Rs. 5,677.88 besides water tax; that the building let out to the Bank was exempted from the operation of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (hereinafter referred to as the ’Act’) in view of the provisions of Section 2(1)(g) of the Act since the rent of the building exceeded Rs. 2,000/- per month; that the tenancy of the defendants was terminated by the notice dated 23rd April, 1996 which was sent by registered post and that as the defendants failed to comply with the terms of the said notice the cause of action for possession and recovery of rent and damages accrued in favour of the plaintiffs on or about 26th May, 1996 after the expiry of the period mentioned in the notice. It was, therefore, prayed that a decree of eviction of the defendants from the building be passed in favour of the plaintiffs. The plaintiffs also claimed decree for Rs. 26,228.94 towards rent at the admitted rate, damages for use and occupation till the date of filing of Suit and cost of notice and decree for mesne profit at the rate of Rs. 4,000/- per day. 3. A written statement was filed on behalf of the Bank. The plaintiffs also claimed decree for Rs. 26,228.94 towards rent at the admitted rate, damages for use and occupation till the date of filing of Suit and cost of notice and decree for mesne profit at the rate of Rs. 4,000/- per day. 3. A written statement was filed on behalf of the Bank. It was admitted that M/s Manoram Agencies was the landlord of the portion of the building which was under its tenancy. It was, however, stated that the matter relating to enhancement of rent was pending adjudication in Writ Petition No. 40333 of 1996 and W.P. No. 404 of 1997 that had been filed by M/s Manoram Agencies and the Bank respectively and that the constitutional validity of the provisions of Section 2(1)(g) of the Act was also under consideration of this Court in Writ Petition No. 41312 of 1996 that had been filed by the Bank. It was also asserted that the notice dated 23rd April, 1996 was illegal and ineffective and the plaintiffs had no right to terminate the tenancy of the defendant Bank and that since the cause of action in the present case was based on the aforesaid illegal notice, the suit itself was liable to be dismissed under Order VII Rule 11 of the Code of Civil Procedure. It was further asserted that previously the landlord had let out the building to the tenant M/s Manoram Agencies and subsequently an application under Section 25(2) of the Act was moved by the tenant for permission to sub-let a portion under its tenancy to the defendant Bank; that the Rent Control and Eviction Officer by the order dated 26th May, 1975 granted permission to sub-let the portion under Section 25(2) of the Act and subsequently the premises were let out to the Bank on 1st February, 1976; that Section 2(1)(g) of the Act is not applicable in the present case as it contemplates rent paid by the main tenant to the landlord and not the amount paid by the sub-tenant to the tenant; that as sub-letting can be done by the tenant with the permission in writing of the landlord and the Rent Control and Eviction Officer, the lease cannot be determined unilaterally without the permission in writing of the landlord and the Rent Control and Eviction Officer; that the rent envisaged under Section 2(1)(g) of the Act means the rent fixed by the Rent Control and Eviction Officer in the allotment proceeding and not by way of a private arrangement between the tenant and the sub-tenant and in the present case, the Rent Control and Eviction Officer had not fixed any rent; that the plaintiffs had earlier filed an application under Section 21(8) of the Act for enhancement of the rent but in the present suit, they have alleged that the provisions of the Act were not applicable and that the plaintiffs were not entitled to any damages since the dispute with regard to the enhancement of monthly rent was pending in the two writ petitions. 4. The Judge Small Cause Courts framed the following points for determination : “(1) Whether the relationship of landlord and tenant exists in between the plaintiffs and the defendants over the portion of tenancy of building No. 34, M.G. Marg, Allahabad ? (2) Whether the aforesaid building under tenancy is exempt from the operation of the provision of Act No. XIII of 1972 ? If yes, its effect. (3) Whether the notice dated 23.4.1996 issued by plaintiff to the defendant is legal and effective, and the defendants are liable to be evicted from the portion of the building in tenancy ? (4) Whether the plaintiffs have right to sue ? If yes, its effect. (3) Whether the notice dated 23.4.1996 issued by plaintiff to the defendant is legal and effective, and the defendants are liable to be evicted from the portion of the building in tenancy ? (4) Whether the plaintiffs have right to sue ? (5) Whether there is any arrears of rent due upon the defendants and the plaintiffs are entitled to any recovery thereof including the damages (mesne profit) etc.? And lastly (6) To what relief, if any, plaintiffs are entitled ?” 5. Point No. 1 was decided in the affirmative and it was held that the defendant Bank was the tenant of M/s Manoram Agencies in respect of the portion of the building in question. Point No. 2 was decided in favour of the plaintiffs and it was held that the provisions of the Act were not applicable to the building. Point No. 3 was also decided in favour of the plaintiffs and it was held that the notice dated 23rd April, 1996 was legal and effective and it determined the tenancy in question on 25th May, 1996 and the defendants were liable to be evicted from the portion of the building in its tenancy. In respect of Point No. 4, it was held that the plaintiffs had the right to sue and the suit was not barred under Section 69(2) of the Indian Partnership Act, 1932 (hereinafter referred to as the ‘Partnership Act’). In respect of Point No. 5, it was held that when the notice dated 23rd April, 1996, which was the basis of the suit, does not contain the demand of arrears of rent at admitted rate of rent, the decree for claimed arrears of rent, cannot be passed and nor could damages/mesne profit be awarded. While deciding the Point No. 6, it was held that since the defendants had not complied with the valid notice terminating the tenancy by vacating the premises in suit followed by delivery of possession, the plaintiffs were entitled to the relief of eviction and cost of notice, but they were not entitled to arrears of rent or damages since that was a matter to be adjudicated by the High Court in the pending writ petitions for which the plaintiffs were at liberty to sue after the final adjudication. 6. 6. I have heard Sri Yogesh Agrawal, learned Counsel for the revisionists and Sri S. Ali Murtaza, learned Counsel for the opposite parties. 7. Learned Counsel for the revisionists submitted that the premises in dispute were not exempted from the operation of the Act as Section 2(1)(g) of the Act contemplates monthly rent paid by the main tenant to the landlord and not what is paid by the sub-tenant to the main tenant and that once the building had been sub-let under Section 25(2) of the Act with the permission in writing of the landlord and the District Magistrate, the tenancy can be terminated only with the permission of the landlord and the District Magistrate. He further submitted that the plaintiff No. 1 M/s Manoram Agencies was an unregistered firm and, therefore, the suit was not maintainable at its behest in view of the provisions of Section 69(2) of the Partnership Act and that the notice sent under Section 106 of the Transfer of Property Act was not a valid notice. 8. Learned Counsel for the respondents, however, submitted that Section 2(1)(g) of the Act is attracted in the present case since this mentions the monthly rent of a building and not what is paid by the main tenant to the landlord or by the sub-tenant to the main tenant. He further submitted that once the permission was granted to M/s Manoram Agencies under Section 25(2) of the Act by the District Magistrate with the consent of the landlord to induct the Bank as a sub-tenant, the relationship between M/s Manoram Agencies and the Bank became that of a landlord and a tenant and, therefore, M/s Manoram Agencies was justified in sending the notice under Section 106 of the Transfer of Property Act for determining the tenancy and the notice sent under Section 106 of the Transfer of Property Act was a valid notice. It has also been submitted that even though M/s Manoram Agencies was an unregistered firm, the suit had not been filed to enforce the right arising from a contract and, therefore, the bar contained in Section 69(2) of the Partnership Act was not applicable. 9. It has also been submitted that even though M/s Manoram Agencies was an unregistered firm, the suit had not been filed to enforce the right arising from a contract and, therefore, the bar contained in Section 69(2) of the Partnership Act was not applicable. 9. Elaborating his submission on the first point as to whether the premises in dispute were exempted from the operation of the Act, learned Counsel for the Revisionists submitted that Section 2 of the Act exempts certain building from the operation of the Act and under Section 2(1)(g) any building whose monthly rent exceeds Rs. 2,000/- is exempted from the operation of the Act. According to him the word “building” used in Section 2(1)(g) of the Act would be the entire building which was let-out to the tenant by the landlord and would not under any circumstances mean that portion of the building which was sub-let by the tenant because if this interpretation is adopted then it may lead to an absurd situation. Citing an example, he submitted that in a particular case, the entire building may be covered by the provisions of the Act since the rent paid by the main tenant to the landlord is less than Rs. 2,000/-, but a portion of the building will exempted from the operation of the Act if the sub-tenant was paying more than Rs. 2,000/- as rent to the main tenant. It is his submission that this Court should interpret this provision in a manner that such absurdity is avoided. 10. In order to appreciate the contention of learned Counsel for the parties, it would be useful to examine the definition of ‘building’ as well as the definition of ‘tenant’ and ‘landlord’ contained in Section 3 of the Act. 11. Building’ is defined under Section 3(i) to mean : “3(i) “building”, means a residential or non-residential roofed structure and includes— (i) any land (including any garden), garages and out-houses, appurtenant to such building ; (ii) any furniture supplied by the landlord for use in such building ; (iii) any fitting and fixtures affixed to such building for the more beneficial enjoyment thereof ;” 12. ’Tenant’ under Section 3(a) means : “3(a) “tenant”, in relation to a building, means a person by whom its rent is payable, and on the tenant’s death— (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death ; (2) in the case of a non-residential building, his heirs ; Explanation.—An occupant of a room in a hotel or a lodging house shall not be deemed to be a tenant ;” 13. ‘Landlord’ is defined under Section 3(j) to mean : “3(j) “landlord”, in relation to a building, means a person to whom its rent is or if the building, were let would be, payable, and includes, except in clause (g), the agent or attorney, of such person;” 14. Section 2(1)(g) of the Act provides that nothing in the Act shall apply to any building whose monthly rent exceeds Rs. 2,000/-. While sub-section (1) of Section 25 of the Act provides that no tenant shall sub-let the whole of the building under his tenancy, sub-section (2) of the said Section 25 provides that the tenant may with the permission in writing of the landlord and of the District Magistrate, sub-let a part of the building. Thus, a tenant is prohibited under sub-section (1) of Section 25 of the Act from letting out the whole of the building but a part of the building can be sub-let by the tenant with the permission in writing of the landlord and of the District Magistrate. 15. The contention of the learned Counsel for the Revisionists that Section 2(1)(g) of the Act should apply only to the building let out by the landlord to the main tenant and not to that part of the building sub-let by the main tenant is not borne out from the provisions of Section 2(1)(g) of the Act. It needs to be mentioned that emphasis under Section 2(1)(g) of the Act is on the amount of monthly rent of the building because the building is exempted from the operation of the Act if the monthly rent exceeds Rs. 2,000/- per month. Thus the same building will be governed by the Act if the rent is less than Rs. 2,000/- but at some other point of time if the rent is enhanced to more than Rs. 2,000/- per month. Thus the same building will be governed by the Act if the rent is less than Rs. 2,000/- but at some other point of time if the rent is enhanced to more than Rs. 2,000/- per month it will be exempted from the operation of the Act. Likewise, a part of the building may be exempted from the operation of the Act if it has been sub-let on a monthly rent of more than Rs. 2,000/- per month but it may again be governed by the Act, if it is let out subsequently on a monthly rent of less than Rs. 2,000/-. Thus the same building may be governed by the Act or may be exempted from the operation of the Act depending upon the monthly rent. The emphasis, therefore, under Section 2(1)(g) of the Act is on the monthly rent and not on the building. In such circumstances, it is not possible to accept the contention of the learned Counsel for the Revisionists. 16. The decision of this Court in Prem Chandra v. Smt. Pushpawati Devi and others, 1977 AWC 410 supports the aforesaid view. The question that arose for consideration in this case was whether an application under Section 21 of the Act was maintainable only by the landlord and not by a tenant against his sub-tenant. This Court observed : “........Under the Act a tenant in relation to a building means a person by whom its rent is payable and the ’landlord’ in relation to a building means a person to whom its rent is or if the buildings were it would be payable and includes, except in clause (g), the agent or attorney of such person. There is no dispute that one Hashim Ali is the owner of the building. He let it out to the petitioner who in his turn sub-let a portion to Smt. Pushpawati Devi who paid the rent of the portion, let out to her to the petitioner. The petitioner is the person to whom rent is payable in respect of the portion occupied by Smt. Pushpawati Devi. There is no privity of contract between Smt. Pushpawati Devi and the owner of the building. It cannot possibly be disputed that Smt. Pushpawati Devi comes within the definition of tenant and the petitioner has the character of landlord in relation to the premises in occupation of Smt. Pushpawati Devi. There is no privity of contract between Smt. Pushpawati Devi and the owner of the building. It cannot possibly be disputed that Smt. Pushpawati Devi comes within the definition of tenant and the petitioner has the character of landlord in relation to the premises in occupation of Smt. Pushpawati Devi. The word building used in the definitions of tenant and landlord does not necessarily means the entire buildings. A part of the building, treated as a separate entity, is also a building within the meaning of the Act. The word building has been used in that sense in several other provisions of the Act. I am not prepared to accept the contention raised by the respondent that the word building implies only the entire structure and not a part of it even if it is let out as a separate and distinct entity. In view of the definitions of the words landlord and tenant there seems to be no escape from the conclusion that the petitioner is a landlord and Smt. Pushpawati Devi is a tenant of the premises in dispute.” (Emphasis supplied) 17. It is, therefore, clear that this Court repelled the contention that the word “building” means only the entire building and not a part of it even if it is let out as a separate and distinct entity. 18. In view of the aforesaid decision of this Court in Prem Chandra it has to be held that the provisions of Section 2(1)(g) of the Act will also apply to that portion of the main building which has been sub-let by the main tenant to a sub-tenant under Section 25(2) of the Act. 19. It also needs to be noticed that in paragraph 2 of the written statement, the Bank clearly admitted that M/s Manoram Agencies was the landlord which had let out a portion of the building to the Bank. 20. It is not in dispute that the Bank was paying Rs. 5,677.88 per month as rent to the M/s Manoram Agencies besides water tax. Thus, in view of the provisions of Section 2(1)(g) of the Act, the building in occupation of the tenant was exempted from the operation of the Act. 21. 20. It is not in dispute that the Bank was paying Rs. 5,677.88 per month as rent to the M/s Manoram Agencies besides water tax. Thus, in view of the provisions of Section 2(1)(g) of the Act, the building in occupation of the tenant was exempted from the operation of the Act. 21. Sri Yogesh Agarwal, learned Counsel for the Revisionists also urged that the Bank had been inducted as a sub-tenant under Section 25(2) of the Act by the main tenant with the consent in writing of the landlord and the District Magistrate and, therefore, in such circumstances its tenancy could have been determined by the main tenant with the consent in writing of the landlord and the District Magistrate but in the present case the tenancy was determined by the main tenant without obtaining such consent. 22. This contention of the learned Counsel for the Revisionists cannot be accepted. Section 25(1) of the Act provides that no tenant shall sublet the whole of the building under its tenancy. Sub-section (2) of Section 25 of the Act, however, provides that the tenant may with the permission in writing of the landlord and of the District Magistrate, sublet a part of the building. There is no dispute that the Bank was inducted as a sub-tenant with the permission in writing of the landlord and the District Magistrate. This brought into existence the relationship of landlord and the tenant between M/s. Manoram Agencies and the Bank as was observed by this Court in Prem Chandra. The Act does not contain any provision to the effect that the sub-tenancy can be determined only with the written permission of the District Magistrate and the landlord and such a condition cannot also be implied under Section 25(2) of the Act. 23. The next question that arises for consideration is whether the suit was not maintainable in view of the provisions of Section 69(2) of the Partnership Act. It is the contention of the learned Counsel for the Revisionists that the suit was not maintainable since it had been filed by an unregistered firm for enforcing a right arising from a contract. The next question that arises for consideration is whether the suit was not maintainable in view of the provisions of Section 69(2) of the Partnership Act. It is the contention of the learned Counsel for the Revisionists that the suit was not maintainable since it had been filed by an unregistered firm for enforcing a right arising from a contract. According to him after the District Magistrate had granted permission under Section 25(2) of the Act by the order dated 26th May, 1975, the accommodation was sub-let to the petitioner on 1st February, 1976 under a contract and thus the suit was filed to enforce a right arising from the said contract and, therefore, was hit by Section 69(2) of the Partnership Act. In support of his contention, he has placed reliance upon decision of the Supreme Court rendered in M/s Raptakos Brett & Company Ltd. v. Ganesh Property, AIR 1998 SC 3085 . 24. Learned Counsel for the landlord, however, contended that the tenancy had been terminated by the notice dated 23rd April, 1996 on the expiry of the period of 30 days from the date of receipt of notice and the tenant was asked to deliver its vacant possession under his tenancy on the expiry of the said period mentioned in the notice. The cause of action for filing the suit, therefore, arose when the tenant did not comply with the notice. He, therefore, contended that the suit had not been filed for enforcement of any right arising from the contract but had been filed for enforcing the rights available under Section 111 (h) read with Section 108 (q) of the Transfer of Property Act and was, therefore, not barred by provisions of Section 69(2) of the Partnership Act. 25. In order to appreciate the contentions advanced by the learned Counsel for the parties, the provisions of Section 69(2) of the Partnership Act need to be reproduced and they are : “69(2). No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.” 26. No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.” 26. It has, therefore, to be determined whether the Suit was to enforce a right arising from a contract’ because only in such circumstances it would not be maintainable if it was filed by an unregistered firm. 27. Paragraph 8 of the plaint mentions that the tenancy of the defendant Bank was terminated by the notice dated 23rd April, 1996, but the defendant failed to comply with the said notice. Paragraph 11 of the plaint mentions that cause of action under these circumstances accrued in favour of plaintiffs after expiry of the period mentioned in the notice for the recovery of rent and for eviction and realization of damages. 28. It is, therefore, necessary to examine the notice and the relevant portion of the notice dated 23rd April, 1996 sent under Section 106 of the Transfer of Property Act is quoted below : “Under instructions from my client M/s Manoram Agencies, 34 Mahatma Gandhi Marg, Allahabad, through Smt. Rajni Tandon one of its Partner, have to write to you as follows : ......................... (5) That the building under your tenancy is not governed by the provisions of U.P. Act No. XIII of 1972 with effect from 29th September, 1994 as per Section 2(1)(g) of the said Act. Under the circumstances, my client aforesaid does not want to keep you as its tenant in the portion of building No. 34, Mahatma Gandhi Marg, (Civil Lines) Allahabad, presently numbered as 146, M.G. Marg, Allahabad and your tenancy is hereby terminated through this notice and the same shall stand actually terminated on expiry of the period of thirty days from the receipt of this notice and you hereby required to quit, vacate and deliver peaceful vacant possession of the portion of aforesaid building under your tenancy to my client on expiry of the period of this notice, failing which a suit for recovery of arrears of rent, damages for use and occupation @ Rs. 5,000/- per day and your eviction from the portion of the building in question shall be filed against you without any further reference to you into the matter which may please be noted. You are, further required to pay Rs. 1,650/- to my client towards the cost of this notice.” 29. Section 106 of the Transfer of Property Act as amended in the State of U.P. is as follows : “In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six month’s notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable on the part of either lessor or lessee, by thirty days’ notice. Every notice under this section must be in writing signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.” 30. Thus, the tenancy of the defendant Bank was terminated by the notice dated 23rd April, 1996 sent under Section 106 of the Transfer of Property Act. Section 111(h) of the Transfer of Property Act provides that a lease of immovable property determines on the expiration of the notice to determine the lease duly given by one party to the other. Section 108(q) of the Transfer of Property Act provides that on the determination of the lease, the lessee is bound to put the lessor into possession of the property. The pleadings contained in the plaint clearly show that the suit was founded on the provisions of Sections 106, 108(q) and 111(h) of the Transfer of Property Act. 31. Section 108(q) of the Transfer of Property Act provides that on the determination of the lease, the lessee is bound to put the lessor into possession of the property. The pleadings contained in the plaint clearly show that the suit was founded on the provisions of Sections 106, 108(q) and 111(h) of the Transfer of Property Act. 31. In M/s Raptakos Brett & Company Ltd. the Supreme Court examined the maintainability of the suit filed by an unregistered firm in the context of the provisions of Section 69(2) of the Partnership Act and held that the suit filed by an unregistered firm is not barred under Section 69(2) of the Partnership Act if it is based on a statutory right or a common law right. It was observed that the right to evict a tenant upon expiry of the lease was not a right “arising from a contract” but was a statutory right conferred under the provisions of the Transfer of Property Act and in this connection the Supreme Court examined the provisions of Sections 111(a) and 108(q) of the Transfer of Property Act and observed : “It is, therefore obvious that a statutory obligation is foisted on the lessee on the determination of the lease which earlier existed in his favour. Therefore, on a conjoint reading of Section 108(q) read with Section 111(a) of the Transfer of Property Act, it becomes obvious that under law the erstwhile landlord is entitled to base his cause of action on the statutory obligation of the erstwhile lessee on determination of the lease to put the lessor in possession of the property. It is this statutory right of the lessor and the corresponding statutory obligation of the lessee that can be said to have been relied upon by the plaintiff’ for getting peaceful possession from the defendant’ as per the recitals in second part of paragraph 2 read with paragraphs 2 and 4 of the plaint. ..................... ...........On the facts of the present case it has to be held that there is no further locus poenitentiae given to the tenant to continue to remain in possession after the determination of lease by efflux of time on the basis of any such contrary express term in the lease. ..................... ...........On the facts of the present case it has to be held that there is no further locus poenitentiae given to the tenant to continue to remain in possession after the determination of lease by efflux of time on the basis of any such contrary express term in the lease. Consequently, it is the legal obligation flowing from Section 108(q) of the Act which would get squarely attracted on the facts of the present case and once the suit is also for enforcement of such a legal right under the law of the land available to the landlord it cannot be said that enforcement of such right arises out of any of the express terms of the contract which would in turn get visited by the bar of Section 69, sub-section (2) of the Partnership Act. Consequently it has to be held that when paragraph 2 of the plaint in addition made a reference to right of the plaintiff’ to get possession under the law of the land, the plaintiff’ was seeking enforcement of its legal right to possession against the erstwhile lessee flowing from the provisions of Section 108 (q) read with Section 111(a) of the Transfer of Property Act which in turn also sought to enforce the corresponding statutory obligation of the defendant under the very same statutory provisions. So far as this part of the cause of action is concerned it stands completely outside the sweep of Section 69, sub-section (2) of the Partnership Act...........” (emphasis supplied) 32. The aforesaid decision of the Supreme Court concludes the matter against the Revisionist. In the present case the only difference is that the lease stood determined not under Section 111(a) of the Transfer of Property Act on the expiry of the lease period but stood determined under Section 111(h) of the said Act on the expiration of the period mentioned in the notice sent under Section 106 of the said Act. The cause of action is based on the said notice as the defendant Bank did not give possession of the premises to the plaintiffs even after receipt of the notice. It is, therefore, clear that the suit was based on the provisions of the Transfer of Property Act and was not based on ‘any right arising from a contract.’ 33. The aforesaid decision of the Supreme Court in M/s. Raptakos Brett & Co. It is, therefore, clear that the suit was based on the provisions of the Transfer of Property Act and was not based on ‘any right arising from a contract.’ 33. The aforesaid decision of the Supreme Court in M/s. Raptakos Brett & Co. Ltd. was referred to with approval in M/s Haldiram Bhujiawala and another v. M/s Anand Kumar Deepak Kumar and another, AIR 2000 SC 1287 . 34. The last contention urged by Sri Yogesh Agarwal, learned Counsel for the Revisionists is that the notice under Section 106 of the Transfer of Property Act is defective and does not terminate the tenancy as it was sent by the firm through one partner only whereas the firm has four partners. It is his contention that the other partners of the firm cannot be bound by such a notice and, therefore, the tenancy was not determined. 35. Learned Counsel for the respondent, however, submitted that the notice under Section 106 of the Transfer of Property Act was a valid notice which was sent on behalf of the firm M/s. Manoram Agencies and even otherwise the defect, if any, stood waived as this plea was neither raised in the reply sent to the notice or in the Written Statement. He further submitted that even otherwise, one co-landlord can send a notice for termination of the tenancy under Section 106 of the Transfer of Property Act and in support of his contention he has placed reliance upon the decision of this Court in Manoj Kumar v. Xth Additional District Judge, Muzaffarnagar and others, 2004 (2) ARC 322. 36. A perusal of the notice dated 23rd April, 1996 shows that it had been sent by the lawyer under the instructions received from his client M/s. Manoram Agencies through Smt. Rajni Tandon, one of its partners. A reply dated 14th June, 1996 was sent by the lawyer of the Bank to the aforesaid notice and the relevant portion is as follows : “Under the instructions and on behalf of my client Punjab & Sind Bank, 34, M.G. Marg, Civil Lines, Allahabad, I am sending the reply of your notice dated 23.4.96, which has been sent by you on behalf of your client M/s Manoram Agencies to my client mentioned above, which runs as under : 1. That in reply to the comments of para 1 of the notice it is admitted that M/s Manoram Agencies is the landlord of the portion of the building No. 34, M.G. Marg, Civil Lines, Allahabad under the tenancy of my client, but the rate of monthly rent is denied as given in para under reply. ............. 14. That the notice dated 23.4.96 sent by you on behalf of your client is illegal and premature, as such your client is not entitled to terminate the tenancy of my client and demand the alleged arrears of rent.” 37. It is, therefore, clear that the objection now sought to be raised in the present Revision was not raised by the Bank in its reply to the notice dated 23rd April, 1996. It is also clear that the reply admits that the notice was sent by the firm. It is also not in dispute that the firm was the landlord of the Bank. 38. This apart, in the plaint it was mentioned in paragraph 8 that by the registered notice dated 23rd April, 1996, the tenancy of the defendant was terminated and the said notice was served upon the defendant on or about 25th April, 1996. The Bank filed a Written Statement mentioning therein : “9. That in reply to the contents of para 8 of the plaint it is respectfully submitted that the notice dated 23.4.96 is illegal and ineffective by which the plaintiffs have no right to terminate the tenancy of the defendants. ....................... 12. That the contents of para 11 of the plaint are not admitted. The notice dated 23.4.96 is illegal and ineffective. The cause of action of the present suit is based on the aforesaid illegal notice, as such no cause of action arose in the present suit. In the said circumstance, the suit of the plaintiff is liable to be rejected under Order VII, Rule 11 of the Code of Civil Procedure. ........................ 19. That the notice dated 23.4.96 is illegal, invalid and ineffective on the following grounds : (i) That the notice has been sent by the Counsel for the plaintiff No. 1 and not by other plaintiffs, who have joined the suit. (ii) That the notice has been sent on the basis of monthly rent at the rate of Rs. ........................ 19. That the notice dated 23.4.96 is illegal, invalid and ineffective on the following grounds : (i) That the notice has been sent by the Counsel for the plaintiff No. 1 and not by other plaintiffs, who have joined the suit. (ii) That the notice has been sent on the basis of monthly rent at the rate of Rs. 20,000/- per month, which is not admitted by the defendant Punjab & Sind Bank, because the matter with respect to the rate of monthly rent is sub-judice before the Hon’ble High Court, Allahabad in Civil Misc. Writ Petition No. 40333 of 1996 and 404 of 1996 respectively. (iii) That the plaintiff No. 1 demanded the due rent amounting to Rs. 18,08,488.26 on the basis of monthly rent at the rate of Rs. 20,000/- per month. (iv) That the notice is entirely based on the provisions of Section 2(1)(g) of U.P. Act No. XIII of 1972 added by U.P. Act No. 5 of 1995, which is sub-judice before Hon’ble High Court, Allahabad in Civil Misc. Writ Petition No. 41312 of 1996, Punjab & Sind Bank v. State of U.P. and others. (v) That the plaintiff No. 1 claimed the damages for use and occupation at the rate of Rs. 5,000/- per day but in the suit they claimed the same at the rate of Rs. 4,000/- per day.” 39. It is, therefore, clear that though the notice was said to be illegal, invalid and ineffective on various grounds mentioned in paragraph 19 of the Written Statement, but the ground now sought to be raised in the present Revision was not taken by the Bank in the Written Statement. It needs to be mentioned that what was urged in ground (i) of paragraph 19 of the Written Statement was merely that the notice was sent by the Counsel for plaintiff No. 1 only i.e. the firm M/s. Manoram Agencies and not by the other plaintiffs. Thus, what was sought to be urged was that plaintiff Nos. 2, 3 and 4 had not sent any notice under Section 106 of the Transfer of Property Act. Thus, it was admitted that plaintiff No. 1 i.e. the firm had sent the notice to determine the tenancy. Plaintiff No. 1 is the landlord as is also admitted in paragraph 1 of the Written Statement. 40. 2, 3 and 4 had not sent any notice under Section 106 of the Transfer of Property Act. Thus, it was admitted that plaintiff No. 1 i.e. the firm had sent the notice to determine the tenancy. Plaintiff No. 1 is the landlord as is also admitted in paragraph 1 of the Written Statement. 40. Point No. 3 of the points for determination framed by the Judge, Small Cause Courts is as to whether the notice dated 23rd April, 1996 sent by the plaintiff to the defendant is legal and effective and the tenants are liable to be evicted from the portion of the building in its tenancy. A perusal of the judgment shows that even during the arguments this submission was not raised. It is, therefore, clear that the submission that has now been made was never raised by the Bank in the Court below. 41. In such circumstances, the defendants shall be deemed to have waived this particular objection about the invalidity or infirmity, if there be any, in the notice, as was observed by the Supreme Court in Parwati Bai v. Radhika, AIR 2003 SC 3995 : “The singular question to be examined in the present case is whether the tenancy was terminated in accordance with the provisions of Section 106 of the Transfer of Property Act. The receipt of notice by the defendant is admitted in the written statement. The defendant has not raised any specific objection as to the validity of the notice. An objection as to invalidity or infirmity of notice under Section 106 T.P. Act should be raised specifically and at the earliest; else it will be deemed to have been waived even if there exists one. It cannot, therefore, be said that the notice in the present case suffered from any infirmity. A copy of the notice was exhibited and proved by the plaintiff as Ext. P-4.” 42. It also needs to be mentioned that the receipt of the notice was admitted by the Bank and it was also proved by PW-1. In the cross-examination no question was put to him as to whether the other partners had objected to the sending of the notice and even otherwise, there is nothing on the record to indicate that the other partners ever objected to the said notice. 43. The matter may be examined from another angle. In the cross-examination no question was put to him as to whether the other partners had objected to the sending of the notice and even otherwise, there is nothing on the record to indicate that the other partners ever objected to the said notice. 43. The matter may be examined from another angle. The Courts have held that where only one co-owner/landlord files a suit for eviction without impleading the other co-owners/landlords then too the Suit is maintainable. In this connection reference may be made to the decision of this Court in Manoj Kumar (supra) wherein it was observed : “............Even it is held that plaintiff was not the sole owner/landlord but only one of the owners/landlords of the shop in dispute still suit filed by him without impleading other co-owners was quite maintainable. Supreme Court in AIR 1993 SC 1587 , while reversing Full Bench of Authority of Gujarat High Court, AIR 1973 Guj. 131 , held that suit for eviction of tenant filed by one of the co-owners/landlords even without impleading other co-owners/landlords is quite maintainable unless objected to by other co-owners landlords. ...........” 44. Even otherwise, in view of the provisions of Sections 19 and 22 of the Partnership Act, the contention advanced by the learned Counsel for the Revisionist on merit cannot also be accepted. 45. There is, therefore, no merit in any of the contentions advanced by the learned Counsel for the Revisionists. The Revision is, accordingly, dismissed. ————