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2012 DIGILAW 694 (KER)

Abdul Salim v. Mugal Theatre & Padiyans Complex

2012-07-23

A.V.RAMAKRISHNA PILLAI, PIUS C.KURIAKOSE

body2012
ORDER : A.V. Ramakrishna Pillai, J. The tenant who was sought to be evicted from a shop room and an attached godown by the respondent a firm by name "Mogul Theatres & Padiyans Complex" on the grounds under S. 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the 'Act' for short), is before us in revision under S. 20 of the Act. The respondent would aver that the tenanted premises which have been in the possession of the petitioner since 1983 are required for storing certain machineries and other equipments during demolition of a cinema, viz. "Mogul Theatres" belonging to the landlord situated in the nearby compound and also for storing building materials during the period of construction of a shopping mall and multiplex theatre in the situs after demolition. 2. We are not referring to the averments under S. 11(4)(iii) of the Act, as it was found against and the order has become final. 3. The revision petitioner resisted the claim contending that there was no landlord-tenant relationship between him and the respondent firm, as the tenanted premises, according to him, was taken on lease by him from "Padiyath Shopping Complex" and not from the respondent "Mogul Theatres & Padiyans Complex." He also denied the need projected on the ground that "Padiyath Shopping Complex" was in possession of several other rooms having more than 5000 sq.ft. to serve the alleged need. According to the revision petitioner, the need alleged is a temporary one which will not fall within the meaning of "need" as contemplated under S. 11(3) of the Act. He also sought for protection under both the provisos to S. 11(3). 4. The order of eviction under S. 11(3) of the Act having been granted by the trial court and confirmed by the Appellate Authority, the revision petitioner has approached this Court. 5. We have heard the learned counsel appearing for both sides. We have also perused the relevant records including the impugned judgment as well as the order of the Rent Control Court. 6. As observed earlier, the contention of the revision petitioner is two fold. Firstly, it was argued that the revision petitioner took the building on lease in the year 1983 from the firm "Padiyath Shopping Complex" and not from "Mogul Theatre & Padiyans Complex", who is the respondent herein. 6. As observed earlier, the contention of the revision petitioner is two fold. Firstly, it was argued that the revision petitioner took the building on lease in the year 1983 from the firm "Padiyath Shopping Complex" and not from "Mogul Theatre & Padiyans Complex", who is the respondent herein. Hence, according to the revision petitioner, there is no landlord-tenant relationship between himself and the respondent firm. Secondly, it was argued that the need alleged is of temporary-nature i.e., till the completion of the shopping mall and the multiplex theatre in the nearby compound and that will not come within the meaning of 'need' as contemplated under S. 11(3) of the Act. We will address these arguments in succession. 7. The line of contentions taken by the revision petitioner compelled us to venture into the facts quite in extenso. The revision petitioner has admitted the execution of Ext. A2 rent deed on the basis of which he was put in possession of the tenanted premises. Ext. A2 was executed in the year 1983 by the petitioner in the name of one Mohamed Ali, S/o. Padiyath Aydrose, who was representing the firm "Padiyath Shopping Complex". While P.A. Mohamed Ali made mention of in Ext. A2 is the son of Padiyath Aydrose, P.M. Mohamed Ali representing the respondent firm is the son of Padiyath Mohamed. It is the definite case of the respondent that the firm which leased out the premises to the revision petitioner stood reconstituted with effect from 13.01.2007. We had the profit of seeing the copy of the partnership deed dated 27.04.1979 by which the firm came into existence. It was produced by the respondent as directed by us. The firm by name "Mogul Theatre & Padiyans Complex" was constituted on 27.04.1979 with nine partners. P.A. Mohamed Ali, S/o. Padiyath Aydrose was the managing partner. P.M. Mohamed Ali, S/o. Padiyath Mohamed was one among the partners. 8. We do notice that the said firm was reconstituted subsequently on 21/03/1990. We got this from the recitals of the subsequent partnership deed dated 24/09/1992; the copy of which was produced by the respondent as per our direction. By the deed of 1992, one more partner by name P.M. Johanan was inducted into the partnership. Thus, the firm stood reconstituted with ten partners, however, without any change in the firm's name or of the managing partner. By the deed of 1992, one more partner by name P.M. Johanan was inducted into the partnership. Thus, the firm stood reconstituted with ten partners, however, without any change in the firm's name or of the managing partner. It is this partnership which was reconstituted as per Ext. A1. Evidently, Ext. A1 was executed after the death of P.A. Mohamed Ali, S/o. Padiyath Aydrose, who was the former managing partner. Ext. A1 reveals that four partners of the then existing firm retired from the firm and the firm was reconstituted with five continuing partners. The retiring partners, the continuing partners and two daughters of deceased P.A. Mohamed Ali are signatories to Ext. A1 deed. As per Ext. A1, P.M. Mohamed Ali S/o. Padiyath Mohamed became the managing partner of the firm. It is interesting to note that the name "Padiyath Shopping Complex" does not figure in any of the aforesaid partnership deeds. However, there is no difficulty to confirm that the respondent firm which came into existence with effect from the date of execution of Ext. A1 had its origin in the year 1979 and assumed its present shape with change of partners from time to time. 9. We also notice that there was a previous eviction proceeding with respect to the same tenanted premises as R.C.R. No. 10/2006 before the same Rent Control Court. A copy of the petition was produced and marked as Ext. A8. Ext. A9 is the objection filed by the revision petitioner in Ext. A8 proceedings. The said RCP was subsequently withdrawn by the petitioner therein with an opportunity to institute fresh proceedings, as evident from Exts.A3 and A4. Ext. A8 proceedings were instituted in the year 2006 by the firm "Padiyath Shopping Complex" represented by its managing partner P.M. Mohamed Ali, S/o. Padiyath Mohamed. It is crucial to note that in Ext. A9 objection filed by the revision petitioner in Ext. A8 proceedings, he has not challenged the locus standi of P.M. Mohamed Ali, S/o. Padiyath Mohamed to represent the firm which stood as the landlord of the tenanted premises. The present proceedings against the revision petitioner were initiated in respect of the same premises by the same Mohamed Ali claiming himself to be the managing partner of the respondent firm "Mogul Theatres & Padiyans Complex" which is the continuation of the old firm. 10. The present proceedings against the revision petitioner were initiated in respect of the same premises by the same Mohamed Ali claiming himself to be the managing partner of the respondent firm "Mogul Theatres & Padiyans Complex" which is the continuation of the old firm. 10. The learned counsel for the revision petitioner heavily relied on Exts.B10 & B11 rent receipts to fortify the case of the revision petitioner that there was no rental arrangement between himself and the respondent firm. Ext. B10 is a rent receipt issued in a printed form with the caption "Padiyath Shopping Complex". That receipt is of the year 2006. According to the learned counsel, the court below failed to reckon the admission of PW1, the managing partner of the respondent firm that the tenant was paying rent to Padiyath Shopping Complex vide Exts.B10 & B11 receipts. PW1 has admitted that Exts.B10 & B11 receipts were issued by him. The revision petitioner has no case that those receipts were issued by some other person. He has no case that PW1 is the managing partner of another firm also. Under such circumstances, what could be discerned from a combined reading of Exts.A1, A2, A8, A9, B10 and B11 is that the name "Padiyath Shopping Complex" and "Mogul Theatres & Padiyans Complex" were used inter changeably while making references to the respondent firm which had its origin in the year 1979. P.A. Mohamed Ali, S/o. Padiyath Aydrose was the managing partner of the original firm. The respondent firm which was reconstituted in the year 2007 is headed by P.M. Mohamed Ali S/o. Padiyath Mohamed i.e., PW1. It was argued that there is nothing on evidence to show that the assets of the former firm have been transferred to the respondent firm and hence, the respondent firm cannot be treated as a successor of the former firm. Therefore, there cannot be any landlord-tenant relationship between the revision petitioner and the respondent; it was so argued. 11. The firms "Mogul Theatres & Padiyans Complex" which is also referred to as "Padiyath Shopping Complex" represented by its managing partner was the landlord of the tenanted premises when the lease arrangement began. It is settled law that partnership is not a juristic person (see Commissioner of Income Tax, West Bengal Vs. A.W. Figgies and Co. and Others, and Munshi Ram and Others Vs. Municipal Committee, Chheharta). It is settled law that partnership is not a juristic person (see Commissioner of Income Tax, West Bengal Vs. A.W. Figgies and Co. and Others, and Munshi Ram and Others Vs. Municipal Committee, Chheharta). Since the firm was not a legal entity, in substance, the partners of the firm would be the landlords. It followed, therefore, that when the firm let out the tenanted premises belonging to it to the revision petitioner, in effect its partners became the landlords. In that sense, each partner was a joint landlord. It was this firm which was reconstituted as per Ext. A1 in February 2007. By the re-constitution, some of the then existing partners retired and others continued. This was with the consent of all the existing partners on the date of re-constitution. It is also well settled that there is no transfer of assets even when a partnership is dissolved (see Madras Bangalore Transport Co. (West) Vs. Inder Singh and Others, and Helper Girdharbhai Vs. Saiyed Mohmad Mirasaheb Kadri and Others. The result is that the partners of the newly constituted firm i.e., the respondent firm became the landlords of the tenant premises. In other words, the partners of the newly constituted firm succeeded to the rights and liabilities of the previous firm. There cannot be any doubt against the proposition that the suit by or in the name of a firm is really a suit by or in the name of partners. Similarly, the decree passed though against a firm is, in effect, a decree against all partners, (see Her Highness Maharani Mandalsa Devi and Others Vs. M. Ramnarain (P) Ltd. and Others). 12. The net conclusion that can be drawn is that the claim petition instituted by 'Mogul Theatres & Padiyans Complex' represented by the present managing partner P.A. Mohamed Ali S/o. Padiyath Aydrose which succeeded the rights and liabilities of original firm is perfectly maintainable. The contention of the revision petitioner that there is no landlord-tenant relationship between himself and the respondent firm does not appear to be convincing and we are not impressed by that. We are of the definite view that the courts below are perfectly justified in holding that the denial of title set up by the revision petitioner is not bona fide. 13. During the pendency of the revision petition, the revision petitioner filed an I/A. to take note of a subsequent event. We are of the definite view that the courts below are perfectly justified in holding that the denial of title set up by the revision petitioner is not bona fide. 13. During the pendency of the revision petition, the revision petitioner filed an I/A. to take note of a subsequent event. It was brought to our notice that the respondent firm stood dissolved as per the unanimous decision of all the partners with effect from 26.11.2011 and for that, a deed of partnership has been executed on 15.5.2012. A copy of the dissolution deed was also produced before us for perusal. By the said deed, the partners agreed to release each other from the articles of partnership. The dissolution was consequent to the demolition of the old cinema for the construction of the shopping mall. It can be seen from that deed that the properties of the firm stood reverted back to P.M. Mohamed Ali, S/o. Padiyath Mohamed who is the managing partner (PW1), as he was the owner of the said property. This was as per the unanimous decision of all partners. 14. Admittedly, the aforesaid event was subsequent to the impugned judgment. The argument advanced by the learned counsel for the revision petitioner is that the claim for evict ion is bound to fail as the alleged need no longer survives due to the dissolution of the respondent firm. The locus standi of the respondent firm to continue the proceedings was also put to serious challenge. In this context, it is useful to have a clear picture as to what exactly are the rights of the partners during the subsistence of the partnership as well as after the dissolution of the firm. The following lucid observations made by the Apex Court in Addanki Narayanappa and Another Vs. Bhaskara Krishtappa and Others. The whole concept of partnership is to embark upon a joint venture and for that purpose to bring in as capital money or even property including immovable property. Once that is done, whatever is brought in would cease to be the exclusive property of the person who brought it in. It would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the joint venture of the business of partnership. Once that is done, whatever is brought in would cease to be the exclusive property of the person who brought it in. It would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the joint venture of the business of partnership. The person who brought it in would, therefore, not be able to claim or exercise any exclusive right over any property which he has brought in, much less over any other partnership property. He would not be able to exercise his right even to the extent of his share in the business of the partnership. As already stated his right during the subsistence of the partnership is to get his share of profits from time to time as may be agreed upon among the partners and after the dissolution of the partnership or with his retirement from partnership of the value of his share in the net partnership assets as on the date of dissolution or retirement after a deduction of liabilities and prior charges. It is true that even during the subsistence of the partnership a partner may assign his share to another. In that case, what the assignee would get would be only that which is permitted by S. 29(1), that is to say, the right to receive the share of profits of the assignor and accept the account of profits agreed to by the partners. 15. In the present case, the firm represented by the managing partner was seeking to enforce the right of the firm in respect of the premises against an outsider i.e. the revision petitioner. The question, what will happen to a case which was already instituted, can be answered in the light of S. 47 of the Indian Partnership Act, 1932 as well as Order XXX R.4 C.P.C. S. 47 of the Partnership Act permits to continue the authority of each partner to bind the firm and other mutual rights and obligations of the partners, notwithstanding the dissolution, so far as may be necessary to wind up the affairs of the firm and to complete the transaction begun but unfinished at the time of dissolution. The deed of dissolution itself would show that the old cinema had been demolished for starting the construction of the shopping mall. The deed of dissolution itself would show that the old cinema had been demolished for starting the construction of the shopping mall. Hence, we are of the view that the proceedings initiated by the respondent firm with respect to the assets shall be allowed to continue, in spite of the dissolution of the firm. 16. We have also come across the decision of the Calcutta High Court in Usha Beltron Ltd. Vs. Nand Kishore Parasramka and another, which would support our view. Also, we do not see any force in the contention that the alleged need no longer survives as the deed of dissolution itself speaks about the construction of the new shopping mall whose building materials were sought to be stored in the tenanted premises after evicting the Revision Petition. 17. It was further argued by the learned counsel for the revision petitioner that the need alleged is only temporary in nature and will not come within the meaning of S. 11(3). The need projected in the petition is that the petition schedule premises are needed for storing certain machineries and other articles of the building that is being demolished in the nearby compound and also for storing the building materials of the new multiplex theatre proposed to construct in the situs. The argument of the revision petitioner is that eviction shall not be ordered for that temporary need. S. 11(3) does not make a distinction between a temporary need and a perpetual need. However for searching the intention of the Legislature, we lean ourselves to S. 11(12) of the Act which makes it clear that when a landlord, who has obtained possession of a building in pursuance of an order under sub-s.(3) of S. 11 of the Act, does not occupy the said building without reasonable cause within one month from the date of obtaining possession or having so occupied, vacate it without reasonable cause within six months of such date, the said tenant who has been evicted may apply to the Rent Control Court for an order directing that he shall be restored to possession of the building and the court shall make an order notwithstanding anything contained in S. 4 of the Act. That means the minimum period during which a landlord is expected to be in the vacated premises is six months. That means the minimum period during which a landlord is expected to be in the vacated premises is six months. That being the case any need which persists for a period exceeding six months has to be reckoned as a 'need' contemplated by S. 11(3) of the Act. The evidence abundantly indicate that the construction will go on for more than six months. We, therefore, are of the definite view that the need alleged in the petition is not temporary in nature; and therefore we repel the contentions of the revision petitioner. 18. Now, the next question that arises for consideration is whether the prayer for eviction could be rejected under the first proviso to S. 11. The Commissioner deputed by the trial court has reported that the machineries and other articles of the demolished building are stored in a vacant place adjacent to the tenanted premises and that space, is insufficient for the purpose of storing. The revision petitioner could not establish that the respondent is having other buildings in the locality which would satisfy his requirements. 19. The learned counsel for the revision petitioner would further argue that if it is found that there is landlord-tenant relationship between the respondent firm and the revision petitioner, the revision petitioner has to be given an opportunity to avail of the benefit of the first proviso to S. 11(3) and for that purpose, the case has to be remitted back to the Rent Control Court. However, we do notice that the revision petitioner contested the case with his eyes wide open. He very well knew that the respondent firm is the successor of the original firm from which he had taken the tenanted premises on lease. It was for the revision petitioner to take all valid contentions before the Trial Court. A remand at this stage will only delay the proceedings and we are not prepared to accept such hyper technical contentions at this juncture. 20. Coming to the second proviso to S. 11(3) of the Act it is settled law that the burden is on the tenant to prove that he is entitled to the protection of both limbs of the second proviso to S. 11(3). It is in evidence that the revision petitioner is doing several other business concerns and has several other rooms of his own near the petition schedule building. It is in evidence that the revision petitioner is doing several other business concerns and has several other rooms of his own near the petition schedule building. He is conducting a glass emporium, hardware shop etc., in another building and evidently he is not mainly depending upon the income from the tenanted premises for his livelihood. Ext. C2 report reveals the availability of vacant rooms in the municipal shopping complex in the same locality. On a consideration of the entire materials now placed on record, we are of the definite view that the order for eviction under S. 11(3) of the Act is justifiable and both courts below have arrived at the correct conclusion. We could not see any infirmity calling for an interference under S. 20 of the Act. 21. In the result, the Revision Petition fails and accordingly it is dismissed. When our decision was made known to the learned counsel for the revision petitioner he requested that one year time be given to the revision petitioner time to surrender the tenanted premises as he will have to find an alternate space to shift his business. This was opposed tooth and nail by the learned counsel for the respondent landlord. Taking into account all relevant circumstances, we grant to the revision petitioner time up to 31.3.2013 to give vacant possession of the tenanted premises subject to following conditions: 1. The revision petitioner shall file an Affidavit within one month from today before the Execution Court or the Rent Control Court, as the case may be, undertaking to surrender vacant possession of the tenanted premises peacefully to the respondent/ landlord on or before 31/3/2013. 2. The revision petitioner shall remit the entire arrears as on today before the execution court or the Rent Control Court as the case may be within three months from today. 3. The revision petitioner shall pay charges towards use and occupation of the building at the current rent rate from today till he gives vacant possession of the tenanted premises to the respondent. 4. The execution proceedings, if any, pending before the Execution Court shall be kept in abeyance till 31.3.2013. We make it clear that the revision petitioner will get the benefit of time as above, only if, he files the Affidavit in time, honours the undertaking contained therein and discharges the entire arrears of rent as on date.