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2014 DIGILAW 1368 (PNJ)

Karan Sharma v. H. S. B. Estates Private Limited

2014-09-30

BHARAT BHUSHAN PARSOON

body2014
JUDGMENT Dr. Bharat Bhushan Parsoon, J.:- Petitioner-tenant Karan Sharma is in revision petition against order dated 28.4.2014 of the Rent Controller, Chandigarh whereby his application under Order I Rule 10 CPC for impleading Smt. Neelam Kashyap as a party in the eviction petition, was dismissed. 2. A petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter mentioned as the Act) preferred by M/s H.S.B. Estates Private Limited through its Managing Director for eviction of the petitioner-tenant and another, is pending adjudication before the Rent Controller. 3. By way of an application under Order I Rule 10 (2) read with Section 151 CPC, the applicant-tenant, petitioner herein had sought to implead Smt. Neelam Kashyap on the plea that she is a partner with him in the partnership which is allegedly carrying on its business under the name & style of M/s Khayat Coffee Lounge. It is claimed that partnership between the petitioner-tenant and said Smt. Neelam Kashyap came into existence on 15.8.2008. 4. It is the case of the petitioner that though his tenancy jointly with respondent No.2 had started under respondent No.1-landlord vide lease deed dated 7.5.2008, they had entered into a partnership and has continued conducting their business but later Smt. Krishna Bansal, respondent No.2 had left the partnership whereas Smt. Neelam Kashyap was brought in as a partner with him and thus, she is a necessary party to be impleaded in the eviction petition. 5. Counsel for respondent No.1-landlord/non-applicant, however, has urged that tenancy was incepted vide lease deed dated 7.5.2008 between the respondent-landlord on the one hand and the petitioner and Smt. Krishna Bansal, respondent No.2 as joint tenants on the other hand. It is, thus, contended that since both these tenants vide lease deed dated 7.5.2008 have been joined as parties in the eviction petition, joining of Smt. Neelam Kashyap is not warranted at all. Asserting validity and legality of the impugned order, dismissal of the present petition has been sought. 6. Counsel for the parties have been heard while going through the impugned order, grounds of revision, copy of application under Order I Rule 10 CPC and its reply while appreciating other attending facts and circumstances. 7. Asserting validity and legality of the impugned order, dismissal of the present petition has been sought. 6. Counsel for the parties have been heard while going through the impugned order, grounds of revision, copy of application under Order I Rule 10 CPC and its reply while appreciating other attending facts and circumstances. 7. It is an admitted case of the parties that tenancy was incepted between respondent-landlord M/s H.S.B. Estates Private Limited on the one hand and petitioner Karan Sharma and Smt. Krishna Bansal as joint tenants on the other hand vide lease deed dated 7.5.2008. Merely because later, the two joint tenants taking premises on tenancy had entered into a partnership on 22.5.2008, does not disturb the relationship under the lease deed dated 7.5.2008. Similarly, alleged exit of Smt. Krishna Bansal from such partnership joining of Smt. Neelam Kashyap with the petitioner-tenant ipso facto does not bring any change in the terms and conditions of the lease deed dated 7.5.2008. 8. Counsel for the petitioner-tenant citing Harshavardhan Chokkani Versus Bhupendra N. Patel, 2002 AIR (Supreme Court) 1373 has urged that where premises have been let out to a tenant, who subsequently with permission of the landlord carries on business in the name of the partnership entered into by him with another person and the landlord accepts rent from the partnership firm, the firm by conduct becomes the tenant. Support has also been sought from Dass Kumar and others Versus Tilak Raj and another, [2009(3) Law Herald (P&H) 2278] : 2009(3) PLR 417 (P&H) wherein it has been held that if the tenant had taken the premises on rent in individual capacity but the landlord had been accepting rent in the name of partnership entered into by the tenant with some other person, it amounts to creation of tenancy in favour of partnership by implication. Reference in this regard has also been made to M/s Amar Nath and others Versus Smt. Mehman Wanti 1973 RCR (Rent) 607 (J&K). 9. Counsel for the respondent-landlord has urged that neither any express nor implicit consent has ever been given by the landlord and that the landlord had never accepted partnership to be its tenant. It is claimed that any contractual obligation undertaken by the petitioner-tenant in derogation of the terms and conditions of the lease deed of 7.5.2008 without the consent of the landlord, cannot be made binding on him. It is claimed that any contractual obligation undertaken by the petitioner-tenant in derogation of the terms and conditions of the lease deed of 7.5.2008 without the consent of the landlord, cannot be made binding on him. Counsel for the respondentlandlord has also relied on Shri Sai Enterprises Versus M/s Gallant Arcade Pvt. Ltd., [2013(3) Law Herald (P&H) 2552] : 2013(3) RCR (Civil) 582 (P&H) urging that the subsequent partnerships brought into existence by the petitioner-tenant are only a camouflage to avoid payment of rent to the landlord by setting up a plea of non-existence of relationship of landlord and tenant between the parties further claiming that not the individuals but the partnership firm is the tenant. 10. Short question requiring answer for decision of this petition is, as to whether the eviction petition of the landlord can be decided without impleading Smt. Neelam Kashyap as a party in terms of application under Order I Rule 10 CPC of the petitioner-tenant or not? 11. There is no denying the fact that the tenancy is governed by lease deed dated 7.5.2008 whereby the petitioner and respondent No.2 are joint tenants in the premises under respondent No.1-landlord. If these two joint tenants had entered into a partnership later and even that partnership had resulted in change by exit of respondent No.2 and by joining of Smt. Neelam Kashyap, sought to be impleaded as a party, without the consent of the landlord, it being not a privy to such contract interse between the joint tenants to enter into a partnership and later to dissolve it to join another partner by exit of an existing partner, no relationship of landlord and tenant comes into existence between the respondent-landlord and Smt. Neelam Kashyap sought to be introduced now as a party to the eviction petition. 12. In short, the eviction petition as it stands, can very well be decided without joining of Smt. Neelam Kashyap as a party therein. Observation of the Rent Controller in the impugned order in its relevant portion with approval is reproduced, as below: “The eviction order can only be passed against a tenant and in the present case Smt. Neelam Kashyap is not a tenant in the demised premises which also becomes clear from the bare perusal of the rent deed. Observation of the Rent Controller in the impugned order in its relevant portion with approval is reproduced, as below: “The eviction order can only be passed against a tenant and in the present case Smt. Neelam Kashyap is not a tenant in the demised premises which also becomes clear from the bare perusal of the rent deed. Just because she became a partner in some firm does not mean that she becomes a tenant especially when the premises were not given on rent to the firm. So if she is not a tenant then the question of arraying her as a party in the present rent petition does not arise.” x x x “In the case of partnership firms it is possible that many partners may come and go but it does not mean that each and every partner is to be impleaded as a tenant in the rent petitions. In the present case the facts are even different because the tenancy has not been created in the name of firm rather it has been created in the name of two individual persons, so in the present case the question of impleading Smt. Neelam Kashyap as a party cannot arise. The question regarding the fact that who will pay the rent is inter se between the respondents and it does not affect the rights of the petitioner.” 13. Looking the matter from yet another angle, the landlord is dominus litus and the lease deed dated 7.5.2008 was executed between the landlord on the one hand and the petitioner as also respondent No.2 as joint tenants on the other hand. The landlord has not sought any relief against Smt. Neelam Kashyap intended to be introduced as a party by the petitionertenant. 14. Keeping in view the totality of facts and circumstances, no ground is made out to interfere with the impugned order dated 28.4.2014. Affirming the same, this petition being without any merit, is dismissed. ---------0.B.S.0------------ --------------------