Ramesh Chand Gupta vs Pawan Kumar Jain
2017 Latest Caselaw 1819 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 2
 

 
Case :- CIVIL REVISION No. - 318 of 2012
 
Revisionist :- Ramesh Chand Gupta
 
Opposite Party :- Pawan Kumar Jain
 
Counsel for Revisionist :- Rahul Chaudhary,Arvind Kumar
 
Counsel for Opposite Party :- Harish Chandra Mishra,Narendra Mohan
 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri Arvind Kumar, learned counsel for the plaintiff/ landlord/ revisionist. No one appears on behalf of the defendant/ tenant/ respondent even in the revised call.

2. Today the case is listed peremptorily.

3. This revision has been filed challenging the order dated 26.03.2012 in S.C.C. Case No. 02 of 2002 (Ramesh Chand Gupta Vs. Pawan Kumar Jain) passed by the Additional District Judge/ Special Judge (Dacoity Affected Area), Jhansi.

4. Briefly stated facts of the present case are that the revisionist is the owner and landlord of House No. 528 (Old No. 40), Kutchehri  Crossing, Jhansi. He has given two shops of the said building on rent to the defendant/ respondent  @ Rs. 800/- per month under Rent Agreement dated 01.10.1987 effective for 11 months. The defendant/ respondent also gave Rs. 30,000/- as advance money to be returned after vacation of the shops. According to the revisionist/ landlord, the defendant/ respondent has neither paid rent after 01.08.2001 nor deposited house tax and water tax since the commencement of tenancy and as such the revisionist/ landlord sent notice dated 24.10.2001 through his counsel to the defendant/ respondent terminating the tenancy and demanded arrears of rent. The notice was received by the defendant/ respondent on 29.10.2001. However, the defendant/ respondent neither replied the notice nor paid the amount as asked under the aforesaid notice. Consequently, the revisionist/ landlord filed S.C.C. Case No. 02 of 2002 for eviction and recovery of rent and damages. During the pendency of the aforesaid case, the brother of the defendant/ respondent i.e. Sri Kamal Kumar Jain filed an impleadment application which was rejected. Subsequently, the wife of Kamal Kumar Jain namely Smt. Sushma Jain also filed an impleadment application which was also rejected by the court below vide order dated 29.10.2005. Aggrieved with that order, the aforesaid Smt. Sushma Jain filed Civil Revision No. 38 of 2006 which was dismissed by this Court with cost of Rs. 5,000/- by order dated 25.08.2010. In that order, this Court upheld the findings of the court below that the shop in question was taken on rent by Sri Pawan Jain in his personal capacity and not for the Firm M/s. Shivaji Machinery Stores.

5. In his written statement, the defendant/ respondent admitted the fact of service of notice but he took the stand that he has already vacated the tenanted shop on 31.03.1995 and handed over the possession of the shop to the revisionist/ landlord.

6. The court below framed six issues in the said S.C.C. Case No. 02 of 2002. The issue no. 1 was as to whether the disputed shops have been vacated and possession has been given to the revisionist/ landlord on 31.03.1995 by the defendant/ respondent. On this issue, after considering the evidences, the trial court recorded a finding of fact that the disputed shops were not vacated by the defendant/ respondent on 31.03.1995 and its possession was not handed over by him to the revisionist/ plaintiff/ landlord. The issue no. 3 was as to whether the defendant/ respondent defaulted in payment of rent from 01.08.2001 and also not paid the house tax and water tax. On this issue, the court below recorded a finding of fact based on consideration of evidences that the defendant/ respondent has not paid rent of Rs. 800/- per month after 01.08.2001 and has also not paid the house tax and water tax after commencement of tenancy on 01.10.1987 which he is liable to pay. The issue nos. 2 and 4 were as to whether the notice dated 24.10.2001 was valid and whether due to non impleadment of remaining partners the suit was not maintainable. On these two issues the court below has recorded the finding against the revisionist/ plaintiff/ landlord on the ground that notice to all the partners has not been given by the revisionist/ plaintiff/ landlord. Thus issue nos. 2 and 4 were decided against the revisionist/ plaintiff/ landlord while the rest of the issues were decided in his favour. As a consequence of decision on issue nos. 2 and 4 the S.C.C. case in question was dismissed by the trial court by the impugned order dated 26.03.2012. Aggrieved with this order, the revisionist/ plaintiff/ landlord has filed the present revision.

7. Submission of learned counsel for the revisionist/ plaintiff/ landlord is that the disputed shops were taken on rent by the defendant/ respondent on 01.10.1987 but he defaulted in payment of rent from 01.08.2001. He submits that the controversy on the aforesaid point stood concluded by way of order of this Court dated 25.08.2010 passed in Civil Revision No. 38 of 2006 and also by way of rejection of the application of Kamal Kumar Jain brother of defendant/ respondent. He submits that Kamal Kumar Jain as well as his wife Smt. Sushma Jain both claimed themselves to be partners and sought impleadment but their impleadment applications were rejected and even the Civil Revision No. 38 of 2006 filed by Smt. Sushma Jain was dismissed with cost of Rs. 5,000/- by this Court vide order dated 25.08.2010. Alternatively he submits that in any case, as per findings of the court below in the impugned order, the defendant/ respondent was an acting partner of the Firm M/s. Shivaji Machinery Stores who admitted the service of notice and therefore, in view of the provisions of Section 24 of the Partnership Act, the service of notice upon other partners, if any, was not needed and such notice was a valid notice.

Discussion and Findings:

8. I have carefully considered the submission of learned counsel for the revisionist/ landlord and perused the record.

9. Undisputedly, the respondent/ defendant took on rent two shops from the revisionist/ landlord/ plaintiff under rent agreement dated 01.10.1987, for 11 months w.e.f. 01.10.1987 at a monthly rent of Rs. 800/-. As per the aforesaid tenancy agreement, both the shops were newly constructed in the month of October 1986 and as such U.P. Act No. 13 of 1972 was not applicable. The revisionist/ landlord/ plaintiff gave a notice dated 22/24.10.2001 under Section 106 of the Transfer of Property Act to the respondent/ defendant on account of default in payment of rent and thereby he terminated the tenancy and asked for payment of arrears of rent and damages. The said notice was duly served upon the respondent/ defendant who replied it by its reply dated 27.11.2001. Since the disputed shops were not vacated and as such the revisionist/ landlord/ plaintiff filed S.C.C. Case No. 02 of 2002 (Ramesh Chandra Gupta Vs. Pawan Kumar Jain) in the court of Judge, Small Causes Court, Jhansi. In the written statement the respondent/ defendant admitted the tenancy but took the stand that he had vacated the disputed shops on 31.03.1995 and handed over the possession to the revisionist/ landlord/ plaintiff and as such the case deserves to be dismissed. In the aforesaid case, six issues were framed by the trial court, who, by the impugned judgment and order dated 26.03.2012 decided issue nos. 1, 3 and 5 in favour of the revisionist/ landlord/ plaintiff and decided the issue nos. 2, 4 & 6 against him. The trial court recorded a finding of fact based on consideration of relevant evidences that the disputed shops were let out to the respondent/ defendant which is being still possessed by him. The disputed shops were neither vacated by the respondent/ defendant on 31.03.1995 nor its possession was handed over to the revisionist/ plaintiff/ landlord. While deciding issue no. 3, the trial court recorded a finding of fact that the respondent/ defendant has not paid rent to the revisionist w.e.f. 01.08.2001. It also found that the provisions of U.P. Act No. 13 of 1972 were not applicable with respect to the disputed shops. However, while deciding issue nos. 2 and 4, the trial court held that since the notice terminating the tenancy and demanding arrears of rent was not given to all the parties/ partners and as such the notice under Section 106 of the Transfer of Property Act, given by the revisionist/ landlord/ plaintiff to the respondent/ defendant, was invalid. Consequently, the S.C.C. Case No. 02 of 2002 was dismissed by impugned judgment and order dated 26.03.2012.

10. During the pendency of the aforesaid S.C.C. Case No. 02 of 2002, one Sri Kamal Kumar Jain, brother of the respondent/ defendant and his wife Smt. Sushma Jain both separately filed impleadment application as partners of the firm M/s. Shivaji Machinery Stores. The applications of both the aforesaid Kamal Kumar Jain and Smt. Sushma Jain were rejected. Against the rejection order, Smt. Sushma Jain filed Civil Revision No. 38 of 2006 before this Court which was dismissed with cost of Rs. 5,000/- vide order dated 25.08.2010 as under:

"The present revision has been filed against the order dated 29th October, 2005 passed by the Special Judge (D.A.A.)/Additional District Judge, Jhansi in S.C.C. Suit No. 2 of 2002 whereby it has rejected the application no. 119 filed by the present applicant Smt. Sushma Jain W/o Shri Kamal Jain for her impleadment in the suit as one of the defendants.

The background facts may be noticed in brief:

S.C.C. Suit No. 2 of 2002 was instituted by Ramesh Chand Gupta, opposite party No. 1 herein against Pawan Jain for recovery of arrears of rent, ejectment and damages etc. on the pleas inter alia that the shop in dispute was taken on rent by Shri Pawan Jain on 1st April, 1993. He used to pay rent through cheque and paid rent upto 30th September, 2003. During pendency of the said suit, an application for impleadment was filed by Smt. Sushma Jain, the present applicant herein on the allegations that the shop in dispute was taken through Pawan Jain for the purpose of carrying on partnership business namely M/s Shivaji Machinery Store. He took the shop on rent in that capacity and therefore, she being one of the partners, is entitled to be impleaded in the suit as one of the defendants. The said application having been dismissed by the impugned order, the present revision has been preferred.

Heard learned counsel for the parties and perused the record.

The court below has found that the shop in dispute was taken on rent by Shri Pawan Jain in his personal capacity and not for the firm M/s Shivaji Machinery Stores. The other circumstance which is against the present applicant is that earlier a similar application was filed by Shri Kamal Jain, husband of the present applicant. The said application was rejected. The said order has become final.

In this view of the matter, the filing of the application for impleadment by the applicant is nothing but an abuse of the process of the court. The court below has committed no error in rejecting the said application.

I do not find any error in the order impugned under revision. The view taken by the court below is perfectly justified and calls for no interference. It appears that the application giving rise to the present revision is not bonafide one and was filed only to delay the disposal of S.C.C. Suit No. 2 of 2002. The applicant has succeeded in getting the proceedings stayed for a period of about four years.

Taking into consideration the entire facts and circumstances of the case, I do not find any merit in revision.

The revision is dismissed with the cost of Rs.5000/- which shall be payable by the applicant to the plaintiff opposite party No. 1 within a period of one month.

Since the matter is old one, the trial court is required to dispose of the S.C.C. Suit No. 2 of 2002 expeditiously, preferably within a period of six months from the date of production of the certified copy of this order."

(Emphasis supplied by me)

11. The aforequoted order has attained finality. While deciding issue nos. 1 and 3, the Trial court clearly recorded a finding of fact in paras 15 and 16 that the respondent/ defendant has neither vacated the disputed shops on 31.03.1995 nor gave its possession to the revisionist/ landlord/ plaintiff and thus on the date of notice the respondent/ defendant was tenant. The finding so recorded in para 16 is as under:

^^vr% ;g U;k;ky; ;g ikrk gS fd izfroknh }kjk fnukad 31-03-1995 dks oknxzLr nqdkukr u rks [kkyh dh x;h vkSj u mldk dCtk o n[ky oknh dks fn;k x;kA bldk izHkko ;g gS fd uksfVl fn, tkus ds fnukad dks izfroknh iz'uxr nqdku esa fdjk;snkj FkkA^^"

12. Thus, the revisionist/ landlord/ plaintiff has proved that the respondent/ defendant is a tenant of the disputed shops at the time of giving notice i.e. on 22/24.10.2001 who has not vacated the shop on 31.03.1995.

13. The court further recorded a finding of fact in para 28 of the impugned judgment regarding arrears of rent as under:

^^bl izdkj fofu'p; fcUnq 3 ldkjkRed :i ls izfroknh ds fo:) rFkk oknh ds i{k esa bl izdkj fu.khZr fd;k tkrk gS fd izfroknh us fnukad 01-08-2001 dks :0 [email protected]& izfrekg dh nj ls fdjk;s dh vnk;xh ugha dh gS vkSj fdjk;snkjh izkjEHk gksus ds fnukad vFkkZr~ 1-10-1987 ls tydj o x`gdj Hkh oknh dks vnk ugha fd;k gS ftldh vnk;xh dk og ftEesnkj gSA^^"

14. Thus, the fact that the respondent/ defendant was a tenant in the disputed shops and he defaulted in payment of rent, was well established on record. The rent agreement itself was entered by the respondent/ defendant. Consequently, the decision on issue nos. 2 and 4 holding the notice to be invalid on the ground that notice to all the partners should have been given, does not appeal to reasons and cannot be said to be justified. That apart the issue nos. 2 and 4 decided by the trial court holding that notice to all the partners was necessary, also appears to be not legally sustainable. In this regard, reference may be had to the provisions of Section 106 of the Transfer of Property Act, 1882 and Section 24 of the Partnership Act, 1932 which are reproduced below:

"[Section 106 T.P. Act, 1882 - Duration of certain leases in absence of written contract or local usage.-- (1) 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 months' 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 fifteen days' notice.

(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.

(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.

(4) Every notice under sub-section (1) 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.]

Section 24 Partnership Act, 1932 - Effect of notice to acting partner.-- Notice to a partner, who habitually acts in the business of the firm of any matter relating to the affairs of the firm operates as notice to the firm, except in the case of a fraud on the firm committed by or with the consent of that partner."

15. The provisions of Section 24 of Partnership Act, 1932 itself is wholly unambiguous. It indicates clear legislative mandate that the notice to a partner, who habitually acts in the business of the firm of any matter relating to the affairs of the firm, operates as notice to the firm, except in the case of a fraud on the firm committed by or with the consent of that partner. Perusal of the rent agreement itself shows that it was entered by the respondent/ defendant in his name.

16. Under the circumstances, even if, such an agreement is assumed for the sake of discussion to have been entered by the respondent/ defendant on behalf of the firm, still the status of the respondent/ defendant is proved to be a partner who was habitually acting in the business of the firm. The notice was undisputedly served upon the respondent/ defendant. Consequently, the notice cannot be said to be invalid.

17. Section 24 of Partnership Act, 1932 has ween well explained by Hon'ble Supreme Court in the case of Ashutosh Vs. State of Rajasthan1 as under:

10. Both the contentions raised by the learned counsel appearing for the appellant have absolutely no merit. It is not in dispute that the decree was passed against the firm in which Smt. Dhanwanti Devi was also a partner. Under the provisions of the Partnership Act, one partner is the agent of the other. The partner is always liable for partnership debt unless there is implied or express restriction. In the instant case, notice was duly served on Smt. Dhanwanti Devi and her husband at House No.80B, Block Sri Ganganagar. Sections 24 & 25 of the Indian Partnership Act, 1932 can be usefully referred to in the present context which are reproduced hereunder:

"24- Effect of notice to the acting partner.-- Notice to the partner who habitually acts in the business of the firm of any matter relating to the affairs of the firm operates as notice to the firm, except in the case of a fraud on the firm committed by or with the consent of that partner."

25. Liability of a partner for acts of the firm.-- Every partner is liable, jointly with all the other partners and also severally for all acts of the firm done while he is a partner."

11. Section 24 deals with the effect of notice to a partner. Such notice may be binding if the following conditions are satisfied:

(a) the notice must be given to a partner;

(b) the notice must be a notice of any matter relating to the affairs of the firm;

(c) fraud should not have been committed with the consent of such partner on the firm.

12. Section 24 is based on the principle that as a partner stands as an agent in relation to the firm, a notice to the agent is tantamount to the principal and vice versa. As a general rule, notice to a principal is notice to all his agents; and notice to an agent of matters connected with his agency is notice to his principal."

(Emphasis supplied by me)

18. In the case of Bhagwan Das Agarwal Vs. Bhagwan Das Kanu and others2 Hon'ble Supreme Court considered the question of availability of notice under Section 106 of Transfer of Property Act terminating the tenancy and held as under:

"3. Now, it is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quam pereat. "The validity of a notice to quit", as pointed out by Lord Justice Lindley, L.J. in Sidebotham v. Holland3, "ought not to turn on the split- ting of a straw". It must not be read in a hyper-critical manner, nor must its interpretation be affected by pedagogic pendantism or overrefined subtlety, but it must be construed in a commonsense way. See Harihar Banerji v. Ramasashi Roy4. The notice to quit in the present case must be judged for its validity in the light of this well recognised principle of interpretation"

19. Thus, in view of the provisions of Section 24 and Section 25 of the Partnership Act, 1932, one partner is the agent of the other. Section 24 of the Partnership Act, 1932 deals with the effect of notice to a partner. Such notice may be binding if the notice is given to a partner, the notice must be a notice of any matter relating to the affairs of the firm and fraud should not have been committed with the consent of such partner on the firm. The partner stands as an agent in relation to the firm, a notice to the agent is tantamounts to the principal and vice versa. Notice to a principal is notice to all his agents; and notice to an agent of matters connected with his agency is notice to his principal.

20. In view of the above discussion and also in view of the findings recorded by this Court in the order dated 25.08.2010 in Civil Revision No. 38 of 2006 and that the court below has found that shops in dispute were taken on rent by Sri Pawan Kumar Jain in his personal capacity and not in the capacity of firm M/s. Shivaji Machinery Stores, the conclusion reached by the court below on issue nos. 2, 4 and 6 cannot be sustained and is hereby set aside. Notice dated 22/24.10.2001 is held to be a valid notice. The S.C.C. Case was validly instituted by the revisionist/ landlord/ plaintiff. The issue no. 2 and 4 are answered accordingly. So far as issue no. 6 is concerned, the matter is remitted back to the concerned court below for decision afresh. The court below shall decide issue no. 6 afresh in accordance with law after giving opportunity of hearing to the parties, expeditiously, preferably within three months from the date of presentation of a certified copy of this order.

21. The revision is allowed to the extent indicated above.

Order Date :- 4.7.2017

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