Harish Chawla vs Rakhi Jain & Ors.
2009 Latest Caselaw 461 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI


                                             Date of Reserve: January 30, 2008
                                               Date of Order: February 09, 2009

+ CRP 67/2007
%                                                              09.02.2009
     Harish Chawla                                     ...Petitioner
     Through: Mr. S.N. Kumar, Sr. Advocate with Mr. K.B. Soni, Advocates

       Versus

       Rakhi Jain & Ors.                            ...Respondents
       Through: Mr. D.K. Garg with Mr. Manzoor Ali Khan, Advocates


       JUSTICE SHIV NARAYAN DHINGRA

1.     Whether reporters of local papers may be allowed to see the judgment?

2.     To be referred to the reporter or not?

3.     Whether judgment should be reported in Digest?


       JUDGMENT

1. This revision petition has been preferred by the petitioner assailing the

order dated 25th January 2007 passed by learned Additional District Judge,

Delhi whereby an application of the plaintiffs (respondents herein) under

Order 39 Rule 10 of CPC was allowed and defendant No.1 (petitioner herein)

was directed to deposit the arrears of rent @ of Rs.1,71,550/- per annum from

February 2000 onwards till date within two months of the order.

2. It is an undisputed fact that the premises in question was let out by M/s

Krishna Roller Flour Mills to Mr. S.M. Aggarwal and Mr. Harish Chawla vide

lease deed dated 27th April 1978 on an annual rent of Rs.2.35 lac. Mr. Harish

Chawla (petitioner herein) filed a suit before this Court being Suit No.335 of

1996 and he made an application that Mr. S.M. Aggarwal be relieved from the

responsibility and obligations of the lease deed and this Court allowed

CRP 67/2007 Harish Chawla V Rakhi Jain & Ors. Page 1 Of 4 application of Mr. Harish Chawla vide order dated 11th April 1979 and relieved

Mr. S.M. Aggarwal of all responsibility and obligations of the lease deed dated

27th April 1978. Hence Mr. Harish Chawla became the sole person responsible

under the lease deed and this order has become final.

3. The contention of the petitioner is that the trial court wrongly came to

conclusion that Mr. Harish Chawla was the person responsible to pay rent

under the lease deed. It is also contended that the lease deed was executed

by a partnership firm but the suit before the trial court has been filed by Lrs

of the partners and the suit was not maintainable.

4. It would not be appropriate for this Court at this stage to devolve upon

the issue of maintainability of suit. Suffice it to say that all the partners of the

erstwhile partnership firm which gave the premises on lease to the petitioner

and Mr. S.M. Aggarwal, have died. The partnership firm thus came to an end.

The property of the partnership firm that had to devolve upon and go to

different partners, all partners having died, had to go to Lrs. The lessee is

obliged to pay rent of the property to the owners. In the event the lessee had

a doubt as to who was the right person to whom the rent was to be paid, it

was obligatory upon the lessee to file an interpleader suit in the court

pleading therein that since the partners of firm have died to whom the rent

should be paid by him. When the petitioner/lessee had not taken any such

steps of filing an interpleader suit, the lessee cannot turn around and say that

he is not liable to pay rent to the legal heirs of the erstwhile partners and

usurp the property to himself. The entire effort of the lessee (petitioner

herein) seems to be to usurp the property to himself and that seems to be

reason of the lessee having taken the plea of getting the ownership by way of

CRP 67/2007 Harish Chawla V Rakhi Jain & Ors. Page 2 Of 4 adverse possession. The trial court had rightly dismissed this plea of the

lessee/petitioner becoming the owner by way of adverse possession. The

petitioner was a tenant under the lease deed. He continued to be a tenant.

Initially the partnership firm being owner had rights as a lessor and after

death of the partners, the Lrs of the partners have a right to inherit the

ownership as well as right to claim rent from the lessee. The question of

petitioner's being in adverse possession does not arise. It is an undisputed

fact that the partners of the erstwhile firm who leased out the property have

died.

5. The other contention of the petitioner is that another partnership firm

was constituted in the same name and now the Lrs of the erstwhile partners

had no right to file the suit or claim rent. In my view, this argument of the

counsel for the petitioner must fail. The partnership firm in itself is not a legal

entity. A partnership firm is known by its partners. A partnership firm is only a

business entity and can sue only through its partners. A partnership firm gets

dissolved on account of death of a partner, unless there is a provision in the

partnership deed of inducting new partners on death of one of the partners. If

a new firm is constituted after death of all the partners, new firm is a different

entity to be known by its own partners. Merely having the same name would

not make the two partnership firm as the same entity. Counsel for the

petitioner relied upon AIR 1986 SC 368 Sunil Siddharthbai v. Commissioner of

Income Tax, Ahmedabad, Gurajat and argued that qua the assets, there is a

shared interest during the subsistence of the partnership and the value of the

interest of each partners qua that assets cannot be isolated or carved out

from the value of the partner's interest in the totality of the partnership

assets. I think, this reliance by the petitioner on the judgment is misplaced. It

CRP 67/2007 Harish Chawla V Rakhi Jain & Ors. Page 3 Of 4 is not the case of the continuation of the partnership firm. The partnership

firm is not in existence after death of its partners and the Lrs of the deceased

partners have ascertained rights qua the assets falling in share of each of the

deceased/partners.

6. The other contention of the petitioner counsel is that the petitioner has

purchased 27% shares in the property from the co-owners. This aspect has

been discussed by the trial court and the trial court has not asked the

petitioner to deposit the entire rent of Rs.2.35 lac per annum. The order

passed by the learned trial court is qua rest of the shares which falls to other

owners.

7. In view of foregoing facts, I find no infirmity in the order. This petition is

a frivolous petition and is hereby dismissed with cost of Rs.50,000/-. The cost

shall be recovered by the trial court from the petitioner by execution, if it is

not paid by the petitioner.

February 09, 2009                            SHIV NARAYAN DHINGRA J.
rd




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