ivil Appeal No 1347 of 1981 From the judgment and Order dated 241
1981 of the Madras High Court in CRP No 44 of 1981
BN Nayar TVSN Chaff K Srinivasan CH Badri Nath RK Gupta and Ms Sudha Srivastava for the Appel lants
UR Lalit and Ambrish Kumar for the Respondent
The Judgment of the Court was delivered by KANIA J
This is an appeal filed by Special Leave under Article 136 of the Constitution by the appellants who are the tenants against the respondent landlady
The appellants are a partnership firm and are the ten ants of premises situate at No 6 Kasi Chetty Street GT Madras
They carry on business there
The respondent filed an eviction petition being HRC No 641 of 1975 in the Court of Small Causes Madras against the appellants and one other partnership firm carrying on business in the name and style of Ms Adeshwar Glass Mart on the ground that the appellants had unlawfully and without the consent of the respondent sublet the said shop let out to the said Ms Adeshwar Glass Mart and were liable to be evicted for unlaw ful subletting under the provision of Section 102iia of the Tamil Nadu Buildings Lease and 419 Rent Control Act 1960 hereinafter referred to as the said Rent Act
Ms Adeshwar Glass Mart were also joined by the respondent herein as respondents in the eviction petition on the ground that they were unlawful sub tenants
The Trial Court held this ground established and passed a decree for eviction as sought by the respondent
The appel lants preferred an appeal against this decision to the Appellate Authority under Section 23 of the said Rent Act being the Court of Small Causes at Madras
The said appeal was numbered as HRA 156 of 1979
The Appellate Authority dismissed the said appeal upholding the finding of unlawful subletting by the appellants
The appellants then preferred a Civil Revision Petition being CRP No 44 of 1981 in the High Court of Judicature at Madras against the aforesaid decision
This Revision Petition was dismissed by the then learned Chief Justice of the Madras High Court
It is against the decision the present appeal is directed
Mr Nayar learned counsel for the appellants has urged before us that the impugned judgment must be set aside as the eviction petition was filed against the appellants firm and one other partnership firm Ms Adeshwar Glass Mart without joining any of the partners of the said firms as respondents or serving them as partners and hence the eviction petition was not maintainable at all
He placed strong reliances on the decision of this Court in Chhotelal Pyarelal the partnership firm and others vs Shikharchand In that case an eviction petition was filed by the respondent landlord against the appellant a partnership firm under clause 133iv and vii of the Central Provinces and Berar Letting of Houses and Rent Control Order 1949
The appellant raised a preliminary objection that the application against the partnership firm was not maintainable without joining its partners as re spondents
It was held by this Court that it is only by virtue of the provisions of order 30 of the Code of Civil Procedure 1908 that a firm can sue and be sued in its own name without the partners being impleaded
It was pointed out by Mr Nayar that the Code of Civil Procedure was not applicable to the proceedings under the said Rent Act either and hence the ratio laid down in the aforesaid decision was directly applicable to the case before us
In our view it is not open to Mr Nayar to raise this contention at this stage at all
This contention is not one which would have been fatal to the eviction petition
Had this contention been raised in the Trial Court or even in the first Appel late Court it would have been open to the respondent to amend the eviction petition and join the partners as re spondents
In the aforesaid decision in Chhotelal Pyarelal s case relied upon by Mr Nayar the objection to the main tainability of the 420 petition was raised at the earliest stage and was wrongly negatived by the Trial Court
In fact this Court observed as follows But we agree with the Division Bench of the High Court that this cannot by itself result in the dismissal of the application
It would be merely a case of misdescription of the respondents to the application and this misde scription can be corrected at any stage of the proceedings
There can be no doubt that the partners of the firm are before the Court though in a wrong name In the case before us no such objection has been raised at all till the stage of Special Leave and it is surely not open to the appellants to raise such an objection at a very late stage and thereby delay matters for a number of years
This contention must therefore be negatived
It was next submitted by Mr Nayar that there was no evidence in the case to come to the conclusion that the appellants had sublet the shop to Ms Adeshwar Glass Mart
In our view there is no substance in this contention
There is evidence to show that Ms Adeshwar Glass Mart was carry ing on business at the said premises and that firm was carried on business in the said premises even for some time during which the appellants firm had ceased to carry on the business there
Moreover although a notice was given by the respondent to the appellants and Ms Adeshwar Glass Mart to produce their income tax returns assessment orders as well as account books and ledgers for the relevant period these were not produced
It was surely open to the Trial Court from these circumstances to come to the conclusion that had the account books and ledgers been produced they would have shown that rent was received by the appellants from Ms Adeshwar Glass Mart which would justify the finding of subletting
In these circumstances this contention of Mr Nayar must fail
Although Mr Nayar wanted us to undertake detailed scrutiny of the evidence and to reappreciate the same we fail to see how we are called upon to do so in an appeal under Article 136 of the Constitution
In the result the appeal fails and is dismissed with costs
GN Appeal dis missed


Summary:
The landlord filed a petition for eviction of his tenant on the ground of wilful default in payment of rent and bona fide requirement under sub clauses ii  vi respectively of Clause 133 of the CP and Berar letting of Houses and Rent Control Order 1949
The landlord alleged that the rent was payable on the expiry of each month and pleaded that as the tenant paid the rent in lump sums representing the rent of several months together he had committed wilful default and was liable for eviction
The tenant contested the peti tion and pleaded that the accumulated rents were accepted by the landlord without any objection and consequently he had no occasion to assume that the landlord was aggrieved by the manner in which the rents were paid
The tenant further asserted that the rent was payable at his convenience
The Rent Controller dismissed the application of the landlord both on the ground of bona fide requirement and wilful default
The Appellate Authority the Resident Deputy Collector confirmed the order of the Rent Controller in appeal
The landlord thereafter approached the High Court under Article 227 of the Constitution
The High Court while con firming the order of the Rent Controller in so far as the ground of bona fide necessity was concerned held that the tenant was a habitual defaulter in payment of rent and was therefore liable for eviction
The tenants appellants in CA No 1953 of 1980 challenged the order of their eviction while the landlord appellant in CA No 1954 of 440 1980 challenged the order rejecting his eviction application on the ground that he failed to prove his case of bona fide requirement
Allowing Civil Appeal No 1953 of 1980 and dismissing Civil Appeal No 1954 of 1980 the Court HELD 1
The relevant provisions of the Rent Control Order require a tenant to be habitually in arrears with the rent as a condition for the grant of the permission by the authority to the landlord to determine the lease
This condition in the Rent Control Order is different from the condition in several other statutes where mere nonpayment of rent for a particular period has been provided as adequate ground for eviction of the tenant
443C 2
The crucial test to determine whether the tenant was a habitual defaulter  is the conduct of the landlord in receiving the rent offered belatedly
If he receives the same under a protest and warns the tenant to be regular in payment in the future he cannot be assumed to have agreed to a modified agreement in this regard
But if he without any objection and without letting the tenant know his thought process continues to receive rent at intervals of several months he cannot be allowed to spring a surprise on the tenant by suddenly starting a proceeding for eviction
443G H In the instant case there was no objection whatsoever raised on behalf of the landlord against the delayed pay ments
The High Court therefore was not right in reversing the concurrent finding of the two courts below
The judgment is set aside and that of the Resident Deputy Collector is restored
444B SP Deshmukh vs Shah Nihal Chand Waghajibai Gujarati  followed
Pandurang Tukaram Rajkondawar vs Salaram Madhaorao Chavan 1985 Mh
LJ 169 Shishir Hari Mahajan vs Sanara siobai Rodmal Sharma and Anr 1982 MH
LJ 908 and Nathuji Narayanrao Udapure vs Narendra Vasanjibhai Thakkar and Anr 1981 MH
LJ 446 referred to
Both the Rent Controller and the Resident Deputy Collector have on a careful consideration of all the rele vant circumstances held that the landlord has failed to prove his case of bona fide requirement
The High Court while confirming the finding has again considered the 441 materials on the record
No acceptable ground for interfer ing with the concurrent findings of the three Courts has been shown
Civil Appeal No 1954 of 1980 has therefore to be dismissed
441H 442A B