IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) THURSDAY, THE THIRD DAY OF MARCH TWO THOUSAND AND ELEVEN THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CIVIL REVISION PETITION No.4959 and 5127 of 2006 BETWEEN: Dr M.Shankar … PETITIONER(S) And Mohanlal Ojha and others … RESPONDENT(S) HON’BLE SRI JUSTICE N.RAVI SHAKAR CIVIL REVISION PETITION No.4959 and 5127 of 2006 COMMON ORDER: The landlord is the petitioner in these two revisions which are filed under Section 22 of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short the Act) and they can be disposed of by this common order. The premises in question is a non-residential one and there is no dispute about the landlord’s ownership of the same. A dispute is raised as to whether a partnership firm by name Mohanlal Ojha is the tenant or a proprietary concern by name Mohanlal OJha is the tenant apart from the merits in the grounds of revision. 2. To state and decide the points that were argued in these revisions the circumstances which led to the filing of the same must be noted. Henceforth for convenience I shall refer to the first respondent in the eviction petition as Mohanlal Ojha and other respondents as they are arrayed in the eviction petition. 3. Describing the first respondent Mohanlal Ojha as a proprietary concern represented by its proprietor Sri Rang Ojha as the tenant, the landlord brought the eviction petition on four grounds viz., (i) Wilful default in payment of rents falling under Section 10(2)(i), (ii) unauthorised sub-lease falling under Section 10(2)(ii), (iii) bonafide requirement falling under Section 10(3)(a)(ii) and (iv) securing alternative accommodation falling under 10(2)(v) of the Act. The second respondent viz., Govardhan was arrayed as unauthorised sub-tenant. The third respondent Ramesh Chand Ojha got impleaded in the eviction petition on his own application on the plea that the first respondent Mohanlal Ojha is a partnership firm and not a proprietary concern and that he is also a partner of the said firm and therefore a necessary party. 4. Mohanlal Ojha and the third respondent in the eviction petition filed counters. The Principal Rent Controller, Hyderabad, who tried the eviction petition by his order dated 24-06-2002 allowed the eviction petition upholding the grounds of bonafide requirement and securing alternative accommodation while rejecting the other two grounds of wilful default in payment of rents and the sub- lease. Aggrieved by the same, Mohanlal OJha and the third respondent in the eviction petition filed appeal i.e., R.A.No.249 of 2002 questioning the order of the rent controller insofar as it went against them. The landlord also filed appeal R.A.381 of 2002 questioning the order of the rent controller insofar as it went against him on the grounds of wilful default and the sub-lease. 5. The appellate authority i.e., The Addlitional Chief Judge, City Small Causes Court, Hyderabad, disposed of both the appeals by its common order dated 27.04.2006 dismissing the appeal of the landlord and allowing the appeal of Mohanlan Ojha and the third respondent and dismissing the eviction petition. The landlord filed C.R.P.No.4959 of 2006 against the order of the appellate authority allowing the Mohanlal Ojha’s appeal and he further filed the other C.R.P.No.5127 of 2006 dismissing his appeal and that is how both the C.R.Ps came to be filed by the landlord. 6. It must be now mentioned here that in its common order dated 27.04.2006 disposing of both the appeals, the appellate authority concluded that the landlord described the tenant as a proprietary concern while in fact the material on record discloses that the tenant is a partnership firm by name Mohanlal Ojha. Having given that finding, the appellate authority held that since the eviction petition was brought against a person who is not the tenant, it is liable to be dismissed on that ground alone. It then also proceeded to consider the grounds on which eviction was sought for and gave its findings negativing all of them. The details of oral and documentary evidence let in by both sides before the Rent Controller are given in the appendix of evidence at the foot of his judgment. Similarly, the details of the additional evidence let in by the Mohanlal Ojha in both the appeals are given in the appendix of evidence at the foot of the appellate authority’s judgment. 7. On the arguments addressed by the learned counsel appearing on either side the following points arise for determination in these revisions. (1) Whether the tenant in the premises in question is a partnership firm by name Mohanlal Ojha or a proprietary concern by the same name? (2) Even if the tenant is the partnership firm Mohanlal Ojha whether the description of the tenant by the landlord in the eviction petition as a proprietary concern can be held to be a mere mis- description and an irregularity not affecting the merits of the matter in the circumstances of this case? (3) Whether the findings recorded by the appellate authority on each of the grounds of eviction viz., wilful default, sub-lease, bonafide requirement and securing alternative accommodation call for interference by this Court? 8. It should be mentioned here that Section 22 of the Act which gives revisional power to this Court says that this Court can also look into in a revision about the regularity or propriety of the appellate order and pass appropriate orders. It is now well settled that the power of this Court in a revision under Section 22 of the Act is wider when compared with the power of this Court under Section 115 CPC and also Article 227 of the Constitution. Basing upon the above scope of the power under Section 22 of the Act both sides argued the matter at length on the correctness and the propriety of the findings recorded by the appellate authority raising the above points. Consequently it has become necessary to consider the whole matter on the above points. Point No.1:- 9. Smt.Manjari, the learned counsel who appeared for the landlord in these revisions pointed out that before the filing of the eviction petition, Sri Rang Ojha got issued Ex.R1 notice dated 06.11.1996 (which is not in dispute) to the landlord mentioning about non receipt of rents by him and in the said notice Sri Rang Ojha who gave evidence as R.W.1 in the trial got the concern Mohanlal Ojha described as the proprietary concern belonging to him and that therefore in the eviction petition the tenant has been described as Mohanlal Ojha as a proprietary concern and consequently the landlord cannot be faulted for this lapse. She also relied upon Section 18 and Section 24 of the Partnership Act and argued that since two of the partners namely R.W1 Sri Rang Ojha and the third respondent in the eviction petition contested it on merits the firm itself even if it is the tenant must be held to have notice of the eviction petition basing on Sections 18 and 24 of the Partnership Act and therefore the above defect can be ignored as a mere mis-description not affecting the merits of the case but this will be considered under point No.2. On the other hand, Sri Rajpurohit the learned counsel for Mohanlal Ojha argued that the landlord must be held bound by his pleadings and cannot be permitted to resile from them now and therefore the order of the appellate authority should not be interfered with. Both sides relied upon certain decisions also in support of their respective contentions and I shall refer to them in the course of this order. 10. The appellate authority rejected the contention of the landlord’s counsel based on Ex.R1 notice holding that since it was issued prior to the filing of the eviction petition the same cannot be treated as an admission and binding on the firm Mohanlal Ojha. This conclusion of the appellate authority cannot be said to be correct as by the date of Ex.R1 disputes already started between the landlord and the concern Mohanlal Ojha regarding the payment of rents. This may not be significant and as will be presently seen the ultimate conclusion of the appellate authority that the tenant is a partnership firm by name Mohanlal Ojha can be said to be correct for the following reasons. 11. It may be noted that P.W1 Dr.M.Shankar who is the landlord admittedly retired from Government service as a Professor of Forensic Medicine from Kurnool Medical College and this is evident from his Ex.A6-Retirement Order. Thus he can be said to be an educated person knowing at least the basic distinction between a partnership firm and a proprietary concern. In his chief examination itself at the end he stated that from the beginning the first respondent is a partnership firm and that he let out the premises only to the first respondent firm and that it secured alternate accommodation under Ex.A10, thereby supporting the averments in the counter of the Mohanlal Ojha that it is a partnership firm and not a proprietary concern. The appellate authority relied upon this circumstance and certain other documents including the previous eviction petition and concluded that the tenant is the partnership by name Mohanlal Ojha and that it is not a proprietary concern. There is no compelling reason to disagree with this conclusion of the appellate authority as it does not suffer from any irregularity or impropriety on evidence. Point No.1 is accordingly decided. That is not however the end of the matter and that takes me to the other points the findings on which will decide the result of these CRPs. Point No.2:- 10. Under this point it may be noted that the counter on behalf of Mohanlal Ojha was filed by R.W1 Sri Rang Ojha. In his evidence R.W1 stated that the partnership firm Mohanlal Ojha is managed by the Hindu Undivided family of Mangal chand and he himself is the kartha of the said family. In other words, it can be concluded that R.W1 is in management of the affairs of the firm Mohanlal Ojha. In the counter filed by R.W1, he has admitted that Mohanlal Ojha is the tenant but it is a firm and not his proprietary concern. After mentioning about the same the counter shows that R.W1 proceeded to deny all the grounds of eviction pleaded by the landlord and resisted the eviction petition on merits. 11. Similarly, R.W1 in his evidence also contested the eviction petition on merits. He also examined R.W2 Sukdev Vyas his former employee and R.Ws.3 to 5 viz., Nasingh Prasad, Ramdev Vyas and Sikander to prove that he has not sub-let the premises and he did not secure alternative accommodation and that the firm was still doing business in the premises in question. A perusal of the order dated 24.06.2002 of the rent controller would also show that R.W.1 did not invite the rent controller to decide the dispute relating to who is the tenant as a preliminary point and dismiss the eviction petition on the ground that the proprietary concern is not the tenant. Instead, the Rent Controller’s order would show that the matter was contested on merits relating to each and every ground of eviction pleaded by the landlord. 12. It should now be noted that the third respondent Ramesh Chand Ojha who got himself impleaded in the eviction petition also filed counter. In the said counter he specifically pleaded that the firm Mohanlal Ojha consists of three partners i.e., R.W1- Sri Rang Ojha, one Smt.Kalavathi Ojha and himself. R.W1 did not dispute this pleading of the third respondent. Thus what emerges from the above circumstances is that R.W1 as the kartha of the family partnership firm and the third respondent as a partner of the firm were already on record and R.W1 contested the matter on merits also knowing fully well about the purpose for which the eviction petition was filed though he pleaded that the proprietary concern Mohanlal Ojha is not the tenant but the partnership firm Mohanlal Ojha is the tenant. The only defect is that one Kalavathi Ojha the third partner was not impleaded to the eviction petition. Even in the grounds of appeal filed by Mohanlal Ojha i.e., in R.A.No.249 of 2002 before the appellate authority, the first respondent did not take any objection that the tenant was wrongly shown as a proprietary concern while in fact it was a partnership firm and that the eviction petition was liable to be dismissed on that ground alone but instead the grounds of appeal show that they were confined to the merits of the matter relating to the two grounds on which the eviction petition was allowed by the Rent Controller. 13. It is here that Section 24 of the Partnership Act, in my opinion, now becomes relevant and it reads as follows: 24. 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. The above provision abundantly makes it clear that where notice of any action is given to a partner who habitually acts in the business of the firm or any matter relating to its affairs, such notice operates as a notice to the firm, except in the case of a fraud on the firm committed by or with the consent of that partner. This provision is based on the rule that every partner is an agent of the firm i.e. the other partners also who constitute it. In the present case, admittedly R.W1 Sri Rang Ojha on his own account was looking after the affairs of the firm. Affairs of the firm would also include the affairs relating to the leasehold interest of the firm in a premises in which its business is run. Thus by bringing the eviction petition against R.W1 Sri Rang Ojha and having regard to the fact that the third respondent– the other partner also came on record on his own, it follows that the partnership firm pleaded by R.W1 must be held to have notice of these eviction proceedings. The non-impleadment of the third partner Kalavathi Ojha who is a lady member of the family becomes an ignorable fact in the circumstances of this case. It is not the case of the other partners that the landlord and R.W1 colluded against the firm. No plea of any fraud committed on the said firm was taken. 14. Thus what should be seen is that though in the eviction petition the tenant is described as Mohanlal Ojha as a proprietary concern of R.W1 still R.W1 being an active partner and the third respondent being one of the partners of the said firm had notice of the eviction petition and they pleaded that their firm is the tenant and contested the matter on merits and they did not choose to even mention in the grounds of appeal before the appellate authority that the tenant is a firm and therefore the eviction petition is liable to be dismissed on that ground alone. Thus despite the fact that in the eviction petition the tenant is described as a proprietary concern still it can be said that the partnership firm being the tenant must be held to have complete notice of these proceedings as contemplated under Section 24 of the Partnership Act through R.W1 who was managing its affairs. It may also be noted that according to R.W1 also the name of the firm is Mohanlal Ojha but it is described as a proprietary concern. The similarity in names would also weigh in favour of the landlord. 15. In the course of arguments a specific question was put to Sri Rajpurohit, the learned counsel appearing for the first respondent in the eviction petition as to why in the above circumstances the description of the tenant as a proprietary concern cannot be treated as a mere mis-description and as a curable irregularity or an ignorable defect as contemplated under Section 99 CPC. It may be noted here that in P.N.RAO vs. K. RADHAKRISHNAMACHARYULU[1] a full Bench consisting of five Judges of this Court laid down that the provisions of the Code of Civil Procedure would be applicable to the proceedings under the Act insofar as they are not inconsistent with the provisions of the Act and in any event the principles underlying the provisions of the CPC can be applied to the proceedings under the Act so long as they are not inconsistent with any provision of the Act. Nothing was brought to my notice to conclude that in dealing with a revision under Section 22 of the Act this Court cannot distinguish between curable irregularities in description of the parties and fatal irregularities. Now Section 99 of CPC says that no decree shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. Thus it is clear that the above principle can be applied to exercise of jurisdiction by this Court in a revision under Section 22 of the Act also. In view of this legal position Sri Rajpurohit was asked as to why in the circumstances of this case the description of the tenant as a proprietary concern cannot be treated as a mere mis-description and a curable irregularity falling within the meaning of the words error, defect or irregularity occurring in Section 99 CPC. The question whether this mere mis-description has prejudicially affected the defence of the partnership firm in the eviction proceedings is a question to be considered under point No.3. 16. Sri Rajpurohit placed reliance upon a decision of Rajasthan High Court given in SURENDRA BHATIA vs. SMT.POONAM BHATIA[2] and a decision of the Patna High Court given in TARAMANI DEVI vs. GOVINDRAM SHARMA[3]. In the first case, the principle laid down was an admission made by the defendant in written statement cannot be allowed to be retracted as it was found that it supported the case of the opposite party. In the second case, a different plea was taken in the trial. The principle laid down in both the cases is that such retraction or a different plea cannot be taken and the party should be confined to his pleadings. Sri Rajapurohit says that since the landlord described the tenant as a proprietary concern, he must be confined to the said pleading and the eviction petition should be dismissed on that ground notwithstanding the fact that Mohanlal Ojha contested the matter on merits also. 17. The above decisions are not applicable to this case. It should be noted that though the landlord described the first respondent as Mohanlal Ojha as a proprietary concern he described R.W1 as its proprietor but this R.W1 is the active partner of the tenant i.e., the partnership firm Mohanlal Ojha and he contested the matter on merits also and these aspects have already been set out supra. Thus it can be said that this is a case of a mere mis-description of the tenant as even in his evidence the landlord stated that the tenant is a firm and R.W1 also contested the eviction petition as representing the firm even on merits. Hence the above contention of Sri Rajpurohit cannot be accepted as in this case the question of taking any different pleas in the trial has not arisen except the above said mere mis-description. 18. Smt Manjari relied upon a decision of this Court given in S.VENKATA SUBBA RAO vs. P.V.V. JAGANNADHA RAO[4] in support of her contention that since two of the partners were already on record in the eviction petition that must be treated as giving notice to the partnership firm even if it is the tenant. In this case also only one of the partners of a firm was shown as tenant in the eviction petition. The defence taken was that the partnership firm was the tenant and therefore the eviction petition is not maintainable as the other partners were not impleaded. After discussing the matter at length this Court held that since the partner against whom eviction petition was filed is to be treated as an agent of the firm and the matter was contested by him on merits the eviction petition cannot be rejected as the firm must be held to have notice of the proceedings through that partner. In the present case R.W1 was admittedly the active partner of the first respondent/tenant even assuming that tenant is the firm and the third respondent in the eviction petition is also a partner and R.W1 contested the matter on merits even showing that the landlord used to come to the business premises of the firm and collect the rents earlier. That being the case and in the circumstances of the case which are already mentioned supra I am of the opinion that the description of the tenant as Mohanlal Ojha as a proprietary concern though the tenant is Mohanlal Ojha a partnership firm both of which go by the same name the description of the tenant as a proprietary concern can be treated as a mere mis-description. 19. It has now to be seen whether the above mis-description has resulted in any prejudice to the defence of the partnership firm and if it has caused the prejudice then this mis-description should be held to be fatal and otherwise not. This point is accordingly decided. The merits in the eviction petition relate to the question whether the four grounds of eviction pleaded by the landlord can be accepted or not and these are the grounds again raised in both these CRPs by the landlord as he lost before the appellate authority on all grounds. The said grounds and the prejudice factor will be dealt with under point No.3. Point No.3:- 20. The first ground is wilful default in payment of rents. The admitted rent is Rs.900/- per month. The plea of the landlord under this ground is that the rents are to be paid every month according to the Telugu calendar and that the tenant committed default in payment of rents for five months prior to the date of the eviction petition. The Telugu calendar months are mentioned in Para-3 of the eviction petition and corresponding English months/periods are given as 17.06.1996 to 15.07.1996, 16.07.1996 to 14.08.1996, 15.08.1996 to 12.09.1996, 13.09.1996 to 12.10.1996 and 13.10.1996 to 11.11.1996. 21. It should be noted here that R.W1 in his Ex.R1 notice dated 06.11.1996 which he sent to the landlord clearly mentioned that he paid rent upto July 1996 and personally tendered the rent for the months of August and September 1996 but since the landlord refused he sent the same by money orders. The said notice reads that R.W1 also called upon the landlord to furnish his bank account to deposit the rents and it appears that he was waiting to take further action depending upon the reply. The evidence of landlord as P.W1 does not show what reply he gave to Ex.R1 notice but he presented the eviction petition in the Rent Controller’s Court on 18.11.1996 i.e. 12 days after 06.11.1996 which is the date of Ex.R1. 22. The landlord’s evidence shows that subsequently he received the rents. The landlord could not show any circumstance to hold that R.W1 as the person representing the firm refused to deliberately pay rents and he filed the eviction petition just about 12 days after receiving Ex.R1 notice. In the above circumstances it can be said that the ground of wilful default in payment of rents taken by the landlord must be rejected. Whatever may be the dispute between the parties regarding the question whether the rents are to