Case: M/s. Raptakos Brett &amp; Co. Ltd Vs. Ganesh Property

avoided and such a technical contention which does not advance the case of justice should be rejected. That the courts always lean in favour of curing such technical obstacles which have no bearing on the merits of the controversy between the parties. In this connection Dr. Singhvi pressed in service to two decisions of this Court. In Bansidhar Sankarlal v. Md. Ibrahim and another, AIR 1971 SC 1292 , Shah, J., speaking for the two Judge Bench held in paragraph 8 of the report that even if a suit or proceeding is instituted by a liquidator without obtaining leave of the company court as per the provisions of Section 171 of the Companies Act, 1913, which even barred the commencement of such proceedings against a company without the leave of the Court, once the leave is granted subsequently, the proceedings would be treated as not barred on the date of granting of leave. That the aforesaid observations of this Court relied on by Dr. Singhvi are quite relevant and apposite for deciding the present controversy as such an approach would avoid placing reliance on pure technicalities and would further the ends of justice by enabling the court to adjudicate the matter on merits between the parties and unnecessary proliferation of litigation will get avoided. In this connection Dr. Singhvi also invited our attention to another decision of this Court in Everest Coal Company Pvt. Ltd. v. State of Bihar and others, AIR 1977 SC 2304 , wherein Krishna Iyer, J., speaking for a two Judge Bench of this Court considered the effect of filing of a suit by a receiver appointed under Order 40 Rule 1 of the CPC without obtaining prior leave of the Court. It was held in the said decision that if such a suit was filed by a receiver and if subsequently leave was obtained it would validate the suit. Krishna Iyer, J., noted that filing of the suit without leave of the court would amount to contempt of the court and still subsequently obtained leave would cure the defect and remove the sin. In paragraph 11 of the Report it was observed that : ".......... Once amends are made by later leave being obtained, the gravamen is gone and the suit can proceed. The pity is that sometimes even such points are expanded into important questions calculated to protract Indian litigation already suffering from unhealthy longevity." Placing reliance on these decisions of this Court, it was submitted by Dr. Singhvi that the decision of this Court in 1989(3) SCC 476 (supra) requires to be reconsidered. 34. We, prima facie, find substance in what is contended by Dr. Singhvi for the respondent. It is obvious that even if the suit is filed by an unregistered partnership firm, against a third party and is treated to be incompetent as per Section 69 sub-section (2) of the Partnership Act, if pending the suit before a decree is obtained the plaintiff puts its house in order and gets itself registered the defect in the earlier filing which even though may result in treating the original suit as still born, would no longer survive if the suit is treated to be deemed to be instituted on the date on which registration is obtained. If such an approach is adopted, no real harm would be caused to either side. As rightly submitted by Dr. Singhvi that, Order 7 Rule 13 of the CPC would permit the filing of a fresh suit on the same cause of Action and if the earlier suit is permitted to be continued it would continue in the old number and the parties to the litigation would be able to get their claim adjudicated on merits earlier while on the other hand if such subsequent registration is not held to be of any avail, all that would happen is that a fresh suit can be filed immediately after such registration and then it will bear a new number of a subsequent year. That would further delay the adjudicatory process of the court as such a new suit would take years before it gets ready for trial and the parties will be further deprived of an opportunity to get their disputes adjudicated on merits at the earliest and the arrears of cases pending in the court would go on mounting. It is axiomatic to say that as a result of protracted litigation spread over tiers and tiers of court proceedings in hierarchy, the ultimate result before the highest court would leave both the parties completely frustrated and financially drained off. To borrow the analogy in an English poem with caption "death the leveller", with appropriate modifications, the situation emerging in such cases can be visualised as under : "upon final courts purple alter see how victor victim bleed". All these considerations in an appropriate case may require a re-look at the decision of the two member Bench of this Court in 1989(3) SCC 476 (supra). However, as we have noted earlier, on the facts of the present case, it is not necessary for us to express any final opinion on this question or to direct reference to a larger Bench for reconsidering the aforesaid decision. With these observations we bring down the curtains on this controversy. Point No. 2, therefore, is answered by observing that it is not necessary on the facts of the present case in the light of our decision on the first point to decide this point one way or the other. Point No. 2 is, therefore, left undecided as not surviving for consideration. Point No. 3 : 35. As a result of the aforesaid discussion, it is held that the suit as filed by the respondent was partly barred under Section 69 sub-section (2) of the Partnership Act but was partly not barred and consequently the decree passed by the Trial Court as confirmed by the High Court is held to have remained well sustained and calls for no interference in the present appeal.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We fail to appreciate how this decision can advance the case of the appellant. All that it says is that on determination of tenancy the tenant would be bound to restore the possession of the demised premises to the erstwhile landlord and if there is an express term/covenant in the lease to that effect it would apply and if there is no express covenant the law will imply an obligation to that effect of the erstwhile tenant. As we have noted in the present case there is an express covenant in the lease which also was relied upon by the plaintiff. But in the absence of such an express covenant the law would imply a statutory obligation on the part of theto deliver and restore vacant possession of demised premises to the landlord on determination of the lease. That would obviously create a legal right in favour of the landlord and corresponding legal duty and obligation on the part of theThat is precisely what is being sought to be enforced by the plaintiff by basing its right to possession also on the law of thethe facts of the present case it has to be held that there is no further locus poenetentiae given to the tenant to continue to remain in possession after the determination of lease by efflux of time on the basis of any such contrary express term in the lease. Consequently, it is the legal obligation flowing from Section 108(q) of the Act which would get squarely attracted on the facts of the present case and once this suit is also for enforcement of such a legal right under the law of the land available to the landlord it cannot be said that enforcement of such right arises out of any of the express terms of the contract which would in turn get visited by the bar of Section 69(2) of the Partnership Act. Consequently it has to be held that when paragraph 2 of the plaint in addition made a reference to right of the plaintiff to get possession under the law of the land, the plaintiff was seeking enforcement of its legal right to possession against the erstwhile lessee flowing from the provisions of Section 108(q) read with Section 111(a) of the Property Act which in turn also sought to enforce the corresponding statutory obligation of the defendant under the very same statutory provisions. So far as this part of the cause of Action is concerned it stands completely outside the sweep of Section 69(2) of the Partnership Act. The net result of this discussion is that the present suit can be said to be partly barred by Section 69(2) so far as it sought to enforce the obligation of the defendant under Clauses 14 and 17 of the contract of lease read with the relevant recitals in this connection as found in paragraph 2 of the plaint. But it was partly not barred by Section 69(2) in so far as the plaintiff based a part of its cause of Action also on the law of the land, namely, Transfer of Property Act whereunder the plaintiff had sought to enforce its statutory right under Section 108(q) read with Section 111(a) of the Property Act. Enforcement of that right had nothing to do with the earlier contract which had stood determined by efflux of time. The first point for determination, therefore, has accordingly, to be held partly in favour of the plaintiff and partly in favour of the defendant. As the decree for possession is passed on the basis of both parts of causes of Action, even if it is not supportable on the first part, it will remain well sustained on the second part of the very same cause of Action.29. In view of our conclusion on point No. 1, though the appellant partly succeeds thereon the ultimate decree for peaceful possession against the appellant would remain wellis axiomatic to say that as a result of protracted litigation spread over tiers and tiers of court proceedings in hierarchy, the ultimate result before the highest court would leave both the parties completely frustrated and financially drained off. To borrow the analogy in an English poem with caption "death the leveller", with appropriate modifications, the situation emerging in such cases can be visualised as under : "upon final courts purple alter see how victor victim bleed". All these considerations in an appropriate case may require aat the decision of the two member Bench of this Court in 1989(3) SCC 476 (supra). However, as we have noted earlier, on the facts of the present case, it is not necessary for us to express any final opinion on this question or to direct reference to a larger Bench for reconsidering the aforesaid decision. With these observations we bring down the curtains on this controversy. Point No. 2, therefore, is answered by observing that it is not necessary on the facts of the present case in the light of our decision on the first point to decide this point one way or the other. Point No. 2 is, therefore, left undecided as not surviving for consideration.As a result of the aforesaid discussion, it is held that the suit as filed by the respondent was partly barred under Section 69(2) of the Partnership Act but was partly not barred and consequently the decree passed by the Trial Court as confirmed by the High Court is held to have remained well sustained and calls for no interference in the present appeal.