Filing of petition for eviction by partner in individual capacity.

The landlords are the petitioners before me. The petitioners filed an application under section 10 (3) and section 10 (2) (ii) (a) of the Madras Buildings (Lease and Rent Control) Act against the respondent and another on the ground that they required the premises bona fide for their own use, occupation and business, and that the respondent, without the consent of the petitioners, sub-let a portion of the premises to one Dhandapani &38; Company who was also impleaded in the lower Courts. Before me, however, the question whether the respondent has sub-let the premises has not been agitated and even the alleged sub-tenant has not been impleaded as a party to this petition. The respondent’s contention was that the petition is misconceived and denied that the petitioners are partners of the firm of “ Saleh Brothers” which pleading was evoked because of the allegation in paragraph 5 of the petition that “ the petitioners are carrying on the business under the name and style of” Saleh Brothers at No. 6, Sembudoss Street. “ The respondent also contended that the premises in question is not suitable to the hardware business admittedly carried on by the petitioners in Sembudoss Street. Incidentally the respondent also pleaded that the petitioners’ requirement was not bona fide because they demanded a higher rent. One of the petitioners examined himself. He admitted in chief-examination that the rent for the suit premises goes into the account of Saleh Brothers of which the petitioners are partners and that all the petitioners shared the profits. He also said in cross-examination that it is a registered partnership, but added that only two names of the petitioners are found in the certificate of registration issued by the Registrar of Firms and the names of petitioners 3 and 4 are not to be found in the said certificate. Several exhibits were filed amongst which Exhibit. P-4 (a) is an extract from the Day Book of the firm of Saleh Brothers showing that petitioners 3 and 4 also participated in the profits. No doubt, the sale deed pertaining to the suit property is in favour of all the four petitioners., When the case came up for hearing on 6th December, 1963, before the Rent Controller, he allowed the petition. It does not appear from the record that the objection which is now pressed into service vehemently by the learned Counsel for the respondent, namely, that Saleh Brothers of which the petitioners purport to be partners, is not a registered firm of partnership and therefore the proceeding instituted by them under the Madras Buildings (Lease and Rent Control) Act for eviction being” a legal proceeding “, cannot be so instituted by an unregistered partnership, was not seriously raised.

In the appellate Court, an application for stay of execution of the order of the Rent Controller was filed. In the affidavit in support thereof, the respondent raised the contention that the petitioners have admitted that they are carrying on business in partnership, and the partnership not being registered, the petition is not sustainable under section 69 (3) of the Indian Partnership Act. To this a counter-affidavit was filed by one of the petitioners wherein also there is an admission that all the four petitioners are interested in the business as such partners. In paragraph 5 of the counter-affidavit filed by one of the petitioners, Saifuddin Hoosainibhoy on 28th January, 1964 stated” As will be seen from the petition, the application has been filed by all the four partners who are the landlords. “ The appellate authority, by its order dated 12th March, 1964 called for findings on the following points:

” 1. Are all the petitioners the partners in the firm of Saleh Brothers?

2. Is a single petition against two different tenants maintainable?

3. Is the premises occupied by the first respondent in the petition suitable for the business of the landlord?

4. Do the landlords own other buildings in the City of Madras?“

Fresh evidence was again let in on