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S.K. Gangele, J.
Babulal Birla (d) through LRs v. Ram Prakash Sharma
Second Appeal No. 285 of 2005 (Gwalior) : against the judgment and
decree of VIII Additional District Judge, Gwalior, passed in
Civil Appeal No.40A of 2004; Decided on 5.9.2008.
Whether the suit filed by the plaintiff for ejectment against the defendants is not maintainable in view of the fact that partnership firm to whom accommodation was let is not joined as party? [Para 2
Held : It is clear that the partnership firm can be sued in the name of partnership firm or against all the partners. However, in the present case, although the tenancy was transferred in favour of the partnership firm, as held earlier, the plaintiff has not sued the partnership firm neither all the partners. Only Babulal Birla has been sued. In such circumstances, the suit was not maintainable due to non-joinder of necessary parties. AIR 1951 Nag. 448, 1996 AIHC 2297 and 1971 JLJ 6 relied on. AIR 1965 SC 1718 followed. [Para 24
(2) Civil P.C., 1908 -- O.14 R.1 and S.100 -- issue which ought to have been framed - not framed -- parties went on trial with full knowledge -- also led evidence -- no prejudice caused -- non-framing of issue is immaterial -- such point can be considered in second appeal. AIR 1956 SC 593, 2001(1) JLJ 401 (SC) and (2004)12 SCC 368 followed. 1958 JLJ 424 relied on. [Para 27
(3) Accommodation Control Act, 1961 (M.P.) -- S.2(b) and 2(i) -- landlord and tenant respectively as defined -- relationship when created -- previous tenancy came to end by efflux of time -- tenant entering into a partnership firm with his sons -- landlord accepting rent from firm -- also issuing letter of acceptance to the bank -- relationship of landlord and tenant created.
[Paras 16 & 17
(4) Transfer of Property Act, 1882 -- S.111 -- there may be an implied surrender of tenancy in favour of another tenant -- landlord may also simultaneously accept such other tenant as his tenant by acceptance of rent. AIR 1999 SC 3335, (1992)4 SCC 254, 2008(3) JLJ 151 (SC) and (2007)5 SCC 745 followed. [Paras 18 to 20
¼1½ flfoy izfdz;k lafgrk] 1908 && vk-1 fu-9 ,oa 10 rFkk vk- 30 && e-iz- LFkku fu;a=.k vf/kfu;e] 1961 && /kkjk 12 && Hkkxhnkjh QeZ esa vfHk/k`fr l`ftr && u rks QeZ dks] u mldks Hkkxhnkjksa dks gh izfroknh ds :i esa la;ksftr fd;k x;k && og csn[kyh okn esa vko‘;d i{kdkj Fks && okn pykus ;ksX; ughaA D;k oknh }kjk izfroknhx.k ds fo:) csn[kyh ds fy, Qkby fd;k x;k okn bl rF; dh n`f"V ls pykus ;ksX; ugha gS fd ftl Hkkxhnkjh QeZ dks LFkku HkkM+s ij fn;k x;k Fkk mls i{kdkj ds :i esa la;ksftr ugha fd;k x;k\ ¼iSjk 2 vf/kfu/kkZfjr % Li"V gS fd Hkkxhnkjh QeZ ds fo:) Hkkxhnkjh QeZ ds uke esa vFkok lgh Hkkxhnkjksa ds fo:) okn yk;k tk ldrk gSA rFkkfi] izLrqr ekeys esa] ;|fi vfHk/k`fr Hkkxhnkjh QeZ ds i{k esa varfjr dj nh xbZ Fkh] tSlk iwoZ esa vf/kfu/kkZfjr fd;k x;k gS] oknh Hkkxhnkjh QeZ ds fo:) okn ugha yk;k x;k gS] u mlds Hkkxhnkjksa ds fo:) gh yk;k x;k gSA dsoy ckcwyky fcM+yk ds fo:) okn yk;k x;k gSA ,slh ifjfLFkfr;ksa esa vko‘;d i{kdkjksa ds vla;kstu ds dkj.k okn pykus ;ksX; ugha gSA , vkb vkj 1951 ukx-448] 1996 , vkb ,p lh 2297 rFkk 1971 ts ,y ts 6 voyafcrA , vkb vkj 1965 ,l lh 1718 vuqlfjrA ¼iSjk 24 ¼2½ flfoy izfdz;k lafgrk] 1908 && vk-14 fu-1 rFkk /kkjk 100 && fook|d tks fojfpr fd, tkuk pkfg, Fkk && fojfpr ugha && i{kdkjksa us iw.kZ tkudkjh ds lkFk fopkj.k esa Hkkx fy;k && lk{; Hkh is‘k fd;k && izfrdwy izHkko ugha && fook|d dh fojpuk ugha fd;k tkuk rRoghu && f}rh; vihy esa ,sls fcanq ij fopkj fd;k tk ldrk gSA , vkb vkj 1956 ,l lh 593] 2001¼1½ ts ,y ts 401 ¼mPpre U;k-½ rFkk ¼2004½ 12 ,l lh lh 368 vuqlfjrA 1958 ts ,y ts 424 voyafcrA ¼iSjk 27 ¼3½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 2¼[k½ rFkk 2¼>½ && ;FkkifjHkkkr% dze‘k% Hkw&Lokeh rFkk vfHk/kkjh && laca/k dc l`ftr && iwoZrj vfHk/k`r le; chr tkus ds dkj.k lekIr && vfHk/kkjh vius iq=ksa ds lkFk Hkkxhnkjh QeZ esa izfo"V gks x;k && Hkw&Lokeh us QeZ ls HkkM+k Lohdkj fd;k && cSad dks Hkh viuh Lohd`fr dk i= tkjh fd;k && Hkw&Lokeh vkSj vfHk/kkjh dk laca/k l`ftrA ¼iSjk 16 ,oa 17 ¼4½ laifRr varj.k vf/kfu;e] 1882 && /kkjk 111 && ,d vU; vfHk/kkjh ds i{k esa vfHk/k`fr dk foof{kr vH;iZ.k gks ldrk gS && lelkef;d :i ls] Hkw&Lokeh ,sls vU; vfHk/kkjh dks HkkM+k Lohdkj dj viuk vfHk/kkjh Lohdkj dj ldrk gSA , vkb vkj 1999 ,l lh 3335] ¼1992½4 ,l lh lh 254] 2008¼3½ ts ,y ts 151 ¼mPpre U;k-½ rFkk 2007 5 ,l lh lh 745 vuqlfjrA ¼iSjk 18 ls 20
1. Defendants have filed this appeal against the judgment and decree dated 10.1.2005 passed by VIII Additional District Judge, Gwa1ior in Civil Appeal No.40-A/2004 affirming the judgment and decree dated 30.4.2004 passed by IX Civil Judge, Class I, Gwalior in Civil Suit No.62-A/2002.
2. The appeal has been admitted vide order dated 8.9.2005 for hearing on the following substantial questions of law:
"(1) Whether the suit filed by the plaintiff for ejectment against the defendants is not maintainable in view of the fact that partnership firm to whom accommodation was let is not joined as party?
(2) Whether the Courts below have erred in passing the decree under section 12(1)(f) of the M.P. Accommodation Control Act, when plaintiff has failed to prove his need to the suit accommodation objectively?
(3) Whether the finding of the Courts below about the bona fide need of the plaintiff is vitiated for non-consideration of the facts i.e. age of the plaintiff, his past experience, failure to file a suit within six years of his retirement etc. are material consideration for determining his bona fide need?"
3. During the pendency of the second appeal the respondent filed a cross-objection which has also been admitted on 19.10.2005 for hearing on the following substantial question of law:
"Whether the first appellate Court has erred in refusing to pass a decree on the ground of section 12(1)(a) when the rent is not deposited in accordance with section 13(1) and the delay is not condoned by the first appellate Court?"
4. Facts of the case are -- plaintiff, Ram Prakash Sharma filed a suit for eviction and recovery of rent against defendant, Babulal Birla. Plaintiff pleaded that he is the owner of a shop situated at Patankar Bazar, Lashkar, Gwalior. The shop was let out by his father, late Shri Matadeen Sharma on 23.6.1947 on a written rent-deed. Father of the plaintiff died on 26.6.1971. After death of the father defendant, Babulal Birla became tenant of the plaintiff and the tenancy is oral. It had been agreed between the parties to pay monthly rent of Rs.125/- per month. The defendant did not pay rent. The shop is needed for bona fide need of the plaintiff because the plaintiff wants to start business of restaurant. He had sufficient fund for the aforesaid purpose. The defendant in the written statement admitted the fact that the shop was rented out on 23.6.1947. It has further been pleaded by the defendant that he had been paying rent regularly. The defendant denied the bona fide need of the plaintiff and stated that wife of the plaintiff had been working as Teacher at Gajra Raja Girls School, Gorkhi, Gwalior. His son, Arvind Sharma was in Air Force and younger son, after obtaining B.E. Degree, was also posted at Maruti Udyog Ltd. Gudgaon. The written statement was amended further and the defendant stated that in the year 1994 the plaintiff got possession of two times larger space in comparison to the suit shop, which is adjacent to the shop in dispute. The defendant also raised a plea that on 1.4.1976 the partnership firm of defendant came into existence and an information had been given to this effect to the plaintiff. The plaintiff agreed to transfer the tenancy of the shop in favour of the partnership firm and also received rent from the partnership firm, named as 'firm Birla Machinery Company' and issued rent-receipts in favour of the partnership firm. Inspite of this the partnership firm has not been impleaded as a party, neither partners of the firm have been impleaded as parties, hence the suit is not maintainable on the ground of non-joinder of necessary parties. In view of special pleadings and amendment in the written statement, which was allowed by the Court, the plaintiff also amended the plaint. He pleaded that no notice of existence of partnership firm had been given to him. The defendant illegally handed over possession of the suit premises to the partnership firm. There is a sub-letting on the part of the defendan
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