# MIS RAPTAKOS BRETT AND CO. LTD v. GANESH PROPERTY

- **Citation:** [1998] Supp. 1 S.C.R. 485
- **Court:** Supreme Court of India
- **Decided:** 1998-09-08
- **Bench:** S.B. Ma.Imudar, M. Jagannadha Rao
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mis-raptakos-brett-and-co-ltd-v-ganesh-property-16302
- **Pages:** 39

## Headnote

Pwtnmhip Act, 1932-Section 69(2}-Suit by partnership Jinn-Effect
of 11011 registration-Suit mu.1·1 be held to be i11compete11t from the i11ceptio11-Co11ditio11s of section 69(2) held mandat01y.
Part11ership Act, 1932-Sectio11 69(2)---Suit for possessio1t-Te11a11t
continuing in possessio11 eve11 after expiry of leas~Wliether suit filed by
unregistered Jinn legally mai11tai11able-Held, Ye~~Transfer of Property Act,
188h·s 108, 111.
A
B
c
Transfer of Property Act, 1882-Section 108( q) iw/S 111 ( a)-Lease of D
immovable property---Dete1111inatio11 by efflux of time-Rights a11d liabilities
of lessor a11d lessee.
The suit premises were rented to the appellant-defendant by a
registered lease for a period of_21 years, ending on 15-3-1985. On the expiry
of the lease period, the respondent- plaintiff, owner of suit premises, a
partnership firm, filed a suit for decree for possessio1,1 as well as damages
for illegal occupation of the premises by the appellant. The trial Court
passed a decree for possession, holding that the defendant- appellant was
E
not a tenant holdin.g over and was in unlawful possession of the premises
after the expiry of the lease period and that the suit was not barred by
F
Section 69 (2~~f the P11rtnership Act, 1932. The High Court upholding the
findings recorded by the trial Court, dismissed the appeal. Hence this
appeal.
Appellant submitted that respondent being not a registered partnership firm, and seeking to enforce a right arising out of the contract of lease
between the parties, the suit was not maintainable, it being barred under
Sec. 69(2) of the Partnership Act. The respondent contested that the suit
was not filed for enforcing any right arising from a contract which was
already at an end by effiux of time and it was based on two causes of action;
G
(i) on the covenant contained in the erstwhile contract; and (ii) on the law H
485
486
SUPREME COURT REPORTS [ 1998] SUPP. 1 S.C.R.
A of the land namely, common law as well as Sec. 111 (a) rw/S 108(q) of the
Transfer of Property Act. Pending this suit, before the decree could be
passed, respondent- plaintiff got the firm registered.
The issues raised for consideration were (i) Whether the suit filed
by the respondent-plaintiff was barred u/s 69(2) of the Partnership Act
B either wholly or in part; (ii) if the suit was so barred, whether subsequent
registration of the plaintiff firm could survive the suit.
Dismissing the appeal, this Court
C
HELD: 1.1. Section 69 (2) of the Partnership Act is a penal provision
which deprives the plaintiff of its right to get its case examined on merits
by the court and simultaneously deprives the court of its jurisdiction to
adjudicate on the merits of the controversy between the parties. It will,
therefore, have to be strictly construed. Once the bar under Section 69(2)
of the Act gets attracted, then the said provision being mandatory in
D nature would make the suit incompetent on the very threshold. For sustaining a suit which falls within the sweep of section 69(2), the condition
precedent is that the firm must be registered at the time of filing of the
suit. If it is not registered the suit must be held to be incompetent from
the inception. [512-C; D; E]
E
1.2. In the present case, the lease has come to an end and the
erstwhile tenant has remained in occupation as a tenant at sufferance.
Under law the erstwhile landlord is entitled to restoration of possession
by enforcement of statutory obligation of the erstwhile tenant as statutorily
F imposed on him u/S 108(q) rw/S lll(a) of the Transfer of Property Act.
The non-compliance of the statutory obligation by the defendant when
made subject matter of corresponding legal right of the erstwhile landlord
cannot be said to be giving rise to enforcement of any contractual right of
the plaintiff arising from the expired contract of tenancy. [513-C; D; E]
G
M.C. Clwckalingam & Ors. v. V. Manickayasagam & Ors., [1974) 1
SCC 48; R. V. Blmpal Prasad v. State of A.P., [1995) 5 SCC 69

## Text

_Characters 0–39,738 of 95,738. This is a partial read: ask again with offset=39738 for what follows._

MIS RAPTAKOS BRETT AND CO. LTD.
v.
GANESH PROPERTY
SEPTEMBER 8, 1998
[S.B. MA.IMUDAR AND M. JAGANNADHA RAO, JJ.)
Pwtnmhip Act, 1932-Section 69(2}-Suit by partnership Jinn-Effect
of 11011 registration-Suit mu.1·1 be held to be i11compete11t from the i11ceptio11-Co11ditio11s of section 69(2) held mandat01y.
Part11ership Act, 1932-Sectio11 69(2)---Suit for possessio1t-Te11a11t
continuing in possessio11 eve11 after expiry of leas~Wliether suit filed by
unregistered Jinn legally mai11tai11able-Held, Ye~~Transfer of Property Act,
188h·s 108, 111.
A
B
c
Transfer of Property Act, 1882-Section 108( q) iw/S 111 ( a)-Lease of D
immovable property---Dete1111inatio11 by efflux of time-Rights a11d liabilities
of lessor a11d lessee.
The suit premises were rented to the appellant-defendant by a
registered lease for a period of_21 years, ending on 15-3-1985. On the expiry
of the lease period, the respondent- plaintiff, owner of suit premises, a
partnership firm, filed a suit for decree for possessio1,1 as well as damages
for illegal occupation of the premises by the appellant. The trial Court
passed a decree for possession, holding that the defendant- appellant was
E
not a tenant holdin.g over and was in unlawful possession of the premises
after the expiry of the lease period and that the suit was not barred by
F
Section 69 (2~~f the P11rtnership Act, 1932. The High Court upholding the
findings recorded by the trial Court, dismissed the appeal. Hence this
appeal.
Appellant submitted that respondent being not a registered partnership firm, and seeking to enforce a right arising out of the contract of lease
between the parties, the suit was not maintainable, it being barred under
Sec. 69(2) of the Partnership Act. The respondent contested that the suit
was not filed for enforcing any right arising from a contract which was
already at an end by effiux of time and it was based on two causes of action;
G
(i) on the covenant contained in the erstwhile contract; and (ii) on the law H
485
486
SUPREME COURT REPORTS [ 1998] SUPP. 1 S.C.R.
A of the land namely, common law as well as Sec. 111 (a) rw/S 108(q) of the
Transfer of Property Act. Pending this suit, before the decree could be
passed, respondent- plaintiff got the firm registered.
The issues raised for consideration were (i) Whether the suit filed
by the respondent-plaintiff was barred u/s 69(2) of the Partnership Act
B either wholly or in part; (ii) if the suit was so barred, whether subsequent
registration of the plaintiff firm could survive the suit.
Dismissing the appeal, this Court
C
HELD: 1.1. Section 69 (2) of the Partnership Act is a penal provision
which deprives the plaintiff of its right to get its case examined on merits
by the court and simultaneously deprives the court of its jurisdiction to
adjudicate on the merits of the controversy between the parties. It will,
therefore, have to be strictly construed. Once the bar under Section 69(2)
of the Act gets attracted, then the said provision being mandatory in
D nature would make the suit incompetent on the very threshold. For sustaining a suit which falls within the sweep of section 69(2), the condition
precedent is that the firm must be registered at the time of filing of the
suit. If it is not registered the suit must be held to be incompetent from
the inception. [512-C; D; E]
E
1.2. In the present case, the lease has come to an end and the
erstwhile tenant has remained in occupation as a tenant at sufferance.
Under law the erstwhile landlord is entitled to restoration of possession
by enforcement of statutory obligation of the erstwhile tenant as statutorily
F imposed on him u/S 108(q) rw/S lll(a) of the Transfer of Property Act.
The non-compliance of the statutory obligation by the defendant when
made subject matter of corresponding legal right of the erstwhile landlord
cannot be said to be giving rise to enforcement of any contractual right of
the plaintiff arising from the expired contract of tenancy. [513-C; D; E]
G
M.C. Clwckalingam & Ors. v. V. Manickayasagam & Ors., [1974) 1
SCC 48; R. V. Blmpal Prasad v. State of A.P., [1995) 5 SCC 698; Smt Shami
Devi v. Amal Kumar Bane1jee, [1981) 2 SCC 199; Mur/idhar la/an (since
deceased) through his Lrs. v. State of Meghalaya & Ors., [1997] 5 SCC 480
andD.H. Maniar& Ors. v. Waman Laxman Kudav, [1977) 1 SCR403, relied
H on.
RAPTAKOS BRETT AND CO. LTD. v. GANESH PROPERTY]
487
1.3. The plaint as framed by the plaintiff-respondent is based on a A
composite cause of action consisting of two parts. One part refers to the
breach of the covenant on the part of the appellant when it failed to deliver
vacant possession to the respondent lessor on the expiry of the lease and
thereafter all throughout. The second part of the cause of action, however,
was based on the statutory obligation of the appellant lessee when it failed
to comply with its statutory obligation under Section 108(q) read with
Section lll(a) of the Transfer of Property Act. So far as the second part
of the cause of action is conce,rned it cannot certainly be said tha~ it is
arising out of the erstwhile contract. (513-G-H; 514-A-B]
1.4. There is a statutory obligation of the lessee on determination of
lease to put the lessor in possession of the property. There can still be a
contract between the parties at the time of entering into lease or even
thereafter that on the determination of lease the lessee will be given time
to remove his fixtures and to vacate the premises. On a conjoint reading
B
c
of the statutory scheme of Section 108 and Section 4 of the Transfer of D
Property Act and Section 1 of the Contract Act, it must be held that in
absence of such contrary legally permissible contracts, the statutory rights
and liabilities of lessors and lessees as laid down under Section 108 of the
Property Act, especially Section 108( q) in the present case would remain
fully operative by force of the statute itself. In the present case, there was
no contract to the contrary which permitted the lessee to continue in
possession after the determination of lease by effiux of time even for a day
more. 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 the 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 sub-section (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 lessor
E
F
to get possession under the Jaw of the land, the respondent was seeking
enforcement of its legal right to possession against the erstwhile lessee G
flowing from the provisions of Section 108(q) rw/S lll(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 sub-section (2) so far as it sought to enforce H
488
SUPREME COURT REPORTS (1998] SUPP. 1 S.C.R.
A the obligation of the defendant under the contract of lease. The present
suit can be said to be partly barred by section 69(2) so far as it sought to
enforce the obligation of defendant under the contract of lease. But it was
partly not barred by Section 69(2) in so ar as the plaintiff-respondent
based a part of its cause of action also on the law of land, namely, Transfer
B 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 earlier contract which
had stood determined by efflux of time. 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
C part of the very same cause of action. [517-A-H]
1.5. Even if the suit is filed by an unregistered partnership firm
against a third party and treated to be incompetent as per Section 69(2)
of the Partnership Act, if pending the suit before a decree is obtained the
D plaintiff gets itself registered, the defect in the earlier filing which even
though may result in treatiug 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. However, on the facts of the
present case, it is not necessary for this Court to express any final opinion
· E on this question or to direct reference to a larger Bench for reconsideration. [522-A-B; F-G]
, Sivjnanam Abraham & Anr. v. Mathevan Pillai, AIR (1952) (Vol. 39)
Travancore 359; Mrs. 171ayam111mal v. People's Charity Fund, Bangalore &
F Ors., AIR (1978) Karnataka 125 and Padam Singh lain v. Mis. Chandra
Bros. & Ors., AIR (1990) Pat 95, distinguished.
Mis. Goraklmath Champa/al Pandey v. Hansraj Manot, Calcutta Weekly Notes, Vol. 74 (1969-70) 269; Approved.
G
Mis. Jammu Cold Storage & General Mills Ltd. v. Mis. Khairati Lal &
Sons, AIR (1960) J&K 101; Danma/ Parshotam Dass (Finn) v. Babu Ram
Chhote Lal (Finn), (1936) AIR All 3; Dwijendra Nath Singh v. Govinda
Chandra & A11r., AIR (1953) Cal 497; C./. T., AP v. Mis. layalakshmi Rice
and Oil Mills Contractor Co., [1971] 1 SCC 280; Mis. Shriram Finance
H C01poration v. Yasin Khan & Ors., [1989) 3 SCC 476; Sunder/al & Sons v.
..
RAPTAKOS BREIT AND CO. LID. v. GANFSH PROPERTY [S.B. MAJMUDAR.J.J
489
Yagendra Nath Singh & Anr., AIR (1976) Cal 471; Jakiuddin Badruddin & A
Ors. v. Vithoba Jaga1111ath Gadali & Anr., AIR (1939) Nag 301; Nazir Ahmad
& Ors. v. Peoples Bank of Northern India Ltd., AIR29 (1942) Lah 289; Abdul
Karim v. Ramdas Naraya11das Shop, ILR (1951) Nag 31; Des Raj Prem
Chand &Anr. (Fi.mt) v. Hira Lal Kali Ram &Anr., AIR (1952) Punjab, 415;
Puran Mal Ganga Ram (Fi.mi) v. Celltral Bank of India Ltd., AIR (1953)
B
Pun. 235; Smt. Saiyada Mossarat v. Hindustan Steel Ltd., Bhilai Steel Plant
& Ors., [1989] 1SCC272; Mumbai Kamgar Sabha, Bomb. v. Mis. Abdulbhai
Faizullabhai & Ors., [1976] 3 SCC 832; Sreenivasa Ge11eral Traders & 01:~.
v. State of AP, [1983] 4 SCC 353; Bansidhar Sa11karlal v. Md. Ibrahim &
A11r., AIR (1971) SC 1292; Everest Coal Co. Pvt. Ltd. v. State of Bihar, AIR
(1977) SC 2304; Udhav Singh v. Madhav Rao Sci11dia, [1976] 2 SCR 246;
Ram Swarup Gupta (dead) by Lrs. v. Bi.shun Narai11 Inter College, [1987] 2
SCC 555; Ganga Dutt Murarka v. Kartik Chandra Das & Ors., [1961] 3 SCR
813; M.C. Chockalingam & Ors. v. V. Ma11ickayasagam & Ors., [1974] 1 SCC
48 and R. V. Bhupal Prasad v. State of A.P., [1995] 5 SCC 698, referred to.
Concise Oxford Dictionary, 7th Edition.; Foa's Ge11eral Law of
La11dlord aiid Tenallt, 8th Edn. Hill a11d Redman 011 Landlord & Tenllllt,
17th Edn. Mu/la, Tra11Sfer of Property Act, 8th Edn., referred to.
c
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4657 of
~-
E
From the Judgment and Order dated 11.8.97 of the Calcutta High
Court in F.A. No. 253 of 1992.
R.F. Nariman, Gopal Jain, R.N. Karanjawala, Ms. Nandini Gore,
Bhaskar Pradhan, Arunabh Choudhary and Ms. Manik Karanjawala for the
Appellant.
Dr. A.M. Singhvi, Jaydeep Gupta, Pradeep Sanchati and Pranab
Kumar Mullick for the Respondent. ·
The Judgment of the Court was delivered by
S.B. MAJMUDAR, J. Leave granted.
We have heard learned counsel for the parties finally in this appeal.
F
G
Hence, this appeal is being disposed of by this judgment.
H
490
SUPREME COURT REPORTS (1998) SUPP. 1 S.C.R.
A
This appeal by special leave seeks to challenge the decision
rendered by learned Single Judge of the High Court ·of Judicature at
Calcutta confirming decree for possession passed against the appellantdefendant by the learned Judge, 7th Court of City Civil at Calcutta in
Title Suit No. 1481 of 1986. In order to appreciate the grievance of the
B · appellant-defendant, it is necessary to note· ~ few relevant background
facts.
'
FACTUALMATRIX:
The respondent-plaintiff is the owner of suit premises consisting of
C ground floor of a building situated at Marquis Street, Calcutta. The said
premises were rented to the appellant -defendant on a monthly rent of Rs.
2045 by a registered lease dated 16th March, 1964. This lease was for a
period- of 21 years commencing from 16th March, 1964 and ending on 15th
March, 1985. On the expiry of the said period, the respondent-plaintiff
D alleging to be a registered partnership firm, filed the aforesaid suit praying
for a decree for possession as well as damages @ Rs. 200 per day for illegal
occupation of the premises by the appellant-defendant. The defence of the
appellant-defendant was that after the expiry of the lease period, it had
continued to be a tenant by acceptance of rent by the defendant-landlord
E and hence it had become a tenant by holding over under Section 116 of
the Transfer of Property Act, 1882 (for short 'the Property Act'). Further
defence was taken by the appellant-defendant by way of a separate application seeking dismissal of the suit under Order 7 Rule 11( d) of Code of Civil
Procedure (for short 'CPC') on the ground that the suit for possession as
F filed by the ·plaintiff-respondent, which was an unregistered partnership
firm, was not maintainable.
Learned Trial Judge, framed relevant issues on the pleadings and
came to the conclusion that the defendant-appellant was not a tenant
holding over and was in unlawful possession of the premises after the expiry
G of the lease period. On the question of maintainability of the suit, the Trial
Court held that the suit was not hit by Section 69 sub-section (2) of the
Indian Partnership Act, 1932 (for short 'the Partnership Act'). Accordingly,
a decree for possession was passed. The appellant-defendant carried the .
matter in first appeal before the High Court. As noted earlier, the learned
H · Single Judge who decided the said appeal, held against the appellant-
,...,
-
..
......
RAPTAKOS BREIT AND CO. LTD. v. GANESH PROPERTY [S.B. MAJMUDAR,J.]
491
defendant and dismissed the appeal. That is how the appellant-defendant A
is before us in the present case.
RIVAL CONTENTIONS:
Learned senior counsel, Shri R.F. Narirnan for the appellant- defendant, placed a solitary contention for our consideration. He submitted that
on a proper reading of the plaint as filed by the respondent. it has to be
held that the respondent sought to enforce a right arising out of the
contract of lease between the parties and as on the date of the suit, the
respondent was not a registered partnership firm, the suit was ex-facie not
maintainable and was required to be dismissed on this ground alone.
However, he fairly stated that on merits, as the West Bengal Rent Act does
not apply to a lease for 21 years and more and as the finding of the courts
below that the appellant was not a tenant by holding over, he cannot urge
any other contention save and except the aforesaid solitary one. In support
B
c
of his contentio'ii he also submitted that it is a fact that even though pending D
the suit the respondent plaintiffs firm got registered, the said registration
was of no avail to the respondent as the suit which was a still born one
could not be revived on account of this subsequent event. In support of
this contention Shri Narirnan placed reliance on various decisions of this
Court and High Courts to which we will make a reference at an appropriate E
stage in latter part of this judgment.
Learned senior counsel Dr. A.M. Singhvi for the respondent-plaintiff
contested the aforesaid contention and contended that only the averments
made in the plaint have to be seen on demurer for deciding whether the
suit was barred under Section 69 sub- section (2) of the Partnership Act,
that on a conjoint reading of relevant clauses of the plaint it has to be held
that the suit was not filed for enforcing any right arising from a contract
which was already at an end by efflux of time and that the suit was not
based on any of the contraetual terms. Reference to the said contract or
F
any of its clauses was purely for mentioning a historical event for supportG
ing the plaintiff's case for decision and such factual narration of past events
did not form the foundation of the plaint nor did they form part of the
. cause of action. In the alternative, it was contended by Dr. Singhvi that
even assuming that the suit could be said to have been partly based on any
of the terms of the contract so as to attract the bar of Section 69(2) of the H
492
• SUPREME COURT REPORTS (1998) SUPP. l S.C.R.
A Partnership Act, this was in fact based on two causes of action; (i) on the
covenant contained in the erstwhile contract; (ii) on the law of the land,
namely, common law as well as Section lll(a) read with Section 108(q) of
the Property Act and so far as this latter cause of action is concerned, it
cannot in any way be said to be arising out of the contract. Hence the said
B cause of action was not in any way hit by Section 69(2) of the Partnership
Act. He lastly contended without prejudice to his aforesaid contentions
that even if a view is taken that the suit as a whole was hit by Section 69(2)
of the Partnership Act, as pending this suit before the decree could be
passed, the plaintiff-respondent had put his house in order and got the firm
C registered the initial defect, if any, which made the suit dormant got cured
and consequently it could not be said that the decree passed by the Trial
Court was in any way erroneous in law. In support of his contentions, he
also invited our attention to a number of decisions of this court and various
High Courts to which we will make a reference hereafter.
D
In view of the aforesaid rival contentions, the following points arise
for our consideration :
(i)
Whether the suit filed by the respondent was barred under
Section 69 sub-section (2) of the Partnership Act either
E
wholly or in part;
(ii) If the suit was so barred, whether subsequent registration of
the plaintiffs firm under the Partnership Act could revive the
suit or to make it competent at least from the date on which
such registration pending the suit was obtained by the responF·
dent firm;
(iii) What final order?
We shall deal with these points in the same sequence in which they
G
are catalogued herein above.
Point No. 1:
In order to appreciate the rival contentions centering round this
point, it will be necessary to note the relevant provision of the Partnership
H Act. Section 69 sub-section (2) reads as under :
•<--..
'-
RAPTAKOS BREIT AND CO.LID." GANF.5H PROPERTY (S.B. MAIMUDAR, J.)
493
"69. Effect of 11011-registration -
A
(1) xxx
xxx
xxx
(2) No suit to enforce a right arising from a contract shall be
instituted in any Court by or on behalf of a firm against any
third party unless the firm is registered and the persons suing
are or have been shown in the Register of Firms as partners
in the firm".
A mere look at the aforesaid provision shows that the suit filed by an unregistered firm ag.llnst a third party for enforcement of any right arising from a
contract with such third party would be barred at its very inception. To attract
the aforesaid bar to the suit the following conditions must be satisfied:
(i)
That the pfaintiff partnership _firm on the date of the suit must
not be registered under the provisions of the Partnership Act
B
c
and consequently or even otherwise the persons suing are not D
shown in the Register of Firms as partners of the firm, on the
date of the suit.
(ii) Such unregistered firm or the partners mentioned in th~ sub-.
section must be suing the defendant third party.
(iii) Such a suit must be for enforcement of a right arising from
a contract of the firm with such a third party.
Chapter VII of the Partnership Act deals with registration of firms. As per
Section 56 thereof the State Government of any State may, by notification
E
in the Official Gazette, direct that the provisions of this Chapter shall not
F
apply to that State or to any part thereof specified in the notification. It is
not the case of any party that any such exemption has been granted so as
not to make applicable the said Chapter to the pending controversy between the parties. As per Section 57, the State Government may, by
notification, appoint a Registrar of Firms for the purpose of the Act. As G
per Section 58, the registration of a firm can be effected at any time by
sending by post or delivering to the Registrar of the area in which any place
of business of the firm is situated or proposed to be situated, for the
purpose of getting the firm registered by furnishing relevant data as required by the said Section. As per Section 59, when the· Registrar is
satisfied that provisions of Section 58 have been duly complied with, he H
494
SUPREME COURT REPORTS (1998] SUPP.1 S.C.R.
A shall record an entry of the statement in a register called the Register of
Firms, and then he has to file the statement furnished to him by the firm
concerned. It is in the light oi the aforesaid statutory provisions of Chapter
VII that the effect of non-registration has to be considered as laid down
by Section 69 in its various sub-clauses. We are concerned in the present
case only with Section 69 sub-section (2) as extracted earlier.
B
Coming back to the consideration of the requirements of Section 69
sub-section (2) under which bar to file such a suit would arise on the part
of the unregistered firm it may be noted that on the facts of the present
case it is not in dispute between the parties that when the suit was filed in
C 1986 the first condition for attracting this bar squarely got attracted namely,
that the respondent firm was not a registered firm though it was wrongly
mentioned in the plaint that it was a registered firm. Second condition for
attracting the bar was also found satisfied as the appellant was a third party
being erstwhile tenant against whom the suit was filed. It is the third
condition which is the bone of serious contention between the parties.
D Learned senior counsel Shri Nariman for the appellant submitted that the
third condition was also satisfied on the facts of the present case as the
suit filed by the respondent-plaintiff unregistered firm was for enforcement of the right of the respondent-plaintiff arising _from the contract
of lease which was entered into between the parties in 1964 for a period
of 21 years and which had expired at the end of 15th March, 1985. It is
E this contention of learned senior counsel Shri Nariman that has been
vehemently contested by learned senior counsel Dr. Singhvi for the respondent-plaintiff. At the outset he submitted that for deciding the question
whether the suit is barred under Section 69 sub-section (2) of the Partnership Act or not only averments in the plaint as a whole will have to be seen.
F In this connection, h:: rightly invited our attention to Order VII Rule 11
Clause ( d) of the CPC which reads as under :
.
"ORDER VII : xxx xxx xxx
11. Rejection of plaint - The plaint shall be rejected in the following
G
cases:
(a) xxx
xxx
xxx
(b) xxx
xxx
xxx
H
(c) xxx
xxx
xxx
....
-
.. ·
>-
RAPTAKOS BREIT AND CO. LTD. v. GANESH PROPERTY [S.B. MAJMUDAR,J.)
495
( d) where the suit appears from the statement in the plaint to be A
barred by any law" :
We have, therefore, to see the averments m the plaint for deciding
whether on the averments in the plaint, the suit can be said to have been
barred under Section 69 sub-section (2) of the Partnership Act as that
is the only bar which is relied upon by the learned senior. counsel for
the appellant for non-suiting the plaint. The plaint in the present case
is a very short one consisting of five paragraphs. It would, therefore, be
appropriate to reproduce these paragraphs. They are as under :
B
"l. The defendant was a Lessee under the plaintiff in respect C
of ground floor of the main building (except the staircase and common spaces) as premises No. 6, Marquis
Street, Calcutta, butted and bounded as given in the
schedule hereunder at a monthly rent of Rs. 2045 payable
according to English Calendar month for a term of twenty D
one years commencing from 16th March,1964 and ending
on 15th March, 1985 under a Registered Lease dated 16th
March, 1964.
2.
The said lease dated 16th March, 1964 in respect of the
suit-premises terminated by efflux of time on the expiry of E
15th March, 1985 but the defendant has failed and neglected
· to quit, vacate and deliver up peaceful possession of suit
premises to the plaintiff as required under the covenant of
the said lease and law of land.
F
3.
The plaintiff in this suit seeks to recover from the defendant
khas possession of the suit premises which the defendant has
failed to vacate and is in wrongful occupation thereof. The
plaintiff also claims and seeks to recover mesne profits or
damages @ Rs. 200 per day or at such rate as the learned
Court may determine, from 16th March, 1985 till recovery of G
khas possession.
4.
The cause of action for this suit arose at 6, Marquis Street,
Calcutta, P.S. Taltola, within the jurisdiction of this Court on
the expiry of 15th day of March, 1985 and subsequently.
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SUPREME COURT REPORTS [1998J SUPP. 1 S.C.R.
A
5.
For the purpose of jurisdiction and court fee the value of the
suit has been assessed at Rs. 25,540 (monthly rent Rs. 2045.00
x 12) for recovery of possession and tentatively valued at Rs.
10.00 for recovery of mesne profit or damages. The plaintiff
undertakes to pay further court fee as may be assessed."
B Based on these averments, the plaintiff has prayed for decree for khas
possession and mesne profits @ Rs. 200 per day or at such rate as the
Court may determine from 16th March, 1985 till recovery of khas possession. Our attention was invited by learned senior counsel for the parties on
the moot question as to how the averments in the plaint have to be
C construed. Shri Nariman invited our attention tO a decision of this Court
in Udhav Singh v. Madhav Rao Sci11dia, [1976] 2 SCR 246. In the ~aid report
at page 254, Sarkaria, J, speaking for the Court made the following pertinent observations :
D
E
F
G
"We are afraid, this ingenious method of construction after compartmentalisation, dissection, segregation and inversion of the langtlage of the paragraph, suggested by Counsel, runs counter to the
cardinal cannon of interpretation, according to which, a pleading
has to be read as a whole to ascertain its true import. It is not
permissible to call out a sentence or a passage and to read it out
of the context, in isolation. Although it is the substance and not
merely the form that has to be looked into, the pleading has to be
construed as it stands without addition or substraction of words,
or change of its apparent grammatical sense. The intention of the
party concerned is to be gathered, primarily, from the tenor and
terms of his pleading taken as a whole."
On the other hand, Dr. Singhvi for the respondent, invited our attention to
a decision of this Court in Ram Saro.p Gupta (Dead) by Lrs. v. Bishu11
Narain Inter College & Ors., [1987] 2 SCC 555 at page 562, wherein it is
observed that.
" .. ; .. The pleadings however should receive a liberal construction;
no pedantic approach should be adopted to defeat justice on
hair-splitting technicalities .... "
Keeping in view this settled legal position, let us see what has the plaintiff
H, alleged in the suit as the basis of its cause of action. This can be culled out
RAPTAKOS BREIT AND CO. LID. v. GANESH PROPERTY [S.B. MAJMUDAR,J.]
497
on a conjoint reading of all the aforesaid paragraphs of the plaint. So far A
as the first paragraph is concerned, it is obvious that the plaintiff has relied
on background facts for introducing its case against the defendant. It has
traced the history of the relations between the parties and has tried to show
how the defendant came to occupy the suit premises. Reference to
registered lease of 16th March, 1964 in the first paragraph, therefore,
cannot be said to be the foundation of the right to sue as tried to be got
enforced by the plaintiff through the machinery of the court. It is not
possible to agree with the contention of the learned senior counsel Shri
Nariman for the appellant that the first paragraph shows the foundation of
the right of the plaintiff for evicting the defendant. It is obvious that unless
B
c
the history of the relationship of the parties is traced the plaintiff cannot
show how the defendant has continued to remain in posstssion after the
expiry of the lease period. However, the subsequent paragraphs 2 to 5 have
been relied upon by the counsel for both the parties for supporting their
respective cases and, therefore, they require a closer scrutiny. So far as the
second paragraph is concerned, it is clearly stated that despite the efflux D
of time permitting the lease, the defendant had failed to evict and deliver
actual possession of the suit premises to the plaintiff on expiry of 15th
March, 1985. It is also obvious that this averment is based on and expressly
refers to the covenant in the lease which required the defendant on expiry
of the lease to deliver vacant and peaceful possession to the plaintiff. So
far as the said covenant is concerned, when we turn to the lease deed we
find mentioned therein at Clause 11, the following material recitals :
"11. That the lessees shall quit and deliver peaceful and vacant
possession of the said demised premises to the lessors or their
agents on the. expiry of the tenure of this lease and/or sooner
determination thereof for any reason whatsoever."
Similar recitals are found in Clause 14 of the lease deed which reads as
under:
E
F
"That on the expiry of the period of the terms of herein mentioned G
and/or sooner determination thereof for any reason whatsoever the
lessee shall peacefully and quietly quit, yield and deliver vacant
possession of the said demised premises to the lessors of their
nominees anci agents in good order, condition and tenantable
repair with usual wear and tear and damages caused by other H
A
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SUPREME COURT REPORTS (1998] SUPP. 1 S.C.R.
causes as mentioned in Item No. 6, above excepted."
A conjoint reading of these clauses in the lease deed with the averments
in paragraph 2 of the plaint, therefore, clearly indicate that the plaintiff
had sought to enforce through court, amongst others its right to get
B restoration of the peaceful possession of the suit premises from the defendant arising from the alleged breach of these relevant covenants on the part
of the defendant on the expiry of the lease period. If the averments in
paragraph 2 had rested at this stage, Shri Nariman would have been
perfectly justified in submitting that the plaintiff was trying to enforce solely
its right arising out of the erstwhile contract. However, the very same
C paragraph proceeds further and states in the last line thereof that the
defendant had not vacated the premises under the law of the land. This
raises the moot question whether the plaint as framed is based on two
causes of action or only on one solitary cause of action as submitted by
Shri Nariman, learned senior counsel for the appellant-defendant. Dr.
D Singhvi, learned senior counsel for the plaintiff at the outset submitted that
the recitals in paragraph 2 regarding the covenants was by way of a
historical fact and the suit is purely based on the law of the land, namely,
the Common Law as well as Section 108(q) read with Section lll(a) of the
Property Act. While Shri Nariman for the appellant took an entirely
opposite stand by submitting that these very recitals in paragraph 2 show
E that the suit as based solely on the right arising from the a11eged breach of
covenant by defendant and the reference to law of the land is by way of
abundant caution. As we shall see hereinafter, neither of these extreme
covenants can be countenanced. Turning to paragraph 3, it is no doubt true
as submitted by Dr. Singh vi for the respondent that the plaintiff has clearly
F stated that it is seeking to recover possession from the defendant as the
defendant failed to vacate and is in wrongful occupation of the premises.
The words "wrongful occupation of the premises" according to Dr. Singhvi
show that the plaintiff was alleging in clear terms that the defendant was
in unauthorised occupation of the premises after the termination of the
G contract. Placing reliance on a number of decisions of this Court it was
submitted by Dr. Singhvi that on the expiry of the period of tenancy the
erstwhile tenant in the absence of any evidence of tenancy by holding over
has to be treated as a tenant at sufferance akin to a trespasser and,
therefore, the averments in paragraph 3 of the plaint clearly show that the
suit was for enforcing the legal right arising from any law or under any
H relevant provision of the Property Act and the suit cannot . be said to be
RAPTAKOS BREIT AND CO. LTD. v. GANESH PROPERTY IS.B. MAJMUDAR, J.]
499
. based on any covenant of the erstwhile lease which was dead and gone by A
efflux of time. In this connection, strong reliance was placed by Dr. Singhvi
in the latter part of paragraph which indicated that the plaintiff was seeking
to recover mesne profits of damages @ Rs. 200 per day which had nothing
to do with the erstwhile lease rent fixed under the contract. According to
Dr. Singhvi this averment clearly indicated that the plaintiff treated the
defendant to be in unlawful possession and hence the claim for damages.
On the other h~rtd, Shri Nariman learned senior counsel for the appellant
submitted that the term "wrongful occupation" as found in paragraph 3
when read in the light of paragraph 2 would indicate that according to the
plaintiff, defendant was in breach of covenant of handing over of peaceful
possession on expiry of lease as enjoined on the defendant under the
contract of lease and that. "wrongful occupation" due to alleged breach of
contract was different from "unlawful occupation". In our view, this hyper
technical submission of Shri N ariman cannot be countenanced as there is
B
c
no real distinction between the terms "wrongful occupation" and "unlawful
occupation". Whatever is unlawful cannot be said to be rightful and would D
necessarily be wrongful. In Concise Oxford Dictionary, 7th Edition, the
term "wrongful" is defined at page 1240 as under :
"characterised by unfairness or injustice; contrary to law; (of person) not entitled to position etc. occupied;"
It is, therefore, obvious that.recitals in paragraph 3 can support the case
of the plaintiff both on the ground, if any, that the defendant had committed breach of the covenant and therefore, it was in wrongful occupation
and also equally on the ground that under law of the land, the defendant
E
was not entitled to continue in possession after the termination of the
F
. period of lease and, therefore, it was in unlawful or wrongful occupation.
The words "wrongful occupation" cannot, therefore, be inter!'lreted to mean
only 'in breach of any of the terms and conditions of the contract' and can
legitimately take in its sweep unlawful occupation after the lease expired
on efflux of time as per Section 111( a) of the Property Act read with
Section 108( q) thereof. The restricted meaning of the term 'wrongful G
occupation' as tried to be suggested by Shri Nariman cannot be accepted.
On the contrary, the claim of mesne profits @ Rs. 200 per day as found in
paragraph 3 of the plaint clearly shows that the plaintiff treated the
defendant to be in unauthorised and illegal occupation after the efflux of
time of the lease and therefore, the demand was for mesne profits at the
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SUPREME COURT REPORTS [1998] SUPP. 1 S.C.R.
A aforesaid rate per day. That had no nexus with the rental of the premises.
Turning to the cause of action paragraph 4 it is seen that it is also in
general terms and refers to the situation after the expiry of 15th March,
1985 when the lease period was over. It states that the cause of action for
recovery of possession arose within the territorial jurisdiction of the court
B from that date and such cause of action continued subsequently thereafter.
Consequently, paragraphs 3 and 4 of the plaint can be said to be equivocal
and not necessarily confined to the breach of the covenant of the lease as
mentioned in paragraph 2 of the plaint.
They can as well support th_e case of the plaintiff for possession also
C under general law of the land as recited in last lines of paragraph 2. So far
as paragraph 5 regarding the court is concerned, it is now well settled that
if the plaintiff seeks possession of the demise premises from the erstwhile
tenant, court fee payable would not be on the market value of the suit
property, but on the basis of the valuation of the premises computed on
D the basis of 12 months rent as it would not be a suit simpliciter on title
against a rank trespasser. Only in the latter type of suits that the market
value would be the valuation for the purpose of court fees.
Having seen the aforesaid relevant averments in the plaint, now it is
time for us to consider the rival contentions pressed for our consideration
E by learned senior counsel for both the parties. Shri Nariman, learned senior
counsel appearing for the appellant vehemently contended that the phrase
"arising from" or "arising out of" a contract as employed by Section 69
sub-section (2) of the Partnership Act is of wider import as compared to
the term "arising under". In support of his contention, he invited our
F attention to a decision of this court in Jagdish Chander Gupta v. Kajmia
Tradw (India) Ltd., [1964] 8 SCR 50 at page 51. In the said case, this court
was concerned with the question whether the application moved by an
unregistered partnership firm under Section 8 sub-section (2) of the Indian
Arbitration Act, 1940 for appointment of an arbitrator in the light of the
arbitration agreement between the parties was covered by Section 69
G sub-section 3 of the Indian Partnership Act. In this connection this court
observed that :
"That since the arbitration clause formed a part of the agreement
constituting the partnership it is obvious that the proceeding which
H
is before the Court is to enforce a right which arises from a
RAPTAKOS BREIT AND CO. LTD. v. GANESH PROPERTY [S.B. MAJMUDAR, J.)
501
contract. Whether one views the contract between the parties as a A
whole or one views only the arbitration clause it is impossible to
think that the right to proceed to arbitration is not one of the rights
which are founded on the agreement of the parties."
So far as the aforesaid decision is concerned, it has to be noted that when
an application is moved under Section 8 sub-section (2) of the Arbitration
Act for appointment of an arbitrator, such an application has necessarily
to be based on the arbitration clause which is a part of the main contract
between the parties. Such an application was, therefore, rightly held to be
having a direct nexus with the main contract between the parties which
covered the arbitration clause. In the facts of the present case, we fail to
appreciate how this decision can be of any assistance to Shri Nariman. In
the present suit by erstwhile landlord against the erstwhile tenant the claim
for possession by itself has nothing to do with the contract of tenancy which
had already come to an end more than a year back. For such claim there
B
c
is no question of the source of right to possession being its erstwhile D
contract which is dead and gone.