In the light of the above finding, if one turns to law laid
down by the Apex Court in the case of Shama Prasad Raje v.
Ganpatrao, AIR 2000 SCW 3493, it is obligatory on the part of the
landlord to prove that the tenant has parted with possession of the
tenanted premises and such parting of possession must be backed
by for some consideration. In the instant case, it has been proved
that the possession is with defendant No. 2. The admission given
by defendant No. 1 that defendant No. 2 is his partner in the
business run under the name and style of respondent No. 3, itself
goes a long way to establish the case pleaded by the plaintiffs.
Assuming that there was partnership between defendant Nos. 1
and 2 brought into existence of on 23 September, 1976 the terms
and conditions thereof cannot be read for want of proof of
document. Assuming that the contents thereof can be read in
evidence, even then as already found, no genuine partnership
could be said to have been established. It was brought into
existence only to defeat the provisions of rent legislation. This
Court in case of Gangaram v. Ashok Kumar, 1969 Mh.L.J. Note
43 has held as under :
".....that the question whether relationship between the
petitioners amount to a partnership or not could not be
decided merely on the basis of a deed which they had
filed and the Court is entitled to examine all the incidents
of the relationship between the parties as shown by the
written agreement together with the surrounded
circumstances at the time when the contract was entered
into, conduct of the parties as well as other facts that
may be relevant, such for instance, as the right to control
the property, the manner in which the accounts of the
business are kept, the right to receive profits and the
liability to share the losses and from these deduce the
real intention of the parties. Existence of any written or
verbal agreement, between the parties, conduct of the
parties towards one another, the mode in which they
have dealt with one another, the mode in which each has
with the knowledge of the other dealt with other people,
are all Indicia which may help the Court in finding
whether partnership does or does not exist. The Court
must consider all the facts and circumstances of the
cases and draw an inference from them as a whole
without attributing undue weight to any one of them. It
will have to be found in each case whether a plea of
partnership which is put forth as a defence to an
application by the landlord under Clause 13(3)(iii) of the
Rent Control Order is intended to be a mere cloak to
cover up the use of the premises by a person other than
the tenant or whether the tenant is himself carrying on
the partnership business. Thus, the failure to produce
account books, the conduct of the tenant in not taking
part in the business which was carried on only in the
name of the stranger and the earlier conduct in subletting
the premises for a period of 5 years to another person
indicated that the document of partnership was merely a
cloak brought into being in order to defeat the
application of the landlord under Clause 13(3)(iii) of the
Rent Control Order. (Order of the Rent Control
authorities holding that the tenant had sublet the
premises upheld)."
29. Applying the tests laid down by this Court to the facts of the
present case, it has to be held that defendant No.1 has failed to establish
legal and genuine partnership between defendants No.1 and 2. Perusal
of questions and answers during the course of cross-examination of
D.W.1 as referred in paragraph 8 above also substantiates the case of
unlawful subletting by defendant No.1 in favour of defendant No.2. The
concurrent findings of fact recorded by the Courts below are based upon
appreciation of evidence on record. In the present case, the premises
and its availability for running business was the prime and basic
consideration for inducting defendant No.2 by the defendant No.1.
Partnership Deed has not been registered under the Partnership Act.
Perusal of the answer given by D.W.1 to question No.121 shows that
partners of defendant No.1 have no experience in the business of
Agarwood and perfumes. The Courts below have carefully scrutinized
the evidence in the light of law. In view thereof, I do not find that any
case is made out for invocation of powers under Section 115 of C.P.C.
Defendant No.1 was not in a position to demonstrate that the findings
recorded by the Courts below are perverse being based upon no
evidence or that they are contrary to the evidence on record.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.76 OF 2016
WITH
CIVIL APPLICATION NO.86 OF 2016
H. Vasanji & Company through Partner
Chirag Dinkar Thaker
Vs.
Chandrakumari Harnamsingh Chowhan
CORAM : R. G. KETKAR, J.
Pronounced on: OCTOBER 13, 2016
Heard Mr. Dhakephalkar, learned Senior Counsel for applicant
and Mr. Kumbhakoni, learned Senior Counsel for respondent No.1 at
length.
2. By this Application under Section 115 of the Code of Civil
Procedure, 1908 (for short 'C.P.C.'), applicant, hereinafter referred to as
'defendant No.1', has challenged the judgment and decree dated 4/5th
August 2006 passed by the learned Judge, presiding over Court Room
No.15 of the Court of Small Causes in R.A.E. Suit No.1041/1084 of
2001 as also the judgment and decree dated 09.12.2015 passed by the
Appellate Bench of the Small Causes Court in 2(a) Appeal No.562 of
2006. By these orders, the Courts below have decreed the Suit instituted
by the respondent No.1, hereinafter referred to as 'plaintiff', filed under
Section 16(1)(e) of the Maharashtra Rent Control Act, 1999 (for short
'Act') and directed the defendants to handover vacant and peaceful
possession of the shop, more particularly described in the plaint
(hereinafter referred to as 'suit premises').
3. Plaintiffs have instituted the Suit inter alia on the ground that the
defendant No.1 is the tenant in respect of the suit premises. Defendant
No.1, without the consent and permission of plaintiffs in writing, had
unlawfully sublet the suit premises to the respondent No.2, hereinafter
referred to as 'defendant No.2' thereby committing breach of the
conditions of the tenancy. The Courts below have decreed the Suit. It is
against these decisions, defendant No.1 has instituted the present Civil
Revision Application.
4. In support of this Application, Mr. Dhakephalkar strenuously
contended that the Suit was instituted by – (1) Chandrakumari
Harnamsingh Chowan and (2) Kamleshsingh Harnamsingh Chowan
against the defendants. They are the owners to the extent of 6 Anna
shares. The other co-owners have objected to filing of their Suit. In
fact, defendants have examined Ishwarsingh Gangasingh Chawhan as
D.W.2. D.W.2 has referred to various proceedings and has objected to
filing of Suit by the plaintiffs. As the co-owners have objected to filing
of the Suit by the plaintiffs as also one of the co-owners has in fact
deposed against the plaintiffs, the Courts below ought to have dismissed
the Suit on the ground of maintainability. In support of this proposition,
he relied upon the following decisions:
a. Decision of Madhya Pradesh High Court in Hafizullah Vs.
Shikhar Chand Jain, Second Appeal No.813 of 1995 decided on
12.05.1997 decided by S. C. Pandey, J.;
b. M/s.India Umbrella Manufacturing Co. Vs. Bhagabandei
Agarwalla, (2004) 3 SCC 178;
c. Sanat Kumar Mullick Vs. Octavious Tea & Industries
Limited, (2006) 2 CHN 280;
d. Hafizullah Shekh Barkatullah Vs. Puran Chand Jain,
(2014) 1 MP LJ 167; and
e. Mohinder Prasad Jain Vs. Manohar Lal Jain, (2006) 2
SCC 724.
5. Mr. Dhakephalkar submitted that the Courts below committed
serious error in decreeing the Suit on the ground of unlawful subletting
as contemplated by Section 16(1)(e) of the Act. The Courts below failed
to appreciate that plaintiffs have not established that defendant No.1 had
given exclusive possession of loft portion to the defendant No.2. He
invited my attention to paragraphs 85 to 92 of the appellate Court
judgment. In paragraph 85, the appellate Court referred to the principles
governing the ground of unlawful subletting. In paragraph 86, the
appellate Court observed that D.W.1 Dinkar admitted that he had sublet
the loft on the suit premises to the defendant No.2. It was further
observed “it is clear from the admission given by D.W.1 that he had
sublet the loft on the suit premises to the defendant No.2 without
consent and permission of plaintiffs”. He submitted that the Courts
below failed to consider that there was no separate entrance leading to
the loft. No finding is recorded by either of the Court to the effect that
there is separate entrance leading to the loft. In other words, defendant
No.1 is in control of the suit premises. The findings recorded in
paragraphs 86, 89 and 92 are based upon alleged admission of unlawful
subletting by the defendant No.1. The said findings are based on
conjectures and surmises and are contrary to the evidence on record. He
submitted that defendant No.2 is in fact sister-concern of the defendant
No.1. The Courts below have also not properly considered the
Partnership Deeds dated 16.05.1990 and 02.07.1992. The Courts below
held that the Partnership Deed dated 16.05.1990 is a camouflage
document so as to give a go-bye to the ground of unlawful subletting.
The Courts below held that the Partnership Deed dated 02.07.1992
falsifies genuineness of the partnership between defendants No.1 and 2.
6. Mr. Dhakephalkar submitted that during the pendency of the
appeal, defendant No.1 filed application exhibit-21 on 27.09.2010 under
Order 41, Rule 27 of C.P.C. for production of additional evidence. The
appellate Court rejected the application only on the ground that along
with the application, defendant No.1 had produced list of documents and
the documents, which were sought to be produced, were in fact not
produced. He has taken me through the evidence on record and
submitted that Application requires consideration.
7. On the other hand, Mr. Kumbhakoni supported the impugned
orders. He submitted that plaintiffs are the co-owners to the extent of 6
Anna shares. They are entitled to maintain the Suit regardless of
objection raised by one of the co-owners, Ishwarshing Gangasingh
Chawhan. In support of his submissions, he relied upon the following
decisions:
a. V. Prabha & Co. Pvt. Ltd. Vs. Kuljit Singh Chadha, 2007
(2) ALL MR 352;
b. M/s. India Umbrella Manufacturing Co. (supra);
c. Dhannalal Vs. Kalawatibai, AIR 2002 SC 2572;
d. Jainuddin Vs. Sitaram, 1981 Mh.L.J. 498;
e. Sri Ram Pasricha Vs. Jagannath, AIR 1976 SC 2335;
f. Dwarka Nath Mitter Vs. Tara Prosunna Roy, (1890) ILR
17 Cal 160;
g. Mokshoda Debi Vs. Prem Chand Nuskur, (1887) ILR 14
CAL 201;
8. As far as the ground of unlawful subletting as contemplated by
Section 16(1)(e) of the Act is concerned, Mr. Kumbhakoni has invited
my attention to questions No.74, 98, 99, 101, 103 to 105, 114 and 121
and the answers given by D.W.1 Dinkar H. Thakkar, which are as under:
“Q.74 Shown witness Exhibit “B” rent receipt and attention is drawn
on clause 3 therein. Have you abided this terms of tenancy?
Ans. No.
Q.98 Has Zameer Silk Emporium obtained necessary and
separate Govt. and Municipal licenses?
Ans. They obtained Shop and establishment Licence from BMC.
Q.99 Whether the Defendant No.2 partnership has been
registered?
Ans. I do not know.
Q.101 So have you recorded in writing change in nature in
business of Defendant No.2?
Ans. No.
Q.103 Shown Exhibit “C” Colly. to the witness.
Who's card they are
Ans. There are the visiting cards of Defendant No.1 and
Defendant No.2 respectively.
Q.104 Does this two bears the address of the suit premises?
Ans. Yes.
Q.105 Shown Exhibit E, photograph it is of the suit premises?
Ans. Yes.
Q.114 Do you have any permission in written for subletting the
suit premises?
Ans. I not taken any permission in written.
Q.121 Do the partners of Defendant No.1 have any experience in
the business of Agarwood and Perfumes?
Ans. No. ”
9. Mr. Kumbhakoni has taken me through the evidence on record
and the findings recorded by the Courts below. He submitted that after
appreciating the evidence on record, the Courts below have concurrently
held that defendant No.1 has unlawfully sublet mezzanine floor to the
defendant No.2. Defendant No.2 is in exclusive possession of the
mezzanine floor. He, therefore, submitted that no case is made out for
invocation of powers under Section 115 of the C.P.C.
10. I have considered the rival submissions advanced by the learned
Counsel appearing for the parties. I have also perused the material on
record. Mr. Dhakephalkar submitted that as one of the co-owners
objected to the Suit instituted by other co-owners, the Courts below
were not justified in decreeing the Suit. Courts below ought to have
dismissed the Suit. He relied upon the decisions rendered in paragraph
4.
11. In the case of Hafizullah (supra), the learned Single Judge of
Madhya Pradesh High Court referred to the decisions of the Apex Court
in - a) Smt. Kanta Goyal Vs. B. P. Pathak, AIR 1977 SC 1599, b) Sri
Ram Pasricha (supra) as also c) decision of Patna High Court in
Sharfuddin Vs. Bibi Khatija, AIR 1988 Patna 58. In paragraph 29, the
learned Single Judge held that when the shares are not determined by
way of partition, it would be most dangerous to give primacy to any of
the parties. Unless and until there be partition, the Court must act as a
neutral umpire between all the co-owners. It cannot-pit right of one coowner
against another during the course of their jointness.
12. In that case, during the pendency of the proceedings, defendant
No.5 Indra Kumar Jain purchased shares of defendant No.4 Jalaluddin,
one of the sons of Shamsuddin and grandson of Sheikh Gullu and
another heir Sona Begum. Defendant No.5, therefore, became co-owner
along with the other plaintiffs. It is in that context, the learned Single
Judge observed that as per the sale deed produced at exhibit D-13, one
of the tenants became owner of a portion of the property. Unless and
until there is partition amongst co-owners, there can be no defined share
in possession of any of the co-owners. Plaintiffs cannot say that the
respondents are the tenants of a particular premises when one of the
tenants has become a co-owner.
13. That apart, the said decision was subsequently considered by the
Division Bench of Madhya Pradesh High Court in the case of Hameeda
Begam Vs. Champa Bai Jain, 2004 (1) RCJ 484 (MP). The Division
Bench referred to the decision of Full Bench of Madhya Pradesh High
Court in Harbans Singh vs Smt. Margrat, AIR 1990 MP 191. In
paragraph 17, the Division Bench referred to paragraph 9 of the Full
Bench decision. Full Bench also recorded a finding after considering
the decision in Sri Ram Pasricha (supra) and Kanta Goyal (supra) as
also Pal Singh Vs. Sunder Singh, 1989 (1) SCC 444 that the widow/
non-applicant, who is a co-owner/landlady of the premises with some
others, can initiate eviction proceedings against the tenant in the absence
of other co-owners, if they do not object for the same. In paragraph 19,
the Division Bench referred to paragraph 16 of the decision in
Dhannalal (supra). It was observed that the landlord, one of the coowners,
can alone maintain a Suit for eviction of a tenant without
joining other co-owners, if such other co-owners do not object. In
paragraph 20, the Division Bench held that a co-owner cannot institute a
suit or proceeding for eviction against the tenant, if other owners object.
In my opinion, the said decisions do not advance the case of the
defendant No.1 for the reasons to be shortly stated.
14. Mr. Dhakephalkar relied upon decision of India Umbrella
Manufacturing Co. (supra), and in particular paragraph 6 thereof. The
relevant portion of paragraph 6 thereof reads thus,
“...One co-owner filing a suit for eviction against the tenant does
so on his own behalf in his own right and as an agent of the other
co-owners. The consent of other co- owners is assumed as taken
unless it is shown that the other co-owners were not agreeable to
eject the tenant and the suit was filed in spite of their
disagreement.”
15. He, therefore, submitted that as in the present case, one of the co-
owners has objected, plaintiff cannot maintain the Suit in the capacity of
agent of the other co-owners. I do not find any merit in this submission.
16. In the case of Mohinder Prasad Jain (supra), the Apex Court
referred to decisions in India Umbrella Manufacturing Co. (supra),
Ram Pasricha (supra), Dhannalal (supra) and in paragraph 11, it was
observed that in the event a co-owner objects for initiating eviction
proceedings, the same may be a relevant fact. In my opinion, decisions
in India Umbrella Manufacturing Co. (supra) and Mohinder Prasad
Jain (supra) do not lay down proposition of law that if one of the coowners
object, in that event, such Suit is not maintainable. At the most,
that would be a relevant circumstance.
17. Mr. Dhakephalkar relied upon Division Bench judgment of
Calcutta High Court in Sanat Kumar Mullick (supra). Perusal of that
decision shows that in paragraph 10 of the plaintiff asserted that as two
lessors, namely, proforma defendant Nos. 2 and 3 had expressed their
unwillingness to join with the plaintiff in the present suit, they have
been made proforma defendants. In paragraph 9, the learned Advocate
appearing on behalf of proforma defendants No.2 and 3 supported the
plaintiff and contended that although defendants No.2 and 3 were not
willing to join the plaintiff at the time of institution of the suit, they are
now prepared to support the claim of the plaintiff. The Division Bench
in paragraph 13 held that the plaint is liable to be rejected only on the
ground that the plaintiff having admitted in the plaint that the other
lessors than the plaintiff refused to join as co-plaintiff in the suit, a suit
for eviction of a lessee in respect of the tenanted property is not
maintainable at his instance. Once at the time of filing of the suit, the
other co-landlords refused to join hands with the plaintiff, they cannot
now after the rejection of the plaint change their mind and pray for
adding them as co-plaintiffs in the appeal where the Division Bench was
called upon to decide whether the learned Trial Judge rightly passed the
impugned order. With utmost respect, I am unable to subscribe to the
said view. The Division Bench, after recording in paragraph 9 that the
Advocate for defendants No.2 and 3 supported the plaintiff and
expressed willingness to join the plaintiff, the Division Bench with
utmost respect ought not to have dismissed the Suit on that score more
so when in eviction suits, if the subsequent event is relevant, the Court
cannot ignore the same.
18. As against this, in the case of Jainuddin (supra), the Suit was
instituted under Sections 12 and 13 of the Bombay Rent Act. In that
Suit, defendant no.2 was the co-owner of the plaintiff. Defendant no.2
filed his written statement contending inter alia that the notice
terminating tenancy of the defendant no.1-tenant was not legal. He also
opposed the plaintiff's suit for eviction on the ground of bonafide
requirement. It was urged that notice of termination ought to have
issued by all the owners. The learned single Judge of this Court
considered the decisions of the Apex Court in (1) Ram Pasricha
(supra) and (2) Kanta Goel (supra). In paragraph 12, the submissions
advanced on behalf of the plaintiff were recorded. It was submitted that
in a suit for eviction against the tenant by the co-owner the interest of
the other co-owners cannot be affected in any way. If one of the coowners
files a suit against the tenant and obtains possession of the suit
premises, the premises encumbered by induction of the tenant is
removed if the plaintiff's suit succeeds. If a co-owner is not satisfied
with a decree for exclusive possession in favour of one of the coowners,
his remedy is only to file a separate suit for partition and get his
share demarcated. It would be dangerous proposition that in cases of this
type, a co-owner as a defendant can oppose the suit of one of the co-
owners for possession of the suit premises claiming a decree for eviction
of the tenant. After recording the submissions of the plaintiff, the
learned Single Judge observed that there is a considerable substance in
those submissions. After referring to the decision of the apex Court in
Ram Pasricha (supra) and Kanta Goel (supra), it was observed that
one of the co-owners can file a suit for eviction against the tenant. The
landlord who had let out his premises to the tenant and heirs succeeded
to his estate and one of the co-owners files a suit for eviction against the
tenant on the ground of bonafide requirement for himself, his mother or
married brother, such a suit shall be maintainable and decree for
possession in favour of one of the co-owners shall be passed. In
paragraph 13 it was observed thus:
“13. I am unable to appreciate the submission of Shri Rane that
in case where the co-owners does not give his consent for
institution of the suit by one of the co-owners and resists such a
suit, if filed, no decree on the ground of bona fide requirement for
use and occupation can be passed. In my view, having regard to
the observations made by the Supreme Court in the cases referred
to above, the co-owner may be added as a party but he cannot be
considered a necessary party to the suit by one of the co-owners.
He cannot resists the suit of the co-owner and contend that no
decree can be passed in favour of the co-owner on any of the
grounds given in the Rent Act. Take for instance, the tenant is
damaging the suit premises, causing waste to it, sub-letting the
premises or demolishing the same and without the permission of
the landlord altering the structure or constructing a permanent
structure and if a co-owner files a suit on the grounds mentioned
above against the tenant for eviction, how the co-owner can
oppose such a suit? If one of the co-owners is trying to remove the
encumbrance on the tenanted premises within the ambit of the
provisions of the Rent Act, then the decree for eviction in any way
will not be inconsistent with, or contrary to the interest of the coowners.
In such a suit if a co-owner is added as a party, no relief
can be asked against him. If the co-owner obtains possession in
pursuance of the decree passed in his favour by the competent
Court, his possession will be deemed to be the possession on
behalf of all the co-owners. And if the co-owner is not happy with
possession of the other co-owners, his remedy is only to file a
separate suit for petition and possession and get his share in a
proper proceedings democrated. Shri Rane has no disputed that the
co-owners can file a suit for bona fide requirement for his use and
occupation of the suit premises for himself or for any member of
his family. However his grievance is that if a co-owner opposes
such suit, no decree for exclusive possession in favour of one of
the co-owners can be passed. It is rather not possible to accept this
submission of Shri Rane. Because in such a suit filed by one of the
co-owners for eviction, it cannot be detrimental to the interest of
the other co-owners. Take a case where the tenant does not pay
arrears of rent and a suit is filed for recovery of arrears of rent
making the co-owners as party defendant, can he oppose the said
suit on the round that the rent should not be paid to the co-owners.
Take a case, where a suit for eviction is opposed on the ground of
causing damage to the building let out to a tenant, or causing
waste of some kind, can the co-owners join the hands with the
tenant to oppose the suit contending that the decree should not be
passed in favour of co-owners. It will be dangerous proposition to
allow the co-owners to oppose such a suit for a eviction by another
co-owners or any grounds whatsoever, joining the hands with
recalcitrant tenant and refuse to give consent for institution of the
suit. In these circumstances and having regard to the observations
made by the Supreme Court in the two cases referred to above, the
contention of Shri Rane cannot be accepted.”
19. The decision in Jainuddin's case (supra) was subsequently
followed by the learned Single Judge in Rahimtulla Abdul Rahiman
Vs. Chandrakant, AIR 1982 BOMBAY 282, and in particular
paragraph 7. The decision of the learned Single Judge in Jainuddin's
case (supra) was quoted with the approval by the Division Bench in
Hiralal Vs. Namdeo, 1983(2) Bom.C.R.71. The decision in Jainuddin
(supra) was also followed in V. Prabha & Co. Private Limited Vs.
Kuljit Singh Chadha, 2007 (2) ALL M.R. 352. Thus, the issue whether
one of the co-owners can maintain the Suit inspite of other co-owners
objecting to it is no longer res integra as far as this Court is concerned.
That apart, if one of the co-owners objects to filing of the Suit by
another co-owner, indirectly the rights of the co-owners who intend to
institute the Suit or already instituted the Suit will be curtailed. In other
words, such co-owners will not be entitled to exercise right incidental to
the right of ownership of the property. In such situation, as observed by
the learned Single Judge in Jainuddin's case (supra), remedy of other
co-owner/s is to institute Suit for partition and separate possession. In
view thereof, I do not find any merit in the submission of Mr.
Dhakephalkar that Suit was liable to be dismissed on this ground.
20. Before I consider the submissions advanced by the learned
Counsel appearing for the parties in respect of ground of unlawful
subletting, it is necessary to refer to the condition No.3 of rent bill,
which reads thus:
“3. Tenant not to sublet rented premises and take in new partner
or assign to anyone without prior written permission of landlord.”
21. Mr. Dhakephalkar has taken me through the - (i) clauses 5 and 7
of the Partnership Deed dated 16.05.1990 entered into by and between -
(a) Dinkar Haridas Thakkar (party of the first part), (b) Bhupatbhai
Bhagwatidas Unadcut (party of the second part), and (c) Jawahar
Purshottam Popat (party of the third part) whereunder the parties agreed
to and decided to carry on business in the name and style of M/s.
Zameer Silk Emporium in the suit premises with effect from 14.05.1990.
Clauses 5 and 7 read thus,
“5. The business of the Partnership shall be that of Trading in
Readymade Garments, Perfumes, Art silk materials, Agar wood
and General merchandise items and other trade with the consent
of all the partners.
6. …
7. The Profit and Losses of the Partnership business
including capital gains or losses shall be divided between and
borne by the parties in the following proportion:-
No. Name Profit / Loss %
1. Shri Dinkar Haridas Thakkar 50%
2. Shri Bhupatbhai B. Unadcut 25%
3. Shri Jawahar P. Popat 25%
-------
Total... 100%
====
22. He submitted that the business of partnership is that of trading in
readymade garments, perfumes, art silk materials, Agarwood and
general merchandise items and other trade with the consent of all the
partners. The profits and losses of the partnership business including
capital gains or losses are to be divided between and borne by the parties
was set out in clause 7 of the Partnership Deed. He, therefore, submitted
that defendant No.2 was carrying on business in readymade garments
among others in partnership with the defendant No.1.
23. As against this, Mr. Kumbhakoni invited my attention to clause
10 of the said Partnership Deed. Clause 10 recited that the party of the
first part, namely Dinkar Haridas Thakkar, is a sleeping partner, still, he
is given 50% share in profits and losses. The ground of unlawful
subletting is considered by the learned trial Judge from paragraph 8 to
15. In paragraph 8, the learned trial Judge referred to condition No.3 of
the terms and conditions of the tenancy. The learned trial Judge
considered evidence of plaintiff's witness namely, plaintiff No.2. He
deposed that he personally visited the suit premises a few times as a
customer and seen entire loft area portion of the suit premises being used
and occupied by outsiders and strangers under the name and style of
Zameer Silk Emporium namely, defendant No.2. He was asked for and
was given their business cards by both the defendants. The business
card of the defendant No.2 is printed on both the sides and one side of it
is in Arabic or Urdu language. Plaintiff issued notice dated 20.11.2000
through Advocate Shri. M. A. Shukla upon the defendant No.2 at the suit
address. The said notice was duly received by the defendant No.2.
Defendant No.2, however, failed to give reply. He further deposed that
when he visited the suit premises personally on 23.12.2000, he took
photographs. These photographs show the name of defendant No.2 -
Zameer Silk Emporium displayed on the name board of the suit
premises in English and also in Urdu / Arabic. Suit summons was served
on defendant No.2 at the suit premises on 08.01.2002 and the same was
accepted by one Jawahar P. Popat, who is claiming to be a partner of
both the defendants firms. The summons was accepted by signing and
affixing stamps of both the defendants on the suit summons and
incidentally stamp of defendant No.2 is similar as that affixed on the
postal acknowledgment.
24. The learned trial Judge considered evidence of D.W.1 Dinkar H.
Thakkar, partner of defendant No.1. During the course of crossexamination,
he admitted that one M/s. S. Damodar, who was doing
business of commission agent in the suit premises from 1970 to 1976
was occupying 1/4th portion of the loft in the suit premises. He admitted
that he did not obtain any written permission from landlord for inducting
him in the portion of the suit premises. After considering the evidence
on record, from paragraph 12 to 15, the learned trial Judge held that
defendant No.1 has unlawfully parted with possession of the suit
premises to the defendant No.2. Plaintiff had issued letter to the
defendant No.2 questioning the presence, use and occupation of the
portion of the suit premises and had warned that presumption would be
drawn against it, if no reply is given. Defendant No.2 did not give reply.
The learned trial Judge also considered Partnership Deed dated
16.05.1990 and observed that it is a doubtful document created with an
intention of suppressing the unlawful subletting by the defendant No.1
to the outsiders namely, the other partners - Bhupatbhai Unadcut and
Jawahar Popat. The learned trial Judge also noted that Bhupatbhai
Unadcut and Jawahar Popat are working partners and are responsible for
consequences arising out of the business, but Dinkar Thakkar is a
sleeping partner and gets lion's share of 50% as per clause 7 of the
Partnership Deed. In paragraph 14, the learned trial Judge observed that
on the issue of unlawful subletting, there is no cross-examination of
P.W.1 by the Advocate for defendant No.1.
25. As far as the appellate Court is concerned, this issue is considered
from paragraph 8 to 15. The appellate Court has considered - (i)
condition No.3 of the terms and conditions of the tenancy; (ii) notice
dated 20.11.2000 issued by the plaintiff through their Advocate to
defendant No.2; (iii) photographs taken by plaintiff's witness at exhibitE
collectively; (iv) service of suit summons on defendant No.2 at the
suit address; (v) admission of D.W.1 in the cross-examination that one
M/s. S. Damodar carrying on business of commission agent in the suit
premises from 1970 to 1976 was occupying 1/4th portion of the loft area
without any permission from the landlord; (vi) admission of defendants'
witness that defendant No.2 was in occupation of loft portion of the suit
premises, which was occupied by M/s. S. Damodar earlier; (vii)
admission of defendants' witness that Zameer Silk Emporium has
obtained necessary and separate Government Licence and Shop and
Establishment Licence from the Corporation independently; (viii)
Partnership Deed with defendant No.2 is not registered under the Indian
Partnership Act, 1932 (for short 'Partnership Act');
26. In paragraph 12, the appellate Court recorded a finding that
defendant No.1 has unlawfully parted with possession of the suit
premises to the defendant No.2. Appellate Court also noted that the
Partnership Deed dated 16.05.1990 is a doubtful document which was
created only with an intention of suppressing the unlawful subletting of
the suit premises by the defendant No.1 to the outsiders namely the so
called other two partners Bhupatbhai Unadcut and Jawahar Popat.
Bhupatbhai Unadcut and Jawahar Popat are described as working
partners who would be engaged in day to day running of the business.
However, D.W.1 Dinkar Thakkar gets lions share i.e. 50% as described
in clause 7 of the Partnership Deed. The appellate Court, therefore,
recorded a categoric finding that the Partnership Deed is not reliable and
that was the consideration by the defendant No.2 to the defendant No.1
for unlawful subletting. Two partners namely Bhupatbhai and Jawahar
are not family members of D.W.1 Dinkar nor the partners of defendant
No.1 firm. In fact, they were not remotely related to D.W.1 Dinkar and
are strangers and outsiders inducted under the Partnership Deed dated
16.05.1990.
27. In paragraph 14, the appellate Court held that on the question of
unlawful subletting, there was no cross-examination of P.W.1.
28. In the case of Suresh Vasant Vs. Ramabai Keshav, 2002 (1)
Mh.L.J. 933, the learned Single Judge of this Court observed in
paragraph 29 thus,
21. In the light of the above finding, if one turns to law laid
down by the Apex Court in the case of Shama Prasad Raje v.
Ganpatrao, AIR 2000 SCW 3493, it is obligatory on the part of the
landlord to prove that the tenant has parted with possession of the
tenanted premises and such parting of possession must be backed
by for some consideration. In the instant case, it has been proved
that the possession is with defendant No. 2. The admission given
by defendant No. 1 that defendant No. 2 is his partner in the
business run under the name and style of respondent No. 3, itself
goes a long way to establish the case pleaded by the plaintiffs.
Assuming that there was partnership between defendant Nos. 1
and 2 brought into existence of on 23 September, 1976 the terms
and conditions thereof cannot be read for want of proof of
document. Assuming that the contents thereof can be read in
evidence, even then as already found, no genuine partnership
could be said to have been established. It was brought into
existence only to defeat the provisions of rent legislation. This
Court in case of Gangaram v. Ashok Kumar, 1969 Mh.L.J. Note
43 has held as under :
".....that the question whether relationship between the
petitioners amount to a partnership or not could not be
decided merely on the basis of a deed which they had
filed and the Court is entitled to examine all the incidents
of the relationship between the parties as shown by the
written agreement together with the surrounded
circumstances at the time when the contract was entered
into, conduct of the parties as well as other facts that
may be relevant, such for instance, as the right to control
the property, the manner in which the accounts of the
business are kept, the right to receive profits and the
liability to share the losses and from these deduce the
real intention of the parties. Existence of any written or
verbal agreement, between the parties, conduct of the
parties towards one another, the mode in which they
have dealt with one another, the mode in which each has
with the knowledge of the other dealt with other people,
are all Indicia which may help the Court in finding
whether partnership does or does not exist. The Court
must consider all the facts and circumstances of the
cases and draw an inference from them as a whole
without attributing undue weight to any one of them. It
will have to be found in each case whether a plea of
partnership which is put forth as a defence to an
application by the landlord under Clause 13(3)(iii) of the
Rent Control Order is intended to be a mere cloak to
cover up the use of the premises by a person other than
the tenant or whether the tenant is himself carrying on
the partnership business. Thus, the failure to produce
account books, the conduct of the tenant in not taking
part in the business which was carried on only in the
name of the stranger and the earlier conduct in subletting
the premises for a period of 5 years to another person
indicated that the document of partnership was merely a
cloak brought into being in order to defeat the
application of the landlord under Clause 13(3)(iii) of the
Rent Control Order. (Order of the Rent Control
authorities holding that the tenant had sublet the
premises upheld)."
29. Applying the tests laid down by this Court to the facts of the
present case, it has to be held that defendant No.1 has failed to establish
legal and genuine partnership between defendants No.1 and 2. Perusal
of questions and answers during the course of cross-examination of
D.W.1 as referred in paragraph 8 above also substantiates the case of
unlawful subletting by defendant No.1 in favour of defendant No.2. The
concurrent findings of fact recorded by the Courts below are based upon
appreciation of evidence on record. In the present case, the premises
and its availability for running business was the prime and basic
consideration for inducting defendant No.2 by the defendant No.1.
Partnership Deed has not been registered under the Partnership Act.
Perusal of the answer given by D.W.1 to question No.121 shows that
partners of defendant No.1 have no experience in the business of
Agarwood and perfumes. The Courts below have carefully scrutinized
the evidence in the light of law. In view thereof, I do not find that any
case is made out for invocation of powers under Section 115 of C.P.C.
Defendant No.1 was not in a position to demonstrate that the findings
recorded by the Courts below are perverse being based upon no
evidence or that they are contrary to the evidence on record. Defendant
No.1 was also not in a position to demonstrate that no reasonable or
prudent person would have reached the conclusion arrived at by the
Courts below. Hence, Application fails and the same is dismissed.
30. In view of the dismissal of C.R.A., nothing survives in Civil
Application No.86 of 2016 and the same is dismissed accordingly.
31. At this stage, Ms Raghuvanshi orally applies for stay of this order
for a period of twelve weeks from today. She assures that within one
week from today, the applicant will file usual undertaking disclosing the
names of persons who are using / occupying suit premises and also file
their undertaking incorporating therein :
(i) that they are in actual possession of the suit premises and
nobody else is in possession;
(ii) that they have so far neither created third party interest nor
parted with the possession of the suit premises;
(iii) that they will hereafter neither create third party interest nor
part with the possession of the suit premises;
(iv) that they will pay the arrears of rent, if any to the
respondents within one weeks from today; and
(v) that in case the applicants are unable to obtain suitable
orders within twelve weeks from today from the higher Court,
they will deliver vacant and peaceful possession of the suit
premises to the respondent.
32. In view thereof, notwithstanding dismissal of Civil Revision
Application, subject to the applicant and all adult persons using the suit
premises giving undertaking in the aforesaid terms with advance copy to
the other side within one week from today, the eviction decree shall not
be executed for a period of 12 weeks from today. In case the applicants
do not file undertaking in the above terms and/or arrears of rent are not
paid within one week from today, the interim order shall stand vacated
without further reference to the Court. List the application for reporting
compliance on 27.10.2016. Order accordingly.
(R. G. KETKAR, J.)
down by the Apex Court in the case of Shama Prasad Raje v.
Ganpatrao, AIR 2000 SCW 3493, it is obligatory on the part of the
landlord to prove that the tenant has parted with possession of the
tenanted premises and such parting of possession must be backed
by for some consideration. In the instant case, it has been proved
that the possession is with defendant No. 2. The admission given
by defendant No. 1 that defendant No. 2 is his partner in the
business run under the name and style of respondent No. 3, itself
goes a long way to establish the case pleaded by the plaintiffs.
Assuming that there was partnership between defendant Nos. 1
and 2 brought into existence of on 23 September, 1976 the terms
and conditions thereof cannot be read for want of proof of
document. Assuming that the contents thereof can be read in
evidence, even then as already found, no genuine partnership
could be said to have been established. It was brought into
existence only to defeat the provisions of rent legislation. This
Court in case of Gangaram v. Ashok Kumar, 1969 Mh.L.J. Note
43 has held as under :
".....that the question whether relationship between the
petitioners amount to a partnership or not could not be
decided merely on the basis of a deed which they had
filed and the Court is entitled to examine all the incidents
of the relationship between the parties as shown by the
written agreement together with the surrounded
circumstances at the time when the contract was entered
into, conduct of the parties as well as other facts that
may be relevant, such for instance, as the right to control
the property, the manner in which the accounts of the
business are kept, the right to receive profits and the
liability to share the losses and from these deduce the
real intention of the parties. Existence of any written or
verbal agreement, between the parties, conduct of the
parties towards one another, the mode in which they
have dealt with one another, the mode in which each has
with the knowledge of the other dealt with other people,
are all Indicia which may help the Court in finding
whether partnership does or does not exist. The Court
must consider all the facts and circumstances of the
cases and draw an inference from them as a whole
without attributing undue weight to any one of them. It
will have to be found in each case whether a plea of
partnership which is put forth as a defence to an
application by the landlord under Clause 13(3)(iii) of the
Rent Control Order is intended to be a mere cloak to
cover up the use of the premises by a person other than
the tenant or whether the tenant is himself carrying on
the partnership business. Thus, the failure to produce
account books, the conduct of the tenant in not taking
part in the business which was carried on only in the
name of the stranger and the earlier conduct in subletting
the premises for a period of 5 years to another person
indicated that the document of partnership was merely a
cloak brought into being in order to defeat the
application of the landlord under Clause 13(3)(iii) of the
Rent Control Order. (Order of the Rent Control
authorities holding that the tenant had sublet the
premises upheld)."
29. Applying the tests laid down by this Court to the facts of the
present case, it has to be held that defendant No.1 has failed to establish
legal and genuine partnership between defendants No.1 and 2. Perusal
of questions and answers during the course of cross-examination of
D.W.1 as referred in paragraph 8 above also substantiates the case of
unlawful subletting by defendant No.1 in favour of defendant No.2. The
concurrent findings of fact recorded by the Courts below are based upon
appreciation of evidence on record. In the present case, the premises
and its availability for running business was the prime and basic
consideration for inducting defendant No.2 by the defendant No.1.
Partnership Deed has not been registered under the Partnership Act.
Perusal of the answer given by D.W.1 to question No.121 shows that
partners of defendant No.1 have no experience in the business of
Agarwood and perfumes. The Courts below have carefully scrutinized
the evidence in the light of law. In view thereof, I do not find that any
case is made out for invocation of powers under Section 115 of C.P.C.
Defendant No.1 was not in a position to demonstrate that the findings
recorded by the Courts below are perverse being based upon no
evidence or that they are contrary to the evidence on record.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.76 OF 2016
WITH
CIVIL APPLICATION NO.86 OF 2016
H. Vasanji & Company through Partner
Chirag Dinkar Thaker
Vs.
Chandrakumari Harnamsingh Chowhan
CORAM : R. G. KETKAR, J.
Pronounced on: OCTOBER 13, 2016
Heard Mr. Dhakephalkar, learned Senior Counsel for applicant
and Mr. Kumbhakoni, learned Senior Counsel for respondent No.1 at
length.
2. By this Application under Section 115 of the Code of Civil
Procedure, 1908 (for short 'C.P.C.'), applicant, hereinafter referred to as
'defendant No.1', has challenged the judgment and decree dated 4/5th
August 2006 passed by the learned Judge, presiding over Court Room
No.15 of the Court of Small Causes in R.A.E. Suit No.1041/1084 of
2001 as also the judgment and decree dated 09.12.2015 passed by the
Appellate Bench of the Small Causes Court in 2(a) Appeal No.562 of
2006. By these orders, the Courts below have decreed the Suit instituted
by the respondent No.1, hereinafter referred to as 'plaintiff', filed under
Section 16(1)(e) of the Maharashtra Rent Control Act, 1999 (for short
'Act') and directed the defendants to handover vacant and peaceful
possession of the shop, more particularly described in the plaint
(hereinafter referred to as 'suit premises').
3. Plaintiffs have instituted the Suit inter alia on the ground that the
defendant No.1 is the tenant in respect of the suit premises. Defendant
No.1, without the consent and permission of plaintiffs in writing, had
unlawfully sublet the suit premises to the respondent No.2, hereinafter
referred to as 'defendant No.2' thereby committing breach of the
conditions of the tenancy. The Courts below have decreed the Suit. It is
against these decisions, defendant No.1 has instituted the present Civil
Revision Application.
4. In support of this Application, Mr. Dhakephalkar strenuously
contended that the Suit was instituted by – (1) Chandrakumari
Harnamsingh Chowan and (2) Kamleshsingh Harnamsingh Chowan
against the defendants. They are the owners to the extent of 6 Anna
shares. The other co-owners have objected to filing of their Suit. In
fact, defendants have examined Ishwarsingh Gangasingh Chawhan as
D.W.2. D.W.2 has referred to various proceedings and has objected to
filing of Suit by the plaintiffs. As the co-owners have objected to filing
of the Suit by the plaintiffs as also one of the co-owners has in fact
deposed against the plaintiffs, the Courts below ought to have dismissed
the Suit on the ground of maintainability. In support of this proposition,
he relied upon the following decisions:
a. Decision of Madhya Pradesh High Court in Hafizullah Vs.
Shikhar Chand Jain, Second Appeal No.813 of 1995 decided on
12.05.1997 decided by S. C. Pandey, J.;
b. M/s.India Umbrella Manufacturing Co. Vs. Bhagabandei
Agarwalla, (2004) 3 SCC 178;
c. Sanat Kumar Mullick Vs. Octavious Tea & Industries
Limited, (2006) 2 CHN 280;
d. Hafizullah Shekh Barkatullah Vs. Puran Chand Jain,
(2014) 1 MP LJ 167; and
e. Mohinder Prasad Jain Vs. Manohar Lal Jain, (2006) 2
SCC 724.
5. Mr. Dhakephalkar submitted that the Courts below committed
serious error in decreeing the Suit on the ground of unlawful subletting
as contemplated by Section 16(1)(e) of the Act. The Courts below failed
to appreciate that plaintiffs have not established that defendant No.1 had
given exclusive possession of loft portion to the defendant No.2. He
invited my attention to paragraphs 85 to 92 of the appellate Court
judgment. In paragraph 85, the appellate Court referred to the principles
governing the ground of unlawful subletting. In paragraph 86, the
appellate Court observed that D.W.1 Dinkar admitted that he had sublet
the loft on the suit premises to the defendant No.2. It was further
observed “it is clear from the admission given by D.W.1 that he had
sublet the loft on the suit premises to the defendant No.2 without
consent and permission of plaintiffs”. He submitted that the Courts
below failed to consider that there was no separate entrance leading to
the loft. No finding is recorded by either of the Court to the effect that
there is separate entrance leading to the loft. In other words, defendant
No.1 is in control of the suit premises. The findings recorded in
paragraphs 86, 89 and 92 are based upon alleged admission of unlawful
subletting by the defendant No.1. The said findings are based on
conjectures and surmises and are contrary to the evidence on record. He
submitted that defendant No.2 is in fact sister-concern of the defendant
No.1. The Courts below have also not properly considered the
Partnership Deeds dated 16.05.1990 and 02.07.1992. The Courts below
held that the Partnership Deed dated 16.05.1990 is a camouflage
document so as to give a go-bye to the ground of unlawful subletting.
The Courts below held that the Partnership Deed dated 02.07.1992
falsifies genuineness of the partnership between defendants No.1 and 2.
6. Mr. Dhakephalkar submitted that during the pendency of the
appeal, defendant No.1 filed application exhibit-21 on 27.09.2010 under
Order 41, Rule 27 of C.P.C. for production of additional evidence. The
appellate Court rejected the application only on the ground that along
with the application, defendant No.1 had produced list of documents and
the documents, which were sought to be produced, were in fact not
produced. He has taken me through the evidence on record and
submitted that Application requires consideration.
7. On the other hand, Mr. Kumbhakoni supported the impugned
orders. He submitted that plaintiffs are the co-owners to the extent of 6
Anna shares. They are entitled to maintain the Suit regardless of
objection raised by one of the co-owners, Ishwarshing Gangasingh
Chawhan. In support of his submissions, he relied upon the following
decisions:
a. V. Prabha & Co. Pvt. Ltd. Vs. Kuljit Singh Chadha, 2007
(2) ALL MR 352;
b. M/s. India Umbrella Manufacturing Co. (supra);
c. Dhannalal Vs. Kalawatibai, AIR 2002 SC 2572;
d. Jainuddin Vs. Sitaram, 1981 Mh.L.J. 498;
e. Sri Ram Pasricha Vs. Jagannath, AIR 1976 SC 2335;
f. Dwarka Nath Mitter Vs. Tara Prosunna Roy, (1890) ILR
17 Cal 160;
g. Mokshoda Debi Vs. Prem Chand Nuskur, (1887) ILR 14
CAL 201;
8. As far as the ground of unlawful subletting as contemplated by
Section 16(1)(e) of the Act is concerned, Mr. Kumbhakoni has invited
my attention to questions No.74, 98, 99, 101, 103 to 105, 114 and 121
and the answers given by D.W.1 Dinkar H. Thakkar, which are as under:
“Q.74 Shown witness Exhibit “B” rent receipt and attention is drawn
on clause 3 therein. Have you abided this terms of tenancy?
Ans. No.
Q.98 Has Zameer Silk Emporium obtained necessary and
separate Govt. and Municipal licenses?
Ans. They obtained Shop and establishment Licence from BMC.
Q.99 Whether the Defendant No.2 partnership has been
registered?
Ans. I do not know.
Q.101 So have you recorded in writing change in nature in
business of Defendant No.2?
Ans. No.
Q.103 Shown Exhibit “C” Colly. to the witness.
Who's card they are
Ans. There are the visiting cards of Defendant No.1 and
Defendant No.2 respectively.
Q.104 Does this two bears the address of the suit premises?
Ans. Yes.
Q.105 Shown Exhibit E, photograph it is of the suit premises?
Ans. Yes.
Q.114 Do you have any permission in written for subletting the
suit premises?
Ans. I not taken any permission in written.
Q.121 Do the partners of Defendant No.1 have any experience in
the business of Agarwood and Perfumes?
Ans. No. ”
9. Mr. Kumbhakoni has taken me through the evidence on record
and the findings recorded by the Courts below. He submitted that after
appreciating the evidence on record, the Courts below have concurrently
held that defendant No.1 has unlawfully sublet mezzanine floor to the
defendant No.2. Defendant No.2 is in exclusive possession of the
mezzanine floor. He, therefore, submitted that no case is made out for
invocation of powers under Section 115 of the C.P.C.
10. I have considered the rival submissions advanced by the learned
Counsel appearing for the parties. I have also perused the material on
record. Mr. Dhakephalkar submitted that as one of the co-owners
objected to the Suit instituted by other co-owners, the Courts below
were not justified in decreeing the Suit. Courts below ought to have
dismissed the Suit. He relied upon the decisions rendered in paragraph
4.
11. In the case of Hafizullah (supra), the learned Single Judge of
Madhya Pradesh High Court referred to the decisions of the Apex Court
in - a) Smt. Kanta Goyal Vs. B. P. Pathak, AIR 1977 SC 1599, b) Sri
Ram Pasricha (supra) as also c) decision of Patna High Court in
Sharfuddin Vs. Bibi Khatija, AIR 1988 Patna 58. In paragraph 29, the
learned Single Judge held that when the shares are not determined by
way of partition, it would be most dangerous to give primacy to any of
the parties. Unless and until there be partition, the Court must act as a
neutral umpire between all the co-owners. It cannot-pit right of one coowner
against another during the course of their jointness.
12. In that case, during the pendency of the proceedings, defendant
No.5 Indra Kumar Jain purchased shares of defendant No.4 Jalaluddin,
one of the sons of Shamsuddin and grandson of Sheikh Gullu and
another heir Sona Begum. Defendant No.5, therefore, became co-owner
along with the other plaintiffs. It is in that context, the learned Single
Judge observed that as per the sale deed produced at exhibit D-13, one
of the tenants became owner of a portion of the property. Unless and
until there is partition amongst co-owners, there can be no defined share
in possession of any of the co-owners. Plaintiffs cannot say that the
respondents are the tenants of a particular premises when one of the
tenants has become a co-owner.
13. That apart, the said decision was subsequently considered by the
Division Bench of Madhya Pradesh High Court in the case of Hameeda
Begam Vs. Champa Bai Jain, 2004 (1) RCJ 484 (MP). The Division
Bench referred to the decision of Full Bench of Madhya Pradesh High
Court in Harbans Singh vs Smt. Margrat, AIR 1990 MP 191. In
paragraph 17, the Division Bench referred to paragraph 9 of the Full
Bench decision. Full Bench also recorded a finding after considering
the decision in Sri Ram Pasricha (supra) and Kanta Goyal (supra) as
also Pal Singh Vs. Sunder Singh, 1989 (1) SCC 444 that the widow/
non-applicant, who is a co-owner/landlady of the premises with some
others, can initiate eviction proceedings against the tenant in the absence
of other co-owners, if they do not object for the same. In paragraph 19,
the Division Bench referred to paragraph 16 of the decision in
Dhannalal (supra). It was observed that the landlord, one of the coowners,
can alone maintain a Suit for eviction of a tenant without
joining other co-owners, if such other co-owners do not object. In
paragraph 20, the Division Bench held that a co-owner cannot institute a
suit or proceeding for eviction against the tenant, if other owners object.
In my opinion, the said decisions do not advance the case of the
defendant No.1 for the reasons to be shortly stated.
14. Mr. Dhakephalkar relied upon decision of India Umbrella
Manufacturing Co. (supra), and in particular paragraph 6 thereof. The
relevant portion of paragraph 6 thereof reads thus,
“...One co-owner filing a suit for eviction against the tenant does
so on his own behalf in his own right and as an agent of the other
co-owners. The consent of other co- owners is assumed as taken
unless it is shown that the other co-owners were not agreeable to
eject the tenant and the suit was filed in spite of their
disagreement.”
15. He, therefore, submitted that as in the present case, one of the co-
owners has objected, plaintiff cannot maintain the Suit in the capacity of
agent of the other co-owners. I do not find any merit in this submission.
16. In the case of Mohinder Prasad Jain (supra), the Apex Court
referred to decisions in India Umbrella Manufacturing Co. (supra),
Ram Pasricha (supra), Dhannalal (supra) and in paragraph 11, it was
observed that in the event a co-owner objects for initiating eviction
proceedings, the same may be a relevant fact. In my opinion, decisions
in India Umbrella Manufacturing Co. (supra) and Mohinder Prasad
Jain (supra) do not lay down proposition of law that if one of the coowners
object, in that event, such Suit is not maintainable. At the most,
that would be a relevant circumstance.
17. Mr. Dhakephalkar relied upon Division Bench judgment of
Calcutta High Court in Sanat Kumar Mullick (supra). Perusal of that
decision shows that in paragraph 10 of the plaintiff asserted that as two
lessors, namely, proforma defendant Nos. 2 and 3 had expressed their
unwillingness to join with the plaintiff in the present suit, they have
been made proforma defendants. In paragraph 9, the learned Advocate
appearing on behalf of proforma defendants No.2 and 3 supported the
plaintiff and contended that although defendants No.2 and 3 were not
willing to join the plaintiff at the time of institution of the suit, they are
now prepared to support the claim of the plaintiff. The Division Bench
in paragraph 13 held that the plaint is liable to be rejected only on the
ground that the plaintiff having admitted in the plaint that the other
lessors than the plaintiff refused to join as co-plaintiff in the suit, a suit
for eviction of a lessee in respect of the tenanted property is not
maintainable at his instance. Once at the time of filing of the suit, the
other co-landlords refused to join hands with the plaintiff, they cannot
now after the rejection of the plaint change their mind and pray for
adding them as co-plaintiffs in the appeal where the Division Bench was
called upon to decide whether the learned Trial Judge rightly passed the
impugned order. With utmost respect, I am unable to subscribe to the
said view. The Division Bench, after recording in paragraph 9 that the
Advocate for defendants No.2 and 3 supported the plaintiff and
expressed willingness to join the plaintiff, the Division Bench with
utmost respect ought not to have dismissed the Suit on that score more
so when in eviction suits, if the subsequent event is relevant, the Court
cannot ignore the same.
18. As against this, in the case of Jainuddin (supra), the Suit was
instituted under Sections 12 and 13 of the Bombay Rent Act. In that
Suit, defendant no.2 was the co-owner of the plaintiff. Defendant no.2
filed his written statement contending inter alia that the notice
terminating tenancy of the defendant no.1-tenant was not legal. He also
opposed the plaintiff's suit for eviction on the ground of bonafide
requirement. It was urged that notice of termination ought to have
issued by all the owners. The learned single Judge of this Court
considered the decisions of the Apex Court in (1) Ram Pasricha
(supra) and (2) Kanta Goel (supra). In paragraph 12, the submissions
advanced on behalf of the plaintiff were recorded. It was submitted that
in a suit for eviction against the tenant by the co-owner the interest of
the other co-owners cannot be affected in any way. If one of the coowners
files a suit against the tenant and obtains possession of the suit
premises, the premises encumbered by induction of the tenant is
removed if the plaintiff's suit succeeds. If a co-owner is not satisfied
with a decree for exclusive possession in favour of one of the coowners,
his remedy is only to file a separate suit for partition and get his
share demarcated. It would be dangerous proposition that in cases of this
type, a co-owner as a defendant can oppose the suit of one of the co-
owners for possession of the suit premises claiming a decree for eviction
of the tenant. After recording the submissions of the plaintiff, the
learned Single Judge observed that there is a considerable substance in
those submissions. After referring to the decision of the apex Court in
Ram Pasricha (supra) and Kanta Goel (supra), it was observed that
one of the co-owners can file a suit for eviction against the tenant. The
landlord who had let out his premises to the tenant and heirs succeeded
to his estate and one of the co-owners files a suit for eviction against the
tenant on the ground of bonafide requirement for himself, his mother or
married brother, such a suit shall be maintainable and decree for
possession in favour of one of the co-owners shall be passed. In
paragraph 13 it was observed thus:
“13. I am unable to appreciate the submission of Shri Rane that
in case where the co-owners does not give his consent for
institution of the suit by one of the co-owners and resists such a
suit, if filed, no decree on the ground of bona fide requirement for
use and occupation can be passed. In my view, having regard to
the observations made by the Supreme Court in the cases referred
to above, the co-owner may be added as a party but he cannot be
considered a necessary party to the suit by one of the co-owners.
He cannot resists the suit of the co-owner and contend that no
decree can be passed in favour of the co-owner on any of the
grounds given in the Rent Act. Take for instance, the tenant is
damaging the suit premises, causing waste to it, sub-letting the
premises or demolishing the same and without the permission of
the landlord altering the structure or constructing a permanent
structure and if a co-owner files a suit on the grounds mentioned
above against the tenant for eviction, how the co-owner can
oppose such a suit? If one of the co-owners is trying to remove the
encumbrance on the tenanted premises within the ambit of the
provisions of the Rent Act, then the decree for eviction in any way
will not be inconsistent with, or contrary to the interest of the coowners.
In such a suit if a co-owner is added as a party, no relief
can be asked against him. If the co-owner obtains possession in
pursuance of the decree passed in his favour by the competent
Court, his possession will be deemed to be the possession on
behalf of all the co-owners. And if the co-owner is not happy with
possession of the other co-owners, his remedy is only to file a
separate suit for petition and possession and get his share in a
proper proceedings democrated. Shri Rane has no disputed that the
co-owners can file a suit for bona fide requirement for his use and
occupation of the suit premises for himself or for any member of
his family. However his grievance is that if a co-owner opposes
such suit, no decree for exclusive possession in favour of one of
the co-owners can be passed. It is rather not possible to accept this
submission of Shri Rane. Because in such a suit filed by one of the
co-owners for eviction, it cannot be detrimental to the interest of
the other co-owners. Take a case where the tenant does not pay
arrears of rent and a suit is filed for recovery of arrears of rent
making the co-owners as party defendant, can he oppose the said
suit on the round that the rent should not be paid to the co-owners.
Take a case, where a suit for eviction is opposed on the ground of
causing damage to the building let out to a tenant, or causing
waste of some kind, can the co-owners join the hands with the
tenant to oppose the suit contending that the decree should not be
passed in favour of co-owners. It will be dangerous proposition to
allow the co-owners to oppose such a suit for a eviction by another
co-owners or any grounds whatsoever, joining the hands with
recalcitrant tenant and refuse to give consent for institution of the
suit. In these circumstances and having regard to the observations
made by the Supreme Court in the two cases referred to above, the
contention of Shri Rane cannot be accepted.”
19. The decision in Jainuddin's case (supra) was subsequently
followed by the learned Single Judge in Rahimtulla Abdul Rahiman
Vs. Chandrakant, AIR 1982 BOMBAY 282, and in particular
paragraph 7. The decision of the learned Single Judge in Jainuddin's
case (supra) was quoted with the approval by the Division Bench in
Hiralal Vs. Namdeo, 1983(2) Bom.C.R.71. The decision in Jainuddin
(supra) was also followed in V. Prabha & Co. Private Limited Vs.
Kuljit Singh Chadha, 2007 (2) ALL M.R. 352. Thus, the issue whether
one of the co-owners can maintain the Suit inspite of other co-owners
objecting to it is no longer res integra as far as this Court is concerned.
That apart, if one of the co-owners objects to filing of the Suit by
another co-owner, indirectly the rights of the co-owners who intend to
institute the Suit or already instituted the Suit will be curtailed. In other
words, such co-owners will not be entitled to exercise right incidental to
the right of ownership of the property. In such situation, as observed by
the learned Single Judge in Jainuddin's case (supra), remedy of other
co-owner/s is to institute Suit for partition and separate possession. In
view thereof, I do not find any merit in the submission of Mr.
Dhakephalkar that Suit was liable to be dismissed on this ground.
20. Before I consider the submissions advanced by the learned
Counsel appearing for the parties in respect of ground of unlawful
subletting, it is necessary to refer to the condition No.3 of rent bill,
which reads thus:
“3. Tenant not to sublet rented premises and take in new partner
or assign to anyone without prior written permission of landlord.”
21. Mr. Dhakephalkar has taken me through the - (i) clauses 5 and 7
of the Partnership Deed dated 16.05.1990 entered into by and between -
(a) Dinkar Haridas Thakkar (party of the first part), (b) Bhupatbhai
Bhagwatidas Unadcut (party of the second part), and (c) Jawahar
Purshottam Popat (party of the third part) whereunder the parties agreed
to and decided to carry on business in the name and style of M/s.
Zameer Silk Emporium in the suit premises with effect from 14.05.1990.
Clauses 5 and 7 read thus,
“5. The business of the Partnership shall be that of Trading in
Readymade Garments, Perfumes, Art silk materials, Agar wood
and General merchandise items and other trade with the consent
of all the partners.
6. …
7. The Profit and Losses of the Partnership business
including capital gains or losses shall be divided between and
borne by the parties in the following proportion:-
No. Name Profit / Loss %
1. Shri Dinkar Haridas Thakkar 50%
2. Shri Bhupatbhai B. Unadcut 25%
3. Shri Jawahar P. Popat 25%
-------
Total... 100%
====
22. He submitted that the business of partnership is that of trading in
readymade garments, perfumes, art silk materials, Agarwood and
general merchandise items and other trade with the consent of all the
partners. The profits and losses of the partnership business including
capital gains or losses are to be divided between and borne by the parties
was set out in clause 7 of the Partnership Deed. He, therefore, submitted
that defendant No.2 was carrying on business in readymade garments
among others in partnership with the defendant No.1.
23. As against this, Mr. Kumbhakoni invited my attention to clause
10 of the said Partnership Deed. Clause 10 recited that the party of the
first part, namely Dinkar Haridas Thakkar, is a sleeping partner, still, he
is given 50% share in profits and losses. The ground of unlawful
subletting is considered by the learned trial Judge from paragraph 8 to
15. In paragraph 8, the learned trial Judge referred to condition No.3 of
the terms and conditions of the tenancy. The learned trial Judge
considered evidence of plaintiff's witness namely, plaintiff No.2. He
deposed that he personally visited the suit premises a few times as a
customer and seen entire loft area portion of the suit premises being used
and occupied by outsiders and strangers under the name and style of
Zameer Silk Emporium namely, defendant No.2. He was asked for and
was given their business cards by both the defendants. The business
card of the defendant No.2 is printed on both the sides and one side of it
is in Arabic or Urdu language. Plaintiff issued notice dated 20.11.2000
through Advocate Shri. M. A. Shukla upon the defendant No.2 at the suit
address. The said notice was duly received by the defendant No.2.
Defendant No.2, however, failed to give reply. He further deposed that
when he visited the suit premises personally on 23.12.2000, he took
photographs. These photographs show the name of defendant No.2 -
Zameer Silk Emporium displayed on the name board of the suit
premises in English and also in Urdu / Arabic. Suit summons was served
on defendant No.2 at the suit premises on 08.01.2002 and the same was
accepted by one Jawahar P. Popat, who is claiming to be a partner of
both the defendants firms. The summons was accepted by signing and
affixing stamps of both the defendants on the suit summons and
incidentally stamp of defendant No.2 is similar as that affixed on the
postal acknowledgment.
24. The learned trial Judge considered evidence of D.W.1 Dinkar H.
Thakkar, partner of defendant No.1. During the course of crossexamination,
he admitted that one M/s. S. Damodar, who was doing
business of commission agent in the suit premises from 1970 to 1976
was occupying 1/4th portion of the loft in the suit premises. He admitted
that he did not obtain any written permission from landlord for inducting
him in the portion of the suit premises. After considering the evidence
on record, from paragraph 12 to 15, the learned trial Judge held that
defendant No.1 has unlawfully parted with possession of the suit
premises to the defendant No.2. Plaintiff had issued letter to the
defendant No.2 questioning the presence, use and occupation of the
portion of the suit premises and had warned that presumption would be
drawn against it, if no reply is given. Defendant No.2 did not give reply.
The learned trial Judge also considered Partnership Deed dated
16.05.1990 and observed that it is a doubtful document created with an
intention of suppressing the unlawful subletting by the defendant No.1
to the outsiders namely, the other partners - Bhupatbhai Unadcut and
Jawahar Popat. The learned trial Judge also noted that Bhupatbhai
Unadcut and Jawahar Popat are working partners and are responsible for
consequences arising out of the business, but Dinkar Thakkar is a
sleeping partner and gets lion's share of 50% as per clause 7 of the
Partnership Deed. In paragraph 14, the learned trial Judge observed that
on the issue of unlawful subletting, there is no cross-examination of
P.W.1 by the Advocate for defendant No.1.
25. As far as the appellate Court is concerned, this issue is considered
from paragraph 8 to 15. The appellate Court has considered - (i)
condition No.3 of the terms and conditions of the tenancy; (ii) notice
dated 20.11.2000 issued by the plaintiff through their Advocate to
defendant No.2; (iii) photographs taken by plaintiff's witness at exhibitE
collectively; (iv) service of suit summons on defendant No.2 at the
suit address; (v) admission of D.W.1 in the cross-examination that one
M/s. S. Damodar carrying on business of commission agent in the suit
premises from 1970 to 1976 was occupying 1/4th portion of the loft area
without any permission from the landlord; (vi) admission of defendants'
witness that defendant No.2 was in occupation of loft portion of the suit
premises, which was occupied by M/s. S. Damodar earlier; (vii)
admission of defendants' witness that Zameer Silk Emporium has
obtained necessary and separate Government Licence and Shop and
Establishment Licence from the Corporation independently; (viii)
Partnership Deed with defendant No.2 is not registered under the Indian
Partnership Act, 1932 (for short 'Partnership Act');
26. In paragraph 12, the appellate Court recorded a finding that
defendant No.1 has unlawfully parted with possession of the suit
premises to the defendant No.2. Appellate Court also noted that the
Partnership Deed dated 16.05.1990 is a doubtful document which was
created only with an intention of suppressing the unlawful subletting of
the suit premises by the defendant No.1 to the outsiders namely the so
called other two partners Bhupatbhai Unadcut and Jawahar Popat.
Bhupatbhai Unadcut and Jawahar Popat are described as working
partners who would be engaged in day to day running of the business.
However, D.W.1 Dinkar Thakkar gets lions share i.e. 50% as described
in clause 7 of the Partnership Deed. The appellate Court, therefore,
recorded a categoric finding that the Partnership Deed is not reliable and
that was the consideration by the defendant No.2 to the defendant No.1
for unlawful subletting. Two partners namely Bhupatbhai and Jawahar
are not family members of D.W.1 Dinkar nor the partners of defendant
No.1 firm. In fact, they were not remotely related to D.W.1 Dinkar and
are strangers and outsiders inducted under the Partnership Deed dated
16.05.1990.
27. In paragraph 14, the appellate Court held that on the question of
unlawful subletting, there was no cross-examination of P.W.1.
28. In the case of Suresh Vasant Vs. Ramabai Keshav, 2002 (1)
Mh.L.J. 933, the learned Single Judge of this Court observed in
paragraph 29 thus,
21. In the light of the above finding, if one turns to law laid
down by the Apex Court in the case of Shama Prasad Raje v.
Ganpatrao, AIR 2000 SCW 3493, it is obligatory on the part of the
landlord to prove that the tenant has parted with possession of the
tenanted premises and such parting of possession must be backed
by for some consideration. In the instant case, it has been proved
that the possession is with defendant No. 2. The admission given
by defendant No. 1 that defendant No. 2 is his partner in the
business run under the name and style of respondent No. 3, itself
goes a long way to establish the case pleaded by the plaintiffs.
Assuming that there was partnership between defendant Nos. 1
and 2 brought into existence of on 23 September, 1976 the terms
and conditions thereof cannot be read for want of proof of
document. Assuming that the contents thereof can be read in
evidence, even then as already found, no genuine partnership
could be said to have been established. It was brought into
existence only to defeat the provisions of rent legislation. This
Court in case of Gangaram v. Ashok Kumar, 1969 Mh.L.J. Note
43 has held as under :
".....that the question whether relationship between the
petitioners amount to a partnership or not could not be
decided merely on the basis of a deed which they had
filed and the Court is entitled to examine all the incidents
of the relationship between the parties as shown by the
written agreement together with the surrounded
circumstances at the time when the contract was entered
into, conduct of the parties as well as other facts that
may be relevant, such for instance, as the right to control
the property, the manner in which the accounts of the
business are kept, the right to receive profits and the
liability to share the losses and from these deduce the
real intention of the parties. Existence of any written or
verbal agreement, between the parties, conduct of the
parties towards one another, the mode in which they
have dealt with one another, the mode in which each has
with the knowledge of the other dealt with other people,
are all Indicia which may help the Court in finding
whether partnership does or does not exist. The Court
must consider all the facts and circumstances of the
cases and draw an inference from them as a whole
without attributing undue weight to any one of them. It
will have to be found in each case whether a plea of
partnership which is put forth as a defence to an
application by the landlord under Clause 13(3)(iii) of the
Rent Control Order is intended to be a mere cloak to
cover up the use of the premises by a person other than
the tenant or whether the tenant is himself carrying on
the partnership business. Thus, the failure to produce
account books, the conduct of the tenant in not taking
part in the business which was carried on only in the
name of the stranger and the earlier conduct in subletting
the premises for a period of 5 years to another person
indicated that the document of partnership was merely a
cloak brought into being in order to defeat the
application of the landlord under Clause 13(3)(iii) of the
Rent Control Order. (Order of the Rent Control
authorities holding that the tenant had sublet the
premises upheld)."
29. Applying the tests laid down by this Court to the facts of the
present case, it has to be held that defendant No.1 has failed to establish
legal and genuine partnership between defendants No.1 and 2. Perusal
of questions and answers during the course of cross-examination of
D.W.1 as referred in paragraph 8 above also substantiates the case of
unlawful subletting by defendant No.1 in favour of defendant No.2. The
concurrent findings of fact recorded by the Courts below are based upon
appreciation of evidence on record. In the present case, the premises
and its availability for running business was the prime and basic
consideration for inducting defendant No.2 by the defendant No.1.
Partnership Deed has not been registered under the Partnership Act.
Perusal of the answer given by D.W.1 to question No.121 shows that
partners of defendant No.1 have no experience in the business of
Agarwood and perfumes. The Courts below have carefully scrutinized
the evidence in the light of law. In view thereof, I do not find that any
case is made out for invocation of powers under Section 115 of C.P.C.
Defendant No.1 was not in a position to demonstrate that the findings
recorded by the Courts below are perverse being based upon no
evidence or that they are contrary to the evidence on record. Defendant
No.1 was also not in a position to demonstrate that no reasonable or
prudent person would have reached the conclusion arrived at by the
Courts below. Hence, Application fails and the same is dismissed.
30. In view of the dismissal of C.R.A., nothing survives in Civil
Application No.86 of 2016 and the same is dismissed accordingly.
31. At this stage, Ms Raghuvanshi orally applies for stay of this order
for a period of twelve weeks from today. She assures that within one
week from today, the applicant will file usual undertaking disclosing the
names of persons who are using / occupying suit premises and also file
their undertaking incorporating therein :
(i) that they are in actual possession of the suit premises and
nobody else is in possession;
(ii) that they have so far neither created third party interest nor
parted with the possession of the suit premises;
(iii) that they will hereafter neither create third party interest nor
part with the possession of the suit premises;
(iv) that they will pay the arrears of rent, if any to the
respondents within one weeks from today; and
(v) that in case the applicants are unable to obtain suitable
orders within twelve weeks from today from the higher Court,
they will deliver vacant and peaceful possession of the suit
premises to the respondent.
32. In view thereof, notwithstanding dismissal of Civil Revision
Application, subject to the applicant and all adult persons using the suit
premises giving undertaking in the aforesaid terms with advance copy to
the other side within one week from today, the eviction decree shall not
be executed for a period of 12 weeks from today. In case the applicants
do not file undertaking in the above terms and/or arrears of rent are not
paid within one week from today, the interim order shall stand vacated
without further reference to the Court. List the application for reporting
compliance on 27.10.2016. Order accordingly.
(R. G. KETKAR, J.)
No comments:
Post a Comment