ORDER S.B. Deshmukh, J.
1. Heard learned senior counsel Mr. P.M. Shah, instructed by learned Advocate Mr. P.V. Barde who appears for the petitioners, and learned Counsel Mr. D.S. Bharuka who appears for respondent Nos. 2 to 7. Initially caveat was filed on behalf of respondent Nos. 2 to 7. Learned Counsel Mr. Bharuka, however, makes a statement that he also appears on behalf of respondent No. 1. He assures that if Vakalatnama is not filed on record, of respondent No. 1, he shall place it on record immediately.
2. This writ petition challenges the judgment and order passed by the learned District Judge, Dhule in Regular Civil Appeal No. 14 of 2000 confirming the judgment and decree passed by the learned Civil Judge, Junior Division, Shirpur, District Dhule in Regular Civil Suit No. 118 of 1988.
3. A resume, of relevant facts, may be summarized, as follows:
(a) One Mr. Jamnalal Rampratapsheth Agrawal filed Regular Civil Suit No. 118 of 1988 in the Court of learned Civil Judge, Junior Division, Shirpur, district Dhule, against M/s Mishrilal Dhanraj and Company, a Partnership firm and legal heirs of deceased Mishrilal Dhanraj Jain. The suit was for possession of the suit property and for arrears of rent. The plaintiff Jamnalal has sought possession of the suit property on the ground of default in payment of rent, subletting of the suit property, non-user of the suit property for the period of six months before the date of filing of the suit, bona fide personal requirement.
(b) The trial Court, after recording the evidence, decreed the suit on the ground of default and sub-letting of the suit property by the original tenant. The judgment and decree passed by the trial Court was assailed in Regular Civil Appeal No. 14 of 2000 in the Court of learned District Judge at Dhule. As noted above, this appeal also came to be dismissed, confirming the judgment and decree passed by the trial Court. However, the learned District Judge, Dhule accepted only one ground for eviction i.e. sub-letting under Section 13(1)(e) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as Bombay Rent Act, for short). It is this judgment and decree passed by the first Appellate Court, is assailed in this writ petition under Article 227 of the Constitution of India, by the original defendants i.e. the two legal heirs of deceased Mishrilal viz. Hukumchand and Nilesh, who were defendant Nos. 2B and 7.
(c) In response to the suit, written statement is filed by the petitioners i.e. original defendant Nos. 1, 4 and 6. After plaint denials, it is pleaded by the defendants, in their written statement that after dissolution of the partnership firm, all rights and liabilities as well as tenancy rights and goodwill were assigned to Mishrilal Dhanraj. Mishrilal Dhanraj, from time to time, established various partnership firms by taking members of the family with him. Sometimes wife of Mishrilal was the partner, sometimes children and daughter-in-laws were also members of such partnership firms with Mishrilal. There were some firms wherein Mishrilal was not partner. On such occasions, on his behalf, his wife Gendabai was representing deceased Mishrilal in such firms. On account of such establishment of partnership firms, it cannot be said that Mishrilal had created sub-tenancy in relation to the suit property. Mishrilal never used to recover rent from the sub-tenants or the partnership firms. Establishment of the partnership firms were created with the consent of Mishrilal. Their duration was at the Will of deceased Mishrilal. The plaintiff/landlord has accepted the rent from such firms, conducting the business in the suit property, from time to time, without any demur. According to the defendants, now the plaintiff cannot raise a grievance regarding the sub-tenancy. These pleadings are made by the defendants in para No. 17 of the written statement. This written statement, which was initially filed by three defendants, seems to have been adopted by other defendants by filing praecipe on 23rd January, 1998.
4. The learned senior counsel on behalf of the petitioners submitted that initially tenancy was created in favour of the partnership firm viz. M/s Mishrilal Dhanraj and Company. There were two partners of this partnership firm viz. Mr. Mishrilal Dhanraj Jain and Fulchand Oswal. This partnership firm was registered in accordance with the provisions of Indian Partnership Act, 1956. According to the learned Counsel for the petitioners, there was a privity of contract in between the landlord Jamnalal and the partners of the partnership firm M/s Mishrilal Dhanraj and Company. The partners of the firm, apart from the partnership firm, in their individual capacity are tenant of the firm. On retirement of one of the partner, such firm continues. In the case on hand, one of the partner Mr. Fulchand Oswal retired from the firm on 17th November, 1961. Retirement deed is on record. According to him, by this deed of retirement, the firm continued and only one partner Mr. Fulchand Jain retired from the partnership firm and business. The suit premises and tenancy rights were assigned to the partner Mr. Mishrilal Dhanraj Jain. Clause 13 of the partnership firm is referred by him. This clause shows that the entire liability of the shop, since 16th of October, 1974, is accepted by Mr. Mishrilal Dhanraj and tenancy rights of the shop and licences, as well as bank account, were permitted to be operated and enjoyed by Mishrilal Dhanraj, the remaining partner. In support of his submission, he relied on notes of cases i.e. Special Civil Application No. 1941 of 1973 in the matter of Nandkishore Mangilal v. Keshav Dadaji reported in 1978 MkLJ. 9. The learned Single Bench of this Court, while delivering the judgment, in the case of Nindkishore (supra), held that a partnership firm is merely a compendious way of describing the partners of the firm and where premises are taken on lease by a partnership firm, the firm itself, not being a legal entity, the partners in their individual capacity become tenants of the rented premises. According to learned Counsel for the petitioners, therefore, after retirement of Mr. Fulchand Jain, tenancy rights remained vested with Mr. Mishrilal Dhanraj Jain. He established the various firms from the members of his family. No outsider was taken as partner in the firms. Therefore, it cannot be said to be a case of sub-letting and/or unlawful assignment of the premises. He, therefore, submits that the judgment and decree, passed by the Courts below, is erroneous and needs to be quashed and set aside.
5. With the assistance of learned Counsel Mr. Bharuka, I have referred to the rent note Exhibit-A, annexed with petition. This rent note seems to be dated 17th November, 1967 in between Jamnalal-landlord and M/s Mishrilal Dhanraj and Company, through its partners. Names of both the partners i.e. Mishrilal and Fulchand are mentioned. In this rent note, description of the property is given, which is not in dispute between the parties to this petition. It appears from this rent note that the suit property was leased out to partnership firm since 17th November, 1967 and monthly rental was Rs. 208.33 Ps. In this rent note, specifically it is agreed by the parties that no sub-tenancy would be created by the tenants i.e. partnership firm. After this clause, reference is made to payment of house taxes etc. Significant to note is that sub-tenancy and/or assignment of the suit property was prohibited and same term was accepted by the tenant firm i.e. M/s Mishrilal Dhanraj and Company through its two partners. Deed of retirement is on record. Learned Counsel for the respondents submits that it is a dissolution of the partnership firm and not the retirement of one of the partner. From the written statement Exhibit-17 it appears that the defendants have accepted the dissolution of the partnership itself i.e. dissolution of M/s Mishrilal Dhanraj and Company. It is also explicit from the record that, on the date of filing of the suit, Mishrilal Dhanraj Jain, one of the partner of the firm, had expired. His legal representatives were arraigned as defendants. Since the possession is decreed only on the ground of sub-letting it is apposite to refer to some provisions of the Bombay Rent Act. Section 15 of the Bombay Rent Act is relevant, in relation to the dispute between parties, which reads, thus:
15. (1) Notwithstanding anything contained in any law (but subject to any contract to the contrary,) it shall not be lawful after the coming into operation of this Act for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein [land after the date of commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1973, for any tenant to give on licence the whole or part of such premises].
(Provided that the [State] Government may by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such [leases or class if leases [or the giving on licence any premises or class of premises] and to such extent as may be specified in the notification].
The provision laid down under Sub-section (1) of Section 15 of the Bombay Rent Act prohibits the sub-tenancy in the absence of any agreement between the landlord and tenant. Not only creation of sub-tenancy or act of sub-letting of whole or any part of the premises, by the tenant, is prohibited, however, assignment or transfer, in any other manner, his interest therein or transfer in any other manner, without the consent of the landlord or any contract to the contrary is prohibited. Thus, plain meaning of Sub-section (1) of Section 15 of the Bombay Rent Act is restriction put on the tenant not to sub-let or assign or transfer, in any other manner, his interest therein, whole or in part of the premises, without consent, or in the absence of any contract to the contrary. In other words, sub-tenancy or transfer or transfer of interest in the suit property is permissible only with the consent of the landlord or by contract between the landlord and tenant. Except these two contingencies, every other mode of transfer of interest or sub-letting or transfer of whole or part of the premises is contained by Section 15 of the Bombay Rent Act. It is to be noted that, in this case, rent note is on record, showing that the tenant firm was contained from creation of sub-tenancy.
6. The Courts below have decreed the suit on the ground of sub-letting under Section 13(1)(e) of the Bombay Rent Act, which reads, thus:
(13)(1) Notwithstanding anything contained in this Act [but subject to [the provisions of Sections 15 and 15A], a landlord shall be entitled to recover possession of any premises if the Court is satisfied--
(e) that the tenant has, since the coming into operation of this Act, [unlawfully sublet] [or after the date of commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1973, unlawfully given on licence, the whole or part of the premises or assigned or transferred in any other manner] his interest therein;....
Section 13 of the Bombay Rent Act, provides grounds on which the landlord can recover possession. Sub-clause (e) of Sub-section (1) of Section 13 of the Bombay Rent Act, gives a ground of unlawful assignment, transfer of the interest of the tenant therein, in whole or part of the property. In the present case, the defendants have admitted, in their written statement itself, that the firm is dissolved. It is also admitted that Mishrilal established various firms. It appears from the written statement that subsequently Mishrilal, even was not partner of the firm, subsequently created. Other persons, may be from the family of Mishrilal, were partners of the firm and were carrying the business in the suit property. Thus, referring to this pleading and evidence, the first Appellate Court has recorded a finding that it is a case of assignment of interest by the tenant Mishrilal, in the property. The finding of fact, regarding sub-tenancy/assignment of the interest by the original tenant, recorded by the trial Court, is upheld by the first Appellate Court. The question of fact and law is always open before the first Appellate Court. In this case, the first Appellate Court, as noted above, concurred with the finding of the trial Court regarding sub-tenancy/assignment of the interest in the suit property by deceased Mishrilal.
7. Learned Counsel for the respondents invited my attention to the judgment of the Apex Court in the matter of Mohd. Kasam H. Gulambhai v. Bakerali Fatehali (deceased) through LRs. . In this case, Mr. Bakerali Fatehali, an individual person, was the tenant. Subsequently, he established partnership firms, taking members of his family as partners. The Apex Court in para 12, has considered and interpreted the provisions laid down under Section 13(1)(e) of the Bombay Rents Act, which, thus, reads:
12. Clause (e) of Section 13(1) of the Act is couched in widest terms. There is absolute prohibition on the tenant from sub-letting, assigning or transferring in any other manner his interest in the tenanted premises. There appears to be no way around this subject of course if there is any contract to the contrary between the landlord and the tenant. In partnership where tenant is a partner, he retains legal possession of the premises as partnership is a compendium of names of all the partners. In partnership the tenant does not divest himself of his right in the premises. On the question of sub-letting etc. law is now very explicit. There is prohibition in absolute terms on the tenant from sub-letting, assignment of disposition of his interest in the tenanted premises.
8. From the evidence on record, it appears that the partner Mr. Mishrilal, who subsequently died before filing of the suit, had distanced himself from the suit premises. He had also distanced himself from the business conducted from the suit property. It is also clear from the evidence on record that initially, the business of commission agent (food grains) was being conducted by the partnership firm M/s Mishrilal Dhanraj and Company, in the premises. On assignment of the premises, various other business were conducted by the subsequent partners in the suit premises. Presently, according to the learned Counsel for the respondents, business of stationery stores is being conducted by the petitioners in the suit premises. Thus, factually, the tenant Mishrilal had divested from suit premises and his status as tenant in the suit property. It is a clear case of assignment of rights by the tenant Mr. Mishrilal in favour of subsequently established partnership firm and their partners. The circumstance that family members were taken as partners with Mishrilal may be relevant so long Mishrilal himself is one of the partner and exclusive possession of the premises remained with said partnership firm. It is not the case of defendants that Mishrilal was partner of subsequent firms. On the contrary, it is pleaded, in the written statement, that whenever Mr. Mishrilal was not partner his interests were represented by his wife Gendabai. Such contention is very difficult to digest. It is also not the case of defendants that Mishrilal, after establishment of subsequent partnership firms, paid the rent to the landlord-plaintiff.
9. The learned Counsel for the petitioners has referred to the acceptance of the rent by the landlord from the partners of subsequently established partnership firms. This submission was also advanced before the first Appellate Court. Payment of rent and receipts are not on record. Apart from this, such payments, if at all made by the subsequent partners of the partnership firms, could not confer a status of tenant on such partners of the subsequently established partnership firms. This cannot be a ground to interfere with the judgment of the Courts below. The contention raised on behalf of the petitioners that the family members were taken as partners of the subsequently established partnership firms also cannot be accepted for the reason that tenancy was not created initially in favour of the joint Hindu family. Looking from any angle to the matter, in my view, no case for interference in the judgment of the first Appellate court, is established. The petition is devoid of substance and needs to be dismissed.
10. In the result, petition, under Article 227 of the Constitution, filed by the original defendants, stand dismissed. No costs.
11. Learned Counsel for the petitioners seeks six weeks time. Learned Counsel for the respondents opposes for such grant of time. In my view, six weeks time can be granted in favour of the petitioners on condition of filing of usual undertaking by the petitioners that they shall not create any third party interest and/or transfer the suit property. Such an undertaking shall be filed by both the petitioners, within two weeks from today. It is made clear that failure on the part of the petitioners in furnishing the undertaking, as above, grant of such six weeks time and protection, shall stand automatically vacated. In this view of the matter, this judgment shall stand stayed for the period of six weeks with above mentioned condition.