Mansaram Sampat Patil Since ... vs Sambhu Harchand Choudhari Since ...
2004 Latest Caselaw 329 Bom

JUDGMENT

S.B. Deshmukh, J.

1. Heard.

2. The defendant Nos. 1, 3 and 4 in R.C.S. No. 20/1779 have challenged the judgment and decree passed by the Civil Judge Junior Division, Taloda, which is subsequently confirmed by the learned District Judge, Dhule in Regular Civil Appeal No. 245/1981, in this Court under Articles 226 and 227 of the Constitution of India.

3. The respondents/original plaintiffs filed Regular Civil Suit No. 20/1979, seeking eviction of the defendants, on the ground of non user of the suit premises for the period of more than 8 months, defaulting in payment of rent for the period January, 1978 to December, 1978, requirement of the premises for the peaceful and bona fide personal use and occupation of the plaintiffs and unlawful assignment/transfer of their interest.

4. The Civil Judge Junior Division, after recording the evidence, passed a decree in favour of the plaintiffs by judgment and decree dated 11th June, 1981. The decree was challenged by filing Regular Civil Appeal No. 245 of 1981 by the original defendants, as stated above, before the learned Additional District Judge, Dhule. Though the trial Court recorded a finding in favour of the original plaintiffs on all the grounds, the learned First Appellate Court, in First Appeal under Section 96 of the Code of Civil Procedure, considering the grounds, confirmed the decree only on the ground, under Section 13(1)(e) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, (hereinafter referred to as the 'Bombay Rent Act of 1947', for short).

5. The question in this writ petition, therefore, is limited so far as passing of the judgment and decree, by the first appellate Court for eviction against the defendants on the ground of Section 13(1)(e) of the said Act. While considering the ground, the learned first appellate Court, referred to the oral as well as documentary evidence led on behalf of the parties. Undisputedly, the burden of proof so far as ground under Section 13(1)(e) is on the plaintiffs. The learned First appellate Court, considering the prevailing circumstances, on the date of induction of partners i.e. defendant Nos. 3 and 4 by the defendant No. 1, recorded a finding under Section 13(1)(e) in favour of the plaintiffs. The first appellate Court noted the facts with dates. The notice to quit, which is served by the plaintiffs to the defendant is dated December 8, 1978. It seems that the notice was served on defendant No. 1 on 9-12-1978. The first appellate Court also observed that after perception by the plaintiff that the defendant No. 1 is trying to transfer his interest, in favour of defendant Nos. 3 and 4, plaintiff served another notice to the defendant No. 1 on 19-12-1978. This notice is served on the same day to defendant No. 1. The first appellate Court noted that within three days thereafter i.e. on 22-12-1978, the deed of Partnership Ex.91 came to be executed in between defendant Nos. 1, 3 and 4. The first appellate Court has considered the purchase of the stamp not by the defendant Nos. 1 to 4 in their name, or any partner of the firm. The first appellate Court has also noted the fact that the said documents of partnership Ex. 91 shows that the commencement of the partnership business is from 1st November, 1978.

5A. The first appellate Court, while considering the case of Section 13(1)(e), considered the documents of partnership placed on record. The first appellate Court, while appreciating the documentary as well as oral evidence led, held that it is not a case of mere accepting partnership in running business. But, it is a colourable transaction and in fact, the suit premises have been assigned in favour of the defendant Nos. 3 and 4 for running their own hotel business, of which they are complete in charge. The first appellate Court also held from the evidence on record that the defendant No. 1 had also left the village and had gone to his native place, which is about 100 miles away and in that respect, the documentary evidence which is led by the plaintiff by way of voters list of the concerned village, is accepted by the first appellate Court.

6. Shri Katneshwarkar, the learned counsel appearing for the petitioners, referred to the document at Exh.91 and submitted that the illation of the first appellate Court that it is a case of transfer of premises and/or parting with possession of premises, is per se illegal. He further submits that no rights have been created by the defendant No. 1 in favour of the defendant Nos. 3 and 4 and that the control over the premises, in fact, remained with the defendant No. 1. He states that since there was no case of creation of rights and/or transfer of rights in favour of the defendant Nos. 2, 3 and 4, there is no provision made in the deed of partnership Ex.91, regarding handing over of the premises by the defendants No. 3 and 4 to defendant No. 1. According to Shri Katneshwarkar, Adv. the defendant No. 1, was previously running the same business in the said premises i.e. Janta Restaurant and on account of the partnership, the said business, in fact, is being continued in the different name and style. He states, however, that the control over the premises is being maintained by the defendant No. 1 himself. According to his submission, the conclusion drawn by the first appellate Court that it is a case of sub-letting or assignment of the premises, is perverse, especially considering the evidence led by the plaintiffs, to discharge the burden. The Senior Advocate Mr. Shah supported the judgment of the first appellate Court.

7. I have examined the submissions made on behalf of the parties. The subletting of the premises within the meaning of Section 13(1)(e) of the Bombay Rent Act, 1947, in fact, is a pure question of fact, according to submission of learned senior Advocate Mr. Shah.

The learned Senior Counsel Shri Shah, appearing for the respondents referred to the judgment of this Court reported in 1987 Maharashtra Rent Control Journal, 617. This Court, referring to the facts of the case of the reported judgment held "Ultimately, as to whether the sub-tenancy is created or not is a pure question of facts. It must obviously dependent upon the facts and circumstances of each case."

I am in respectful agreement with the view taken by this Court in the judgment referred to above i.e. in the matter of R.M. Jagdale and Anr. v. Champalal Hiralal Mutha and Anr., reported in 1987 Maharashtra Rent Control Journal 617.

One more judgment is referred, which is reported in 1999 Bombay Rent Cases 409, Sheth Jivaji Rajbhai and sons v. Patel Hatimbhai Nazarli and Anr. This judgment is from the Gujarat High Court. It, refers to Section 13(1)(e) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947. In this judgment also, brother Justice D.S. Srivastava, while considering the provisions contained in Section 13(1)(e) of the Act, held, "the question of sub-letting is a question of fact."

8. It is useful to refer to the judgment which is relied upon by the learned counsel for the petitioner Shri Katneshwarkar, in the matter of Dev Kumar through legal heirs v. Smt. Swaran Lata and Ors., . In this judgment, the Apex Court, while considering the expression subletting has held that the said expression is not defined in the E.P. Urban Rent Restriction Act. The Apex Court was considering the provisions of E.P. Urban Rent Restriction Act, 1949, and more specifically Section 15(5). The learned counsel Shri Katneshwarkar states that here, in this Act also, i.e. Act of 1947, subletting is not defined. It is true that the Apex Court has laid down in this para 9 that the question of sub letting is a conclusion on a question of law derived from the findings on the material on record, as to the transfer of exclusive possession and as to the said transfer of possession being for consideration."

The contention has to be considered in the facts and circumstances and the evidence led in each case. With this view point, I have considered the submissions advanced on behalf of the petitioner as well as respondents.

9. The ground provided under Section 13(1)(e) is accepted by the trial Court as well as first appellate Court against the defendants and on this ground alone, eviction decree is passed.

Both the learned counsel also advanced the submissions on this ground alone. It would, therefore, be appropriate to refer to the provision laid down under Section 13(1)(e) of the Act of 1947, which reads thus:

13(1) Notwithstanding anything contained in this Act (but subject to the provisions of Sections 15 and 15(A) a landlord shall be entitled to recover possession of any premises if the Court is satisfied:--

(a)......(d).....

(e) that the tenant has, since the coming into operation of this Act, unlawfully sub-let or after the date of commencement of the Bombay Rents, Hotel and Lodging House 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"..........

Thus, eviction under this sub-section is possible on three grounds : (i) When the landlord establishes that the tenant has unlawfully sublet the whole or part of the premises;

(ii) He also succeeds in proving that the tenant has assigned in any other manner, the whole or part of the premises;

(iii) That the tenant has transferred his interest in the premises in any other manner.

The trial Court, while answering the issue No. 8, held that the defendant No. 1 is not residing at Taloda, where the suit premises are situated and he has assigned his interest in the suit property to defendant Nos. 3 and 4. While recording this finding, the trial Court referred to the oral as well as documentary evidence led by the plaintiff. The first appellate Court, after reappreciation of the oral as well as documentary evidence, held that the total cumulative effect of all circumstances, it is not a case of mere accepting partnership running the present business but it is merely colourable transaction and in fact, the suit premises have been assigned in favour of defendant Nos. 3 and 4 for running their own business, of which they are complete in charge, by the defendant No. 1.

10. On perusal of the Deed of Partnership Ex.91, it appears that the control over the premises is being assigned to Omprakash (original defendant No. 4), who is shown at Sr. No. 2 in the said documents. Admittedly, said Omprakash is not a tenant. The deed of partnership placed on record does not indicate any mechanism in respect of removal of control of Omprakash - defendant No. 4 over the tenanted premises. It is also mentioned in the deed of partnership that the payment of rent shall be made by defendant No. 1. More conspicuous is the fact regarding arrangement of profit sharing. If the submission of the learned counsel for the petitioner Shri Katneshwarkar, is accepted that the control of the premises is left over with the defendant No. 1, in that circumstances, the ratio of profit will be 10 paisa i.e. 1/10th share, cannot be said to be acceptable by any ordinary prudent man. Holding a suitable premises, in fact, is important asset. In this case, it was with defendant No. 1. Interest at the rate of 18% for capital investment by defendant Nos. 3 and 4 with largest profit sharing is also hard to digest. In my view, if the terms and conditions of said Exh. 91, Deed of Partnership, are properly appreciated, the only inference can be drawn that the defendant No. 1 has transferred or assigned the suit property to defendant Nos. 3 and 4. The deed of partnership provides that the partnership commences from 1st November, 1978. Admittedly, the stamp is purchased on 22-12-1978. Admittedly, Taloda Town, wherein the suit property is situated, is a place of Tahsil. Interestingly, stamp is not purchased by either of the defendant Nos. 1 to 4. Therefore, the conclusion drawn by the first appellate Court that it is an afterthought case, regarding partnership, cannot be said to be perverse, on the basis of evidence, which is led on record. At the cost of repetition, it has to be considered that the defendant No. 1, after this transaction of 22-12-1978, appears to have been residing at a distant place, evidence for which, by way of voters list and certificate of Gram Panchayat, Khedi-Dheku, is placed on record. Considering the facts and circumstances, the terms and conditions of the documents and evidence on record, the conclusion drawn by the first appellate Court that the deed of partnership is a colourable transaction, and cannot be said to be real or genuine act of taking partners by the defendant No. 1 in his ongoing business, appears to be correct. It is to be noted here that trial Court has also after appreciating the accounts, documentary evidence and oral evidence, held that case under Section 13(1)(e) of the Act of 1947 is established by the plaintiffs. Referring the Balance Sheet, trial Court observed that, defendant No. 1, in eighteen months, got Rs. 622-40 and paid Rs. 3330/- towards rent of the premises. This running business in loss is not accepted by the trial Court. According to the trial Court, deed of partnership is fake and fabricated one. In my view, on taking assessment of the oral as well as documentary evidence independently, the case under Section 13(1)(e) is established by the plaintiffs.

11. This petition is filed by the petitioner under Article 227 of the Constitution of India. The Apex Court, in the matter of Sugarbai M. Siddiq and Ors. v. Ramesh S. Hankare (D) by LRs., held thus:--

"There can be little doubt that in an application under Article 227 of the Constitution, the High Court has to see whether the lower Courts/tribunal has jurisdiction to deal with the matter and so, whether the impugned order is vitiated by procedural irregularity; in other words, the Court is concerned not with decision but with decision making process. On this ground alone the order of the High Court is liable to be set aside."

In my view, there is no procedural irregularity or jurisdictional error committed by the trial Court as well as first appellate Court. It is also not the case that the first appellate Court has considered the evidence, which is not admissible. No perversity is being pointed out on behalf of the petitioner to displace the finding recorded by the trial Court under Section 13(1)(e) of the Act, which is upheld by the first appellate Court. Therefore, I am of the opinion that no case for invocation of extraordinary jurisdiction under Article 227 of the Constitution is made out by the petitioner.

12. At this stage, the learned counsel Shri Katneshwarkar seeks stay of this order for a period of 8 weeks, so as to enable the petitioners to approach the Apex Court. The learned counsel Mr. Shah for the respondent is heard. The judgment and order passed by this Court, shall remain stayed for a period of 8 weeks subject to condition of filing of an undertaking by the petitioner 1-B on behalf of the petitioners Nos. 1(b), (c) and (d) as well as petitioner No. 3, within a period of two weeks from today, to the effect that they shall not create any third party interest in the suit property. In case of failure on the part of the petitioners to give undertaking within the stipulated period, the stay granted by this Court to this judgment, shall stand vacated without reference to this Court.