Abdul Alim vs G.K. Bhatnagar
2000 Latest Caselaw 217 Del

ORDER

Madan B. Lokur, J.

1. The Appellant/tenant in this appeal under Section 39 of the Delhi Rent Control Act,1958 (hereinafter referred to as the Act) has challenged the order dated 11th October ,1982 passed by the learned Rent Control Tribunal (hereinafter referred to as the Tribunal) in R.C.A. No.359/82.

2. The premises in question is a shop below he staircase of property bearing No. G-16, Houz Khas Enclave, New Delhi. On or about 28th May , 1979 the respondent/landlord filed a petition seeking eviction of the Appellant on the ground that he had sublet the suit premises to one Jagdish Chander. The learned Additional Rent Controller, by his order dated 13th April,1982 dismissed the eviction petition. In appeal, the learned tribunal reversed the learned Additional Rent Controller's order and passed an order of eviction against the Appellant/tenant.

3. The suit premises were initially taken on rent by the Appellant some time in1966. On 13th October ,1978, the Appellant and Jagdish chander entered into a partnership agreement Ex. RW-1/1. The agreement stated (in clauses 1 and 2) that the partnership firm shall carry on business in sale , purchase, and supply of sanitary goods; however, the firm could also carry on the business of any other articles, goods and commodities. The shares in the profit and loss of the partnership were to be 50% each (clause 4) . It was mentioned in clause 6 that the tenancy and the possession of the suit premises will be with the appellant. It was stated that Jagdish Chander or the firm shall have nothing to do with the tenancy rights and possession of the suit premises . It was also stated that the possession of the premises shall always vest with the Appellant. In Clause7 of the agreement it was stated that on the determination of the partnership, the possession will remain with the Appellant and Jagdish chander shall have no right in the suit premises.

4. On the same date, that is, 13th October,1978, the Appellant drew up a power of attorney in favour of Jagdish Chander. In this power of attorney it was stated that the Appellant was going abroad and, therefor, he had authorized his attorney to perform certain acts relating to the business and the suit premises.

5. Soon thereafter, on or about 24th October, 1978 the Appellant and Jagdish chander filed a suit for injunction in the Court of the Sub Judge, Delhi. The prayer was for a permanent injunction restraining the Respondent from raising certain walls and from interfering in the user and enjoyment of the space by the plaintiffs therein. In paragraph 1 and 2 of the plaint it was stated as follows :

"1. That the plaintiffs No.1 and 2 are running their business as partners, under a partnership deed dated 13.10.1978, in the shop premises bearing G-16, Hauz Khas, Enclave Market, New Delhi, under the name and style of M/S D.P. Zenith Sanitary Engineering Works. The premises No.G-16, Hauz Khas Enclave Market, New Delhi is under the tenancy of the partnership, however, the rent is being paid in the individual name of the plaintiff No.1; and the defendant/landlord is issuing the rent/receipt in the individual name of plaintiff; for the reasons best know to him.

2. That the premises No. G-16 (shop) under the tenancy of the plaintiffs are in possession of the plaintiff since last about 10 year."

6. On 3rd January,1979, the learned SubJudge was pleased to grant an interim injunction in favour of the plaintiff in the suit. This was subsequently made permanent on 26 the April, 1980 but this is not of any consequence.

7. In the meanwhile, the partnership firm opened a bank account in December 1978 and in May 1979 the Respondent filed the eviction patition as aforesaid.

8. In January, 1980 the Appellant left India for Iraq, ostensibly on pleasure trip. He returned to India after about 7 months in August, 1980. During the pendency of the eviction petition, since the Appellant was required to appear as a witness, he moved an application before the learned Additional Rent Controller stating that he was required to go to Iraq and as such his testimony may be recorded urgently. This application was moved by the Appellant on 20th September, 1980 and his evidence was recorded on 24th September,1980. One of the questions that arose during recording of the statement of the appellant was whether he had gone to Iraq on a tourist visa or on an employment visa. The Appellant stated that he had gone on a tourist visa but he had not brought his passport. He further stated that he should not bring his passport the next day. It appears that he left India on the same night, that is, 24th September,1980 along with his family. According to his statement, his nephew was ill and he was going to Iraq for 4 months.

9. Taking all the materials into consideration, the learned Additional Rent Controller passed an order on 12th April,1982 dismissing the eviction petition. The learned Additional Rent Controller was of the view that the Appellant had not surrendered his tenancy rights and that he continued to be a tenant in the suit premises.

10. In appeal, the learned Tribunal disagreed with the learned Additional Rent Controller and by an order dated 11th October,1982 allowed the appeal of the Respondent. The learned Tribunal was of the view that the partnership deed and the power of attorney executed in favour of Jagdish Chander showed that the control of the suit premises was with Jagdish Chander. The learned tribunal was also of the view that the Appellant had failed to produce his passport and as such, an adverse inference had to be drawn against him in this regard. The learned Tribunal also examined the pleadings in the injunction suit filed by the Appellant and Jagdish Chander and came to the conclusion that the case set up in the suit was that the partnership firm was a tenant in the suit premises whereas the case set up in the present proceedings was that the Appellant is the tenant.

11. Learned counsel for the parties were heard on 7th and 16th February, 2000 when judgement was reserved.

12. Before me, learned counsel for the Appellant submitted that there was nothing on record to show that the partnership agreement was a sham document. As such, he submitted that the Appellant was entitled to the benefit of section 14(4) of the Act which reads as under:

"14. Protection of tenant against eviction

(1) to (3) xxx xxx xxx

(4) For the purposes of clause (b) of the proviso to subsection (1), any premises which have been let for being used for the purposes of business or profession shall be deemed to have been sublet by the tenant,if the Controller is satisfied that the tenant without obtaining the consent in writing of the landlord has, after the 16th day of August, 1958 allowed any person to occupy the whole or any part of the premises ostensibly on the ground that such person is a partner of the tenant in the business or profession but really for the purpose of subetting such premises to that person."

13. Learned counsel for the Respondent, on the other hand, supported the order of the learned Tribunal and contended, inter alia, that the Appellant had given up the tenancy in favour of Jagdish Chander and a clear case of subletting was made out.

14. I am of the view that this appeal must succeed.

15. The partnership agreement was executed between the parties on 13th October ,1978. The firm carried on its business with the participation of the Appellant till January 1980. This clearly shows that the Appellant , who may (at best) have had an intention to go abroad as mentioned in the power of attorney, was nevertheless in India and a partner of the firm and in legal (if not physical) possession of the suit premises at the time when the eviction petition was filed and even subsequently for about 7 to 8 months. Learned counsel for the Respondent has not been able to point out anything to show that between October 1978 and January 1980 the Appellant was not in possession of the suit premises or was not participating in the business of the firm.

16. Quite apart from this, if the intention of the Appellant was to create a sham partnership, it is extremely unlikely that the Appellant would take the responsibility of bearing 50% of the losses. To my mind, this is of some consequence, though not determinative, in showing that the partnership agreement was bona fide. But, it is important to note that in terms of the partnership agreement, the possession of the premises were to continue to remain with the Appellant even after the dissolution of the firm. If the Appellant really had nothing to do with the firm, there was no need to insert such a clause in the agreement. If it is (as suggested by learned counsel for the Respondent) that Jagdish Chander had taken over the tenancy, it is extremely unlikely that Jagdish Chander would have agreed to part with the possession of the suit premises without much ado. I am, therefore, of opinion that the partnership agreement dated 13th October ,1978 created a genuine partnership.

17. Learned counsel for the respondent submitted that it was for the Appellant to show that be retained possession and control over the suit premises. In support of his contention learned counsel relied upon a decision of this Court in the case of Bhagwat Prashad Vs. Shanti Devi,1982 (1) RLR 621. Learned counsel submitted that it has been held therein that once there is an admission that a partnership has come into existence, it is for the tenant to show that the legal possession of the premises was retained by him and that the partnership had not been formed for the purpose of subletting the premises.

18. There is no quarrel with the proportion laid down in Bhagwat Prashad. However , in that case the tenant did not produce the partnership deed and , therefore, an adverse inference was drawn against him. In para 8 of the Report the learned single Judge also observed as follows:

"....... If the tenant had been able to show that there was a clause in the partnership deed to the effect that the tenancy shall always remain with him then, it may be, that the court would have come to the conclusion that there has been no parting with possession by the tenant......"

19. In the present case, not only did the Appellant produce the partnership deed but a perusal thereof shows that the possession remained, and will always remain, with the Appellant. Furthermore, the partnership deed also contained a clause that upon dissolution of the partnership deed, the possession of the suit premises will continue a to remain with the Appellant. Consequently, Bhagwati Prashad does not advance the case of the Respondent.

20. Learned counsel for the Respondent laid much stress on the fact that the partnership agreement and the power of attorney in favour of Jagdish Chander were executed on the same day. According to him, this clearly showed that the Appellant had surrendered his tenancy in favour of Jagdish Chander or the partnership firm. Frankly, this submission does not impress me particularly in view of the fact that the Appellant continued with the partnership in the same premises for well over a year, that is, between October,1978 and January,1980.

21. It may be mentioned that the learned tribunal, in the impugned order, was under the impression that the Appellant left India on the same day on which the partnership deed and the power of attorney were executed. This is factually incorrect. The Appellant left India much later, that is, in January, 1980. The fact that the learned Tribunal was labouring under the impression that the Appellant left India on the same day may, perhaps, have influenced the opinion of the learned Tribunal.

22. The absence of the Appellant from India between January 1980 to August 1980 and thereafter from September 1980 for about 4 months does not, Ipso facto, show that the Appellant had parted with possession of the suit premises. In anticipation of his going abroad, the Appellant had executed a power of attorney in favour of Jagdish Chander so that he could manage the affairs for and on behalf of the Appellant. It is quite clear that the fact of the execution of the power of attorney can be interpreted in favour of either of the parties. I am quite inclined to interpret this fact in favour of the Appellant in view of the contents of the partnership agreement.

23. Learned counsel for the Respondent also argued the that bank account maintained by the partnership firm had only a handful of entries and they were mainly of bearer cheques. In this context, it must be appreciated that the Appellant was, at best, a petty businessman, who had a shop under the staircase. It is unlikely that a very large volume of business could have been transacted by the partnership firm; that, perhaps, explains the lack of adequate entries in the pass book of the bank account. In any case, the number of entries in the pass book of the account maintained by the partnership firm cannot lead to any conclusion that the Appellant had parted with the possession of the suit premises.

24. Even if it is assumed for the sake of argument , that the bank account was started for the purpose of creating evidence, even that will not lead the Respondent anywhere because the infrequent use of the bank account does not necessarily lead to the conclusion that the partnership agreement was a sham. Documents such as the partnership agreement are the the primary source for ascertaining the correct facts. Collateral material such as the existence of a bank account etc. may have relevance in a given case but on the facts of this case, in the face of the partnership agreement, the infrequent operation of the bank account cannot be of much significance.

25. It was then submitted by learned counsel for the Respondent that since the Appellant had failed to produce his passport, an adverse inference should be drawn against him. Insofar as the nonproduction of the passport by the Appellant on 24th september, 1980 is concerned, I am of the view that it was too much to expect the Appellant to take his passport with him to the witness box. The Appellant could have had no idea that he would be asked questions about the nature of the visa obtained by him. Apart from this, the Appellant was expected to leave India that very night and consequently he could not have produced his passport on the next day. After the Appellant came back to India, no application was moved by the respondent to have the passport of the Appellant summoned so as to show that the Appellant had made a false statement that he had gone on a tourist visa. I would not like to read too much into the failure of the Appellant to produce his passport before the learned Additional Rent Controller.

26. During the course of hearing. I did ask learned counsel for the Appellant to produce the passport of the Appellant. the Appellant appeared in Court but he stated that the passport has since been misplaced. To my mind, nothing much would turn on this because the matter is almost 20 years old. The Appellant has apparently not gone abroad after his second visit to Iraq. It is, therefore, quite possible that he may have misplaced his passport. I, therefore, do not think it appropriate to draw an adverse inference against to Appellant.

27. Learned counsel for the Appellant finally submitted that the pleadings in the injunction suit clearly indicate that the Appellant had handed over the suit premises to Jagdish Chander.

28. To my mind, not too much should be read into the pleadings in the injunction suit. It is true that it has been mentioned in the plaint that the partnership firm is a tenant in the suit premises. But this is, perhaps, what the Appellant and Jagdish Chander understood (as laymen) without appreciating the legal nuances. They had, after all, formed a partnership firm and were running their business from the suit premises, it may be that in this context, they had stated in the plaint that the partnership firm was a tenant in the suit premises even though the partnership deed said to the contrary. This solitary piece of bad drafting, to my mind, should not work to the prejudice to the Appellant.

29. For the reasons mentioned above, I am of the view that the learned Additional Rent Controller was right in dismissing the eviction petition. I am also of the view that the learned Tribunal misread the materials on record and came to erroneous conclusions which were not supported by the facts on record.

30. Under these circumstances, the appeal has to be allowed. There will, however, be no order as to costs.

31. The record of the lower court be sent back.