Shri Pawan Kumar Jain And Anr. vs Shri Chattar Singh And Anr.
2006 Latest Caselaw 2259 Del

JUDGMENT

Sanjay Kishan Kaul, J.

CM No. 7852/2006

1. Heard learned Counsel for the parties.

2. For the reasons stated in the application, the application is allowed.

CM (M) No. 277/2002

3. Admit.

4. At the request of the learned Counsel for the parties, the petition is taken up for final disposal.

5. Shri Chattar Singh, respondent No. 1 let out the premises consisting of two rooms with verandah, kitchen and bath on the first floor of property No. 4462, Aryapura, Subzi Mandi, Delhi to respondent No. 2 M/s. Latto Mal Nanu Ram Jain, a partnership firm (hereinafter referred to as the said firm) in September 1963. Shri Chattar Singh alleged that the partnership firm had defaulted in the payment of rent and further the premises had been sublet to one Shri Pawan Kumar Jain without the written consent of the owner/landlord. An eviction petition was thus filed under the provisions of Section 14(1)(a) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the said Act). The Additional Rent Controller in terms of the order dated 24.8.1993 passed an eviction order holding that the ground of subletting was made out. It was also found that there were arrears of rent but the benefit of Section 14(2) of the said Act was made available being the first default. The petitioner filed an appeal against the said order before the Additional Rent Control Tribunal. The appeal was not pressed qua the ground under Section 14(1)(a) of the said Act. The appeal qua the ground under Section 14(1)(b) of the said Act was dismissed by the Tribunal by an order dated 19.2.2002, which order is sought to be impugned in the present proceedings under Article 227 of the Constitution of India. The relevant factual matrix is being set out hereinafter.

6. The said firm was alleged to consist of four partners at the time of letting out in September 1963. These four partners were Shri Latto Mal, Shri Kirori Mal, Shri Chhajju Ram and Shrimati Parvati Devi. Shri Pawan Kumar Jain, in whose favor the subletting is alleged was stated not to be a partner in September 1963. This claim of the landlord was contested on the ground that there were not four but five partners including Shri Pawan Kumar Jain in terms of the Partnership Deed dated 4.10.1963 in terms whereof five partners have been set out. This Partnership Deed records that in terms of the earlier Partnership Deed dated 22.9.1960 Shri Latto Mal, Shrimati Parvati Devi, Shri Chhajju Ram and Shri Kirori Mal were carrying on business under the name and style of M/s. Lattoo Mal Nanu Ram Jain fruit commission agents. Shri Chhajju Mal and Shri Kirori Mal retired from the partnership concern w.e.f. 1.7.1963 and that the parties to the Deed being Shri Latto Mal, Shrimati Parvati Devi, Shri Pawan Kumar Jain and Shri Prem Chand Jain had agreed to take over the business as a going concern w.e.f. 1.7.1963. It is, thus, the plea advanced by the petitioners that the partnership firm was already reconstituted prior to the tenancy in September 1963 and the Partnership Deed dated 4.10.1963 only records the said arrangement. This partnership was dissolved vide Dissolution Deed dated 26.4.1982 in terms whereof the tenancy rights in respect of the property in suit came to Shri Pawan Kumar Jain. The eviction petition was filed only in July 1989. The petitioner has also relied upon the Income Tax Assessment Order for the year 1965-66 dated 27.1.1968, which records that Shri Pawan Kumar Jain had become a partner of the firm w.e.f. 1.7.1963 on investment being made.

7. The substratum of the defense of respondent No. 1 Shri Chattar Singh, which is also the basis of the impugned orders is that the Partnership Deed is dated 4.10.1963 while the premises were let out on 1.9.1963. It has thus been held that since Shri Pawan Kumar Jain was not a partner on the date when the premises were let out but was inducted subsequently, a case of assignment/parting with possession of the firm was made out. On the other hand, it has been emphasised by learned Counsel for the petitioner that the Partnership Deed dated 4.10.1963 records that the new partnership had come into being on 1.7.1963, which is prior to the creation of the tenancy. It is also contended that the present case is not one where there is endeavor to back date an arrangement as contemporaneous documents including the Income Tax Assessment Order dated 27.1.1968 record the factum of Shri Pawan Kumar Jain having become a partner on 1.7.1963. The eviction proceedings were filed sixteen years after the tenancy was created and the only explanation given is that the landlord would have no occasion to know the internal arrangement between the partners of the firm.

8. A perusal of the impugned order shows that there is considerable discussion on the liability relating to partnership. A partnership firm is not a distinct legal entity and the partnership property in law belongs to all the partners constituting the firm.

9. The relevant provision being Section 14(4) of the said Act is as under:

14. Protection of tenant against eviction

(1)...

(2)...

(3)...

(4) For the purpose of Clause (b) of the proviso to sub-section (1), any premises which have been let for being used for the purposes of business or profession shall be deemed to have been sub-let 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 sub-letting such premises to that person.

10.In view of the aforesaid position, the conclusion reached was that so long as the original partners continued, the induction of any other partner would not amount to subletting. The substratum of the reasoning in the impugned order, thus, is that Shri Pawan Kumar Jain was not an original partner and all the original partners had walked out of the firm leaving the tenanted premises to Shri Pawan Kumar Jain, which would amount to assignment/parting with possession by the firm.

11. It is trite to say that this Court in exercise of jurisdiction under Article 227 of the Constitution of India does not act as an appellate court or seek to reappraise the evidence, the object being to see that the subordinate courts and tribunals function within the domain of their jurisdictions. However, this Court is not devoid of the power to correct any patent error.

12. In my considered view, the basic premise on which the courts below have proceeded is erroneous resulting in a patent error. The tenancy was created from September 1963. The Partnership Deed is dated 4.10.1963. The Partnership Deed does record that a fresh partnership came into existence w.e.f. 1.7.1963, which is prior to the creation of tenancy. Shri Pawan Kumar Jain was inducted as a partner w.e.f. 1.7.1963 and was thus one of the original partners. Thus, the fact that the other partners have retired would not make any difference if there is a continuing partner. There is a complete misreading of the important document being the Partnership Deed dated 4.10.1963.

13. In the given facts of the case it can also not be said that there was a ruse on the part of the partners to avoid the consequences of the assignment of tenancy since the creation of tenancy and of the partnership were almost co- terminus. There are contemporaneous documents available being the Income Tax Assessment Order of Shri Pawan Kumar Jain dated 27.1.1968 which records the factum of Shri Pawan Kumar Jain having become a partner of the firm w.e.f. 1.7.1963 and the Deed of Dissolution dated 26.4.1982 resulting only in Shri Pawan Kumar Jain being entitled to the tenancy rights. The eviction proceedings were filed in the year 1989, which is sixteen years after the creation of the tenancy and seven years after Shri Pawan Kumar Jain alone acquired the rights of tenancy. These aspects have been emphasised only to show that the actions of the partners were bonafide and not tainted with doubt or any oblique motive. It can, thus, hardly be said that there is assignment or parting with possession to Shri Pawan Kumar Jain by the tenant firm as Shri Pawan Kumar Jain was an existing partner on the date when the tenancy was created.

14. The impugned orders of the Additional Rent Controller and the Additional Rent Control Tribunal are accordingly set aside and the petition filed by the petitioner on grounds under Section 14(1)(b) of the said Act is dismissed.

15. The petition is allowed leaving the parties to bear their own costs.

CM No. 545/2003

16. The application does not survive for consideration and is disposed of.