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2004 DIGILAW 1646 (RAJ)

Vinay Kumar v. Ghyan Chand

2004-11-09

PRAKASH TATIA

body2004
Judgment Prakash Tatia, J.-Heard learned Counsel for the appellant as well as learned Counsel for the respondent. 2. The appellant is aggrieved against the concurrent findings of the two Courts below recorded in the Judgment s of the trial Court and appellate Court dated 15th Oct., 2001 and 9th May, 2003. 3. Brief facts of the case are that plaintiff filed a suit for eviction on 13th Sept., 1997 against the defendants. During the pendency of the suit, the plaintiff expired and his legal representatives were taken on record, but subsequently, except one legal representative Bhuramal rest of the legal representatives of said Gyan Chand got their names deleted and, therefore, only one of the sons of the original plaintiff Bhuramal remained as party plaintiff . 4. The suit for eviction was filed on the ground of default, sub-letting and creating nuisance in the premises by the defendant tenant. The trial Court as well as the appellate Court held that the defendant has committed default in payment of rent and further held that the defendant No. 1 sub-letted the suit premises. However, the suit of the plaintiff for eviction of the tenant on the ground of creating nuisance was dismissed. Therefore, the decree for eviction against the appellant is on the ground of sub-letting of the suit premises. 5. According to learned Counsel for the appellant, the appellant took the premises on rent is not in dispute. He entered into partnership with one Sushil Kumar because of increasing of business of the appellant. The plaintiff also submitted that he is doing the business of dry-cleaning and is not causing any nuisance because by use of petrol no smell is coming out. Learned Counsel for the appellant submitted that the appellant produced on record the partnership deed Ex. 2 in support of their case of partnership of appellant with Sushil Kumar. After this partnership with Sushil Kumar, the defendant tenant took partners Shankarlal and Moolchand for which partnership deed dated 3rd May, 1991 was executed between the defendant Shankar Lal and Moolchand. According to learned Counsel for the appellant, taking, someone in partnership in the business cannot be termed as sub-letting of the shop to other. It is also submitted that in view of the documentary evidence, namely, the partnership deed placed on record by the defendant, it is clear that the defendant only admitted new partners in his business. According to learned Counsel for the appellant, taking, someone in partnership in the business cannot be termed as sub-letting of the shop to other. It is also submitted that in view of the documentary evidence, namely, the partnership deed placed on record by the defendant, it is clear that the defendant only admitted new partners in his business. Learned Counsel for the appellant further submitted that the first appellate Court under wrong assumption of law observed that the cases, which were cited were relating to the companies only and they cannot be applied to the cases of the partnership for the purpose of deciding whether the original tenant has sub-letted the shop or not. According to learned Counsel for the appellant even the plaintiff himself did not appear in the witness box, but adverse inference was drawn against the defendant only on his not appearing in the witness box. 6. I considered the submissions of learned Counsel for the appellant and perused the facts of the case. The facts came on record are that the shop was let out originally to the defendant Vinay Kumar as back as in the year 1977. He started his business of dry cleaning. His case was that because of increase in his business he took Sushil Kumar as partner. The evidence which has come on record and is not disputed, discloses that the said business was closed and new business in the name of Sarswati Radio and Watch Service was started in the premises. Thereafter, the business was changed by running business of liquor in the shop. The partnership deed produced on behalf of the defendant contains a recital that the defendant himself shall maintain the accounts and will run the business. Despite this fact, the defendant did not appear in witness box to say so on oath. However, witnesses were produced for defendant in which one of the witnesses is Shankar Lal, power of attorney holder of the defendant in whose favour, the power of attorney was given by the defendant on 3rd April, 2000. It appears that before that, one power of attorney was given on 18th April, 1992 in favour of one Moolchand. These power of attorneys are Ex. 1 and Ex. 3 respectively. The defendant’s witnesses admitted that tenant Vinay Kumar is doing business of contractorship in Chittor whereas the shop in question is situated at Bhilwara. It appears that before that, one power of attorney was given on 18th April, 1992 in favour of one Moolchand. These power of attorneys are Ex. 1 and Ex. 3 respectively. The defendant’s witnesses admitted that tenant Vinay Kumar is doing business of contractorship in Chittor whereas the shop in question is situated at Bhilwara. The Courts below drawn adverse inference against the defendant because of his not coming in the witness box. The Courts below observed that the alleged power of attorney holders could not have any knowledge about the facts relating to the events which occurred before the date power of attorney. 7. After considering all the facts and evidence documentary as well as oral, the two Courts below on the basis of the evidence, held that the business in the suit premises was changed with the alleged partnership and despite mentioning in the partnership deed that the original tenant Vinay Kumar will look after the business and maintain the accounts, did not appear as witness before the trial Court and did not face the cross-examination. It will be worthwhile to mention here that in the facts of this case, the adverse inference could have been drawn only against the defendant because defendant’s case as well as defendant’s witness’s case is that the other persons are occupying the shop, though in the capacity of partner of the defendant, therefore, the entire burden shifted upon the defendant to prove his defence after admitting the admission of other person in the rented shop. By admitting the other persons presence in the shop, the defendant substantially took burden upon himself to prove that those persons are in occupation as permissible under law. 8. The facts as mentioned above clearly reveal that the defendant tenant who was fit to do business and was doing the independent business of contractorship permited other persons to do business in the shop and these facts were taken note by the Courts below to find out whether the defendant has sub-letted the premises or not, therefore, the Courts below have not committed even error of fact much less to the error of law. 9. Learned Counsel for the appellant vehemently submitted that the partnership deed is a documentary evidence and which is executed between the defendant and his partners cannot be discarded only on the basis of oral evidence produced by the plaintiff . 9. Learned Counsel for the appellant vehemently submitted that the partnership deed is a documentary evidence and which is executed between the defendant and his partners cannot be discarded only on the basis of oral evidence produced by the plaintiff . It may be noticed that the partnership deeds executed between the parties binds the executants only. The relevant consideration in such circumstances is that whether in fact that was only execution of a document or in fact a partnership was created and the partners were in fact entered into partnership. When this partnership deed is sought to be used against other persons and when the partnership is under challenge then the persons setting up partnership is required to prove the fact of partnership by evidence and in that evidence one of the piece of evidence may be partnership deed. The partnership deed itself even after its proof can be discarded if facts of the case does not support the creation of partnership. In the matter of tenancy, there is a restriction against parting with the rented premises by the tenant as well as restriction against sub-letting of the premises. In cases of sub-letting or parting with the rented premises by the tenant, the mere production of partnership deed itself may not be of any consequence because it does not bind the landlord. 10. Since, the present suit was the first suit for eviction against the tenant on the ground of default and the trial Court in its Judgment and decree dated 15th Oct., 2001 clearly mentioned that the rent was determined in the suit and, thereafter, rent was deposited in the Court, therefore, the suit for eviction was decreed against the defendant tenant only on the ground of sub-letting and he was given benefit of Sub-section (3) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 for committing default for the first time and decree has been passed for eviction on the ground of default. 11. Learned Counsel for the appellant prays that some time may be granted to the appellant to vacate the premises. 12. 11. Learned Counsel for the appellant prays that some time may be granted to the appellant to vacate the premises. 12. Looking to the facts of the case and since the suit was filed in the year 1977 and time has been consumed till reaching the matter to this Court of almost 27 years, therefore, the appellant can be given some more time to vacate the premises, however, upon furnishing written undertaking before the trial Court within a period of three month from today undertaking that the appellant shall himself hand over the vacant possession of the shop in dispute to the plaintiff by 30th April, 2005 or before that and shall further deposit all arrears of rent, if due within a period of three month from today before the trial Court and shall further pay the mesne profit @ Rs. 275/-per month by 15th day of each calender month till he vacates the premises. In case of default in depositing of rent and payment of monthly rent and in case of default of furnishing the undertaking before the executing Court within the time given, the decree shall become executable. 13. In view of the above, I do not find any merit in this appeal. Hence, the appeal of the appellant is dismissed with above concession.