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2004 DIGILAW 633 (PNJ)

National Education Company v. Estate Officer

2004-05-29

S.S.NIJJAR

body2004
Judgment S.S.Nijjar, J. 1. In this writ petition under Article 226 of the Constitution of India, the petitioners seek the issuance of a writ in the nature of certiorari for quashing the order dated 16.10.1989 (Annexure P-5) passed by respondent No. 1 i.e. the Estate Officer, Chandigarh Administration, Chandigarh, insofar as it relates to the direction for the acceptance of the National Textile Agency (respondent No. 3) as the lessee of the demised premises, namely, ground Floor of SCO No.49, situated in Sector 17-E, Chandigarh (hereinafter referred to as "the premises in dispute"). The petitioners also seek quashing of the order dated 22.5.1990 (Annexure P-7) passed by respondent No. 2 i.e., the Chief Administrator, Chandigarh Administrator, Chandigarh whereby the Appeal/Miscellaneous application of the petitioner No. 1 against the order (Annexure P-5) has been dismissed. The petitioners also pray for the issuance of a writ in the nature of Mandamus directing the respondents to treat the petitioners as the lessees of the premises in dispute. 2. The parties have exchanged elaborate pleadings, from which the essential facts for the adjudication of the controversy in the present writ petition have been culled out. 3. Petitioner No. 2 Salek Chand Jain son of Shri Kundan Lal Jain, had been carrying on the business of selling Sports goods and allied products at Chandigarh since July, 1961 under the name and style of M/s National Educational Company (petitioner No. 1), which was a sole proprietorship concern owned by petitioner No. 2. 4. The demised premises were allotted to petitioner No. 1 by respondent No. 1 vide office memo dated 30.4.1964, initially for a period of five years at the rate of Rs. -750.00 p.m. The petitioners took possession of the demised premises in May, 1964. A leasedeed was executed between petitioner No. 2 and respondent No. 1 on 10.5.1968. The petitioner had started business in the demised premises almost four years earlier in July, 1964. The lease of the demised premises was renewed in favour of petitioner No. 1 in the month of May, 1969 for a further period of five years at the enhanced rate of Rs. 900.00 per month. Thus, petitioner No. 1 continued to be in exclusive possession as lessee of the demised premises. The lease of the demised premises was renewed in favour of petitioner No. 1 in the month of May, 1969 for a further period of five years at the enhanced rate of Rs. 900.00 per month. Thus, petitioner No. 1 continued to be in exclusive possession as lessee of the demised premises. On 20.3.1971, petitioner No. 2 entered into a partnership with S/Shri Boota Ram Gulati son of Harbhagwan Dass, Harbans Lal son of Haveli Ram and Tirath Ram son of Shri Arjan Dass, for the purpose of carrying on the business of selling cloth and textile goods in the name of M/s National Textile Agency in the ground floor of the SCO. The partnership continued upto 31.3,1972. On 4.4.1972, the partnership business underwent a further change by inclusion of S/Shri Iqbal Rai son of Haveli Ram, Baldev Raj son of Boota Ram and Om Parkash son of Tirath Ram as partners. The new partnership came into existence between the 7 persons i.e. petitioner No. 2, the three partners mentioned in the partnership deed dated 20.3.1971 and the three new partners mentioned above. The aforesaid partnership business continued till 31.3.1984. Shri Tirath Ram of the original partnership retired from the partnership business and was replaced by Smt. Rashmi Gulati wife of Shri Satish Gulati, who was a grand son of Shri Boota Ram. The new partnership continue upto 31.3.1987. By Dissolution deed dated 11.5.1987, Boota Ram, Harbans Lal, Iqbal Rai, Baldev Raj and Smt. Rashmi Gulati retired from the partnership firm. Thereafter, the partnership business in the name of M/s National Textile Agency was carried on by petitioner No.2 and Om Parkash w.e.f. 1.4.1987. 5. On 27.8.1971, an order of resumption was passed on the ground that petitioner No. 1 being the lessee of the demised premises had sub-let the same to respondent No. 3. Petitioner No. 1 filed an appeal against the order dated 27.8.1971 which was set aside by respondent No. 2 vide order dated 29.4.1972 (Annexure .P-3). The case was remanded back to respondent No. 1 for deciding two issues which had been formulated by respondent No. 2 as follows:- "(a) that the lease deed executed prohibited partnership deed entered into and (b) that in view of the High Court ruling cited above, partnership deed entered into, does not amount to sub-letting. 6. The case was remanded back to respondent No. 1 for deciding two issues which had been formulated by respondent No. 2 as follows:- "(a) that the lease deed executed prohibited partnership deed entered into and (b) that in view of the High Court ruling cited above, partnership deed entered into, does not amount to sub-letting. 6. No proceedings were taken by respondent No. 1 in compliance of the order dated 29.4.1972 (Annexure P-3) till 18.8.1989 when a notice was issued to petitioner No. 1 to appear before respondent No. 1 on 19.9.1989 along with documentary evidence, which petitioner No. 1 may like to produce. Petitioner No. 2 could not put in appearance before respondent No. 1 on account of adverse circumstances as the brother-in-law of petitioner No. 2 had been murdered in April, 1989 and the wife and son of his brother-in-law had received serious multiple injuries during the murderous attack. Thereafter, petitioner No. 2 remained occupied with the treatment of the injured. Om Parkash, the continuing partner with petitioner No. 2 in the partnership concern, respondent No. 3, took advantage of the adverse circumstances of petitioner No. 2 and filed an application before respondent No. 1 on 3.10.1989 in which he prayed that the partnership firm-respondent No. 3 be accepted as the direct lessee of the demised premises. Respondent No. 1 had no authority and jurisdiction to entertain the application dated 3.10.1989 filed by Shri Om Parkash, as the partnership Firm, M/s National Textile Agency was entirely a different entity in the eye of law. It was being projected as a sub-tenant of petitioner No. 1 who was rightly described as a lessee of the demised premises. No notice of the application filed by Om Parkash was issued by respondent No.1 to the petitioners. Respondent No. 1 passed the order dated 16.10.1989 (Annexure P-5) and held that there was no sub-letting of the demised premises by petitioner No. 1 in favour of National Textile Agency. The two issues framed by the Chief Administrator, respondent No. 2 in its order dated 29.4.1972 (Annexure P-3) were decided in favour of the petitioners. Respondent No. 1 passed the order dated 16.10.1989 (Annexure P-5) and held that there was no sub-letting of the demised premises by petitioner No. 1 in favour of National Textile Agency. The two issues framed by the Chief Administrator, respondent No. 2 in its order dated 29.4.1972 (Annexure P-3) were decided in favour of the petitioners. At the same time, the order also accepts National Textile Agency, respondent No. 3 as a direct lessee of respondent No. 1.Aggrieved against the order (Annexure P-5), insofar as it relates to the acceptance of the National Textile Agency (respondent No. 3) as the direct lessee, petitioner No. 1 filed an appeal (Annexure P-6) before respondent No. 2 on 18.12.1989. By order dated 22.5.1990 (Annexure P-7), it was held that M/s National Educational Company which no longer existed, could not be revived after coming into being of a new firm under the name and style of National Textile Agency. Therefore, the question of treating the National Educational Company as the lessee does not arise. The appeal filed by the petitioner was held to be not maintainable. However, the appeal was treated as a Miscellaneous application and the order passed by the Estate Officer was upheld. 7. The respondents have filed separate written statements. Respondent No. 1 has stated that petitioner No. 2 had himself converted his concern into partnership, firm under the name and style of M/s National Textile Agency. He had given this information to the Estate Officer in response to the notice dated 26.7.1971. In his reply dated 9.8.1971 (Annexure R-1), he had categorically stated that the premises had not been sublet and he is carrying on business therein under the name and style of National Textile Agency. He had also stated that by reason of his having started a new business some one interested in causing harm to his business wrongly reported that the shop in question has been sublet by him. 8. Respondent No. 3 in his written statement has taken preliminary objections stating therein that the petitioners have no locus standi to file the present writ petition. The fresh lease deed in the name of M/s National Textile Agency has been permitted to be executed on the request made by petitioner No. 2. In fact the fresh lease deed at the enhanced rate of rent had already been executed in favour of M/s National Textile Agency on 19.10.1989. The fresh lease deed in the name of M/s National Textile Agency has been permitted to be executed on the request made by petitioner No. 2. In fact the fresh lease deed at the enhanced rate of rent had already been executed in favour of M/s National Textile Agency on 19.10.1989. Both respondent No.1 and respondent No. 3 have taken the objections that the petition is liable to be dismissed as the petitioners have not exhausted alternative remedy of revision as provided under Section 10(4) of the Capital of Punjab (Development and Regulation) Act, 1952 (hereinafter referred to as the Act), before the Adviser to the Administrator exercising the powers of the Central Government. Respondent No.3 has also pleaded that the petition deserves to be dismissed as the petitioners have not approached the Court with clean hands. The petitioners have intentionally withheld the most material fact from this Court to the effect that in pursuance of the impugned order (Annexure P-5) registered lease-deed was executed in favour of respondent No. 3 and duly registered on 19.10.1989! Had this fact been disclosed, no interim order would have been passed by this Court & the petition would have been dismissed in limine. The writ petition was admitted on 12.10.1990 when execution of the lease-deed by the alleged sub-tenant was stayed. The next preliminary objection raised by respondent No. 3 is that the writ petition is liable to be dismissed on the ground that it raises disputed questions of facts arising out of contractual obligations. On merits, it is submitted that the petitioners have no right to file the writ petition as M/s National Textile Agency was created by petitioner no:2 himself as is clear from the letter dated 9.8.1971 written by petitioner No. 2 to the Estate Officer, Chandigarh. It is further stated that Shri Om Parkash appeared before the Estate Officer on behalf of National Textile Agency on the asking of petitioner No. 2 as the business was being carried on jointly in partnership with one another. It is categorically denied that there was any murder in the family of petitioner No. 2 or that, he remained occupied with any treatment. The allegations are said to be "a bunch of lies". The application was filed before the Estate Officer requesting the Estate Officer to accept respondent No. 3 as the lessee of the premises. It is categorically denied that there was any murder in the family of petitioner No. 2 or that, he remained occupied with any treatment. The allegations are said to be "a bunch of lies". The application was filed before the Estate Officer requesting the Estate Officer to accept respondent No. 3 as the lessee of the premises. This was done on the asking of and jointly with petitioner No. 2 as he had earlier also said so in the letter dated 9.8.1971 (Annexure R-1). 9. The petitioners have filed two separate replications controverting the stand taken by the respondents in their separate written statements. 10. Initially, National Textile Agency was not impleaded as a party. Civil Misc. No.3530 of 1991 was filed under Order 1 Rule 10 read with Section 151 CPC with a prayer that National Textile Agency through Om Parkash be impleaded as respondent No.3. The application was supported by an affidavit. The lease executed between the M/s National Textile Agency and the Estate Officer dated 19.10.1989 was attached as Annexure A-1 to the application. In reply to the application, the petitioners have claimed that National Textile Agency was constituted by petitioner No. 2 and Shri Om Parkash as partners w.e.f. 1.4.1987. It was also pleaded that after 1.4.1987 a suit for partition and rendition of accounts of the Finn had been filed by petitioner No.2 in the Civil Court which is pending in the Court of Senior Sub Judge, Chandigarh. It was also stated that in that suit, a prayer for directing the defendant. Shri Om Parkash to deliver vacant possession of the premises in which business of M/s National Textile Agency was carried on had also been made. It was stated that at best, Om Parkash could be impleaded as a respondent in his individual capacity, but the application for impleading National Agency as respondent No.3 is liable to be dismissed. The application was, however, allowed and National Textile Agency was directed to be impleaded as respondent No. 3, by order dated 22.7.1991. 11. During the pendency of the writ petition , respondent No. 3 filed CMA No.5853 of 1995 for bringing on record copy of the plaint in Civil Suit No.21/15.1.1991 of 1990 for dissolution of partnership with National Textile Agency filed by respondent No. 2. 11. During the pendency of the writ petition , respondent No. 3 filed CMA No.5853 of 1995 for bringing on record copy of the plaint in Civil Suit No.21/15.1.1991 of 1990 for dissolution of partnership with National Textile Agency filed by respondent No. 2. It was stated that in the plaint, it was the categoric case of the petitioners that the firm M/s National Textile Agency still continued and the same was sought to be dissolved by filing of the suit. There was no reference to any dissolution deed dated 11.5.1987 in the Civil suit. The impugned order dated 16.10.1989 (Annexure P-5 with the writ petition) was also challenged in the civil suit. The suit was dismissed in default on 22.1.1992. The dismissal of the suit goes to show that even the petitioners have accepted the fact that M/s National Textile Agency still continues to be in existence and has not been dissolved. Furthermore, the dismissal of the suit bars the present writ petition on the principles of res judicata. The petitioners had filed a reply to the application. By order dated 11.7.1995, the application was directed to be heard with the main case. Keeping in view the facts and circumstances of the case, I am of the opinion that the application has to be allowed as perusal of the plaint would be necessary for a proper adjudication of the points raised in the writ petition. CMA No.5835 of 1995 is, therefore, allowed and the plaint in the Civil Suit No.21/15.1.1991 of 1990 is taken on record as Annexure R3/1. 12. I have heard the learned counsel for the parties at length and perused the paper book. 13. Mr. M.S. Jain, learned Senior counsel appearing on behalf of the petitioners has submitted that the demised premises was allotted to petitioner No. 1 for five years. A lease deed was duly executed on 10.5.1968. It was provided that the lease would be renewable for another five years with 20% increase in the rent. Clause 13 of the leasedeed (Annexure P-1) provided as follows;- "13. The lessee/s shall not sublet the said building or any part thereof or transfer his right under this lease either directly or indirectly." 14. A show-cause notice was issued to the petitioners on 26.7.1971 alleging therein that the petitioners had sub-let the demised premises in violation of the terms of the lease-deed. The lessee/s shall not sublet the said building or any part thereof or transfer his right under this lease either directly or indirectly." 14. A show-cause notice was issued to the petitioners on 26.7.1971 alleging therein that the petitioners had sub-let the demised premises in violation of the terms of the lease-deed. Petitioner No. 2 submitted the reply on 9.8.1971. Inspite of the explanation having been given, the Estate Officer passed a wholly illegal order on 27.8.1971 cancelling the lease and directing petitioner No. 2 to hand over the demised premises immediately. In case of non-delivery of possession, the damages were fixed at the rate of Rs. 5,000/- per month. The petitioners filed an appeal before respondent No. 2 claiming that there had been no breach of the conditions of the lease-deed. Business constraints, however, made it imperative for the petitioners to enter into partnership for running the business of the sale of textile. The Estate Officer, without granting any opportunity of hearing to the petitioners, passed the order of cancellation of lease. Respondent No. 2 had directed the two issues which had been framed to be decided by the Estate Officer. Since the matter had been remanded back to the Estate Officer, the petitioners did not care to challenge the same by way of revision petition before the Central Government. However, while deciding the two issues, the Estate Officer has exceeded his jurisdiction by accepting National Textile Agency as a direct lessee of the Estate Office. Having held that there was no breach of the lease-deed, no further order was required. Since the Estate Officer had exceeded its jurisdiction, the petitioner was again constrained to approach the Chief Administrator by way of appeal under Section 10(1) of the Act. The appellate Authority had erred in law in holding that the appeal was not maintainable and treating the appeal as a Miscellaneous petition. According to Mr. Jain, learned Senior Counsel, the order passed by the Chief Administration dated 22.5.1990 is wholly without jurisdiction as National Educational Company, the original lessee could not be substituted by National Textile Agency. In support of the aforesaid submission, learned Sr. Counsel for the petitioners has submitted that a sub-tenant cannot be permitted to be inducted as a direct tenant as the status of the sub-tenant would be inferior to that of the tenant. In support of the aforesaid submission, learned Sr. Counsel for the petitioners has submitted that a sub-tenant cannot be permitted to be inducted as a direct tenant as the status of the sub-tenant would be inferior to that of the tenant. In support of the submission, learned Senior Counsel relies on a judgment of the Supreme Court rendered in the case of Arm Group Enterprises Ltd. v. Waldorf Restaurant and Ors., (2003)6 Supreme Court Cases 423. 15. Mr. M.L. Sarin, learned Senior Counsel appearing for the respondents submitted that initial order was passed by the Estate officer on the asking of petitioner No. 2. He cannot now be permitted to argue that the aforesaid order was in any manner illegal. In the letter dated 9.8.1971, petitioner No. 2 has stated that he was carrying on business therein under the name and style of "National Textile Agency". This assertion was made by petitioner No. 2 fully accepting respondent No. 3 as the new partnership firm and that there was no sub-letting. It was also accepted by petitioner No. 2 that the lease could not be cancelled as there had been no breach thereof. Mr. Sarin, learned Senior Counsel further submitted that even when the matter was argued before the Chief Administration, it was maintained that there was no subletting and that the names of all the partners ought to be entered into as lessees. This is apparent from paragraph 7 of the order (Annexure P-3) dated 29.4.1972. It was only in that context that the two issues were framed by respondent No. 2 to be determined by respondent No. 1 after hearing the parties. According to Mr. Sarin, the petitioners are now estopped from challenging the orders passed by respondents. Mr. Sarin, thereafter made reference to the plaint filed in the Civil Suit and submitted that the same plea is put forward in paragraph 11 of the suit with regard to Om Parkash being a continuing partner in M/s National Textile Agency and taking advantage of the adverse circumstances of petitioner No. 2. It is also pleaded in paragraph 13 that the directions made by the Estate Officer in his order dated 16.10.1989 to the effect that the National Textile Agency is accepted as lessee is null and void and without jurisdiction as the Estate Officer had no authority to enter the application dated 3.10.1989. It is also pleaded in paragraph 13 that the directions made by the Estate Officer in his order dated 16.10.1989 to the effect that the National Textile Agency is accepted as lessee is null and void and without jurisdiction as the Estate Officer had no authority to enter the application dated 3.10.1989. It was also pleaded that since the directions could have been issued on the application dated 3.10.1989, without affording an opportunity to the plaintiff who is the lessee of the demised premises to contest and oppose that application. Mr Sarin made a reference to the prayer Clause in the civil suit which may be reproduced at this stage as follows:- "It is, therefore, respectfully prayed that a preliminary decree for dissolution of partnership may be passed in favour of the plaintiff and against the defendant. A Receiver for the rendition of accounts of the partnership business be appointed, and after ascertaining the amount due to the plaintiff, a final decree for the recovery of amount due to the plaintiff of his share in the partnership business and on account of damages for the wrongful use and occupation of the premises with effect from 3.10.1989, be passed in favour of the plaintiff and against the defendants, A decree for vacant possession of the ground floor of SCO No.49, Sector-B, Chandigarh may also be passed in favour of plaintiff and against the defendant. Costs of the suit may also be awarded to the plaintiff and against the defendant. Any other relief, to which the plaintiff is found entitled, may also be granted." 16. On the basis of the above, Mr. Sarin submits that the writ petition deserves to be dismissed as barred on the principles of analogous to res judicata/constructive res judi-cata. In support of the submission, learned Sr. counsel relied on a Full Bench decision of this Court in the case of Teja Singh v. The Union Territory of Chandigarh, (1982)84 P.L.R. 160. 17. In reply, Mr. Jain, learned Senior Counsel has submitted that Order 9 Rule 9 of the CPC would not be applicable in the present case as the suit had been dismissed without any reply having been filed. 18. Mr. Sarin also submitted that the writ petition deserves to be dismissed as it involves adjudication of complicated and disputed questions of fact. Jain, learned Senior Counsel has submitted that Order 9 Rule 9 of the CPC would not be applicable in the present case as the suit had been dismissed without any reply having been filed. 18. Mr. Sarin also submitted that the writ petition deserves to be dismissed as it involves adjudication of complicated and disputed questions of fact. In support of the aforesaid submission, learned Senior counsel has relied on a judgment of the Supreme Court rendered in the case of State of Madhya and others v. M.V. Vyavsaya & Co.,3 A.I.R. 1997 Supreme Court 993. 19. On merits, learned counsel Senior counsel appearing for the petitioners submitted that question of law as to whether there was any subletting in favour of respondent No. 3 is no longer res integra, in view of the law laid down by the Supreme Court in the case of Murli Dhar v. Chuni Lal and Ors. 1970 All India Rent Control Journal 922. 20. On facts Mr. Sarin, learned Senior Counsel, submitted that petitioner No. 2 had already accepted the benefits under the new partnership. He had accepted a sum of Rs. 5,000/- in the year 1971. He had admittedly closed the business of M/s National Educational Company which was a sole proprietorship firm of petitioner No. 2. He had entered into a valid partnership with the new partners and established the firm under the name and style of M/s National Textile Agency. 21. I have considered the submissions made by the learned counsel for the parties. It is undoubtedly true that initially, the lease of the premises in dispute was granted in favour of M/s National Textile Agency w.e.f 6.5.1964, although the lease document was executed on 5.4.1968. It is also an accepted fact that petitioner No. 2 was the sole proprietor of the aforesaid firm. He voluntarily closed down the aforesaid business. In the month of May 1969, the lease of the premises in dispute was renewed for a period of five years at the enhanced rate of Rs. 900.00/- per month. Clause 13 of the lease-deed provided that the lessee shall not sublet the building or any part thereof or transfer his right under the lease either directly or indirectly. In the month of May 1969, the lease of the premises in dispute was renewed for a period of five years at the enhanced rate of Rs. 900.00/- per month. Clause 13 of the lease-deed provided that the lessee shall not sublet the building or any part thereof or transfer his right under the lease either directly or indirectly. Inspite of the aforesaid clause, petitioner No. 2 entered into a partnership with Shri Boota Ram Gulati and some other persons whose names are given in the earlier part of this judgment for the purpose of carrying on the business of selling cloth and textile goods in the name of M/s National Textile Agency in the demised premises. Petitioner No. 2 voluntarily closed down the earlier business, entered into a new partnership and even changed the nature of the business. Earlier, petitioner No. 2 was the sole proprietor of a firm selling sports goods and allied products. Now the petitioner No. 2 along with his partner in the new firm was selling clothes and textiles. Some one made a complaint against petitioner No. 2 stating that petitioner No. 2 had acted in breach of the terms of the lease. Taking cognisance of the complaint, the Home Secretary, Chandigarh Administration vide his Memo dated 13.7.1971 wrote to the Deputy Commissioner-cum-Estate Officer (respondent No. 1) that a secret enquiry be made through the police. It was discovered that petitioner No.2 had closed down the earlier business of selling sports goods and allied products and had entered into a partnership deed with M/s Gulati Stores of Sector 22, Chandigarh for staring a new whole-sale/retail cloth business under the name and style of M/s National Textile Agency, It was also discovered that M/s Gulati Stores had paid Rs. 25,000/- as Pagri to petitioner No. 2. The partnership deed had been executed as noticed earlier. The Estate Officer, therefore, Issued show-cause notice to the petitioner No. 2 on 26,7.1971. Petitioner no,2 by his letter dated 9,8,1971 denied the allegations of having sublet the premises in dispute. In his reply dated 9,8.1971 (Annexure R-1), petitioner no,2 inter alia, stated as under:- "... The partnership deed had been executed as noticed earlier. The Estate Officer, therefore, Issued show-cause notice to the petitioner No. 2 on 26,7.1971. Petitioner no,2 by his letter dated 9,8,1971 denied the allegations of having sublet the premises in dispute. In his reply dated 9,8.1971 (Annexure R-1), petitioner no,2 inter alia, stated as under:- "... The shop premises have not been sub-let and I am carrying on business therein under the name and style of M/s National Textile Agency, It appears that by reason of my having started a new business some one interested in causing harm to my business wrongly reported that the shop in question has been sub let by me. It is, however, not correct. The possession of the shop has not been transferred to any one by way lease or otherwise. At present the fittings and furniture is being got set up and the premises are being got furnished afresh. There is no question of my sub-letting out the premises. The complaint is motivated and requires to be filed. I would be grateful if I am given a personal hearing before proceeding further for any action in the complaint in question. Thanking you, Yours faithfully, Sd/- S.C.Jain, 9.8.1971." 22. Petitioner No. 2 was called for hearing. After not finding any substance in the submissions of petitioner no,2, respondent No. 1 by its order dated 27.8.1971, cancelled the lease which stood in the name of M/s National Educational Company, petitioner No. 1. From the above it becomes apparent that petitioner No. 2 accepted that M/s National Textile Agency (respondent No. 3) were carrying on business in the demised premises. Petitioner No. 2 was one of the partners of respondent No. 3. It is also an accepted fact that the new partnership with Mr. Gulati and others continued upto 31.3.1972. On 4.4.1972, partnership business underwent a further change. Petitioner No. 2 continued to be a common partner throughout. With change of partners, respondent No. 3 partnership firm continued upto 31.3.1987, Thereafter, the partnership business was carried on by petitioner No. 2 and Om Parkash w.e.f. 1.4,1987. In the meantime, petitioner No. 2 had filed an appeal before the appellate authority-respondent No. 2 challenging the order dated 27.8.1971 passed by respondent No. 1. The appellate authority notices the plea raised by petitioner no,2 that he had executed the lease deed dated 29,4.1971. In the meantime, petitioner No. 2 had filed an appeal before the appellate authority-respondent No. 2 challenging the order dated 27.8.1971 passed by respondent No. 1. The appellate authority notices the plea raised by petitioner no,2 that he had executed the lease deed dated 29,4.1971. He wanted to set up the business as a cloth merchant. Since sufficient capital was needed for this purpose, he entered into partnership with three other persons so as to commence the business. The constraints of funds made it imperative for him to enter into partnership for running of business of the sale of cloth and textile. It was argued that there had been no sub-letting, On the other hand, the representative of the Estate Officer had argued that according to the lease deed the lessee cannot go into partnership with other party for starting the business and to get capital for the same. Petitioner no,2 had received Rs,6,000/- per month as profit from the business and partnership as provided in the lease deed submitted before the Estate Officer by petitioner No. 2 on 27.8.1971. The appellate authority notices that a fresh lease was executed with the Government on 29.4.1971 whereas the partnership was entered into on 20.3.1971. The appellate authority categorically noticed that petitioner No. 2 should have brought this fact to the notice of the Estate Officer at the time of renewal of the lease. On the basis of the accepted facts, it was argued on behalf of petitioner No. 2 that according to the judgment rendered by this Court in the case of Ajit Singh v. Gian Sigh and Ors. (1956)58 P.L.R. 124 and the judgment dated 3.1.1956 rendered in Civil Misc. No.799 of 1956, entering into a partnership did not amount to subletting of the premises. In view of this submission, the Chief Administrator, the Appellate Authority directed as follows:- "7. The appellant may appear before the Estate Officer to establish either that the partnership does not amount to sub-letting or may have the names of all the partners entered into as lessees in accordance with law. 8. The Estate Officer may decide the question that does not conclusively decide two issues:- (a) that the lease deed executed prohibited partnership deed entered into; and (b) that in view of the High Court ruling cited above, partnership deed entered into does not amount to sub-letting," 23. 8. The Estate Officer may decide the question that does not conclusively decide two issues:- (a) that the lease deed executed prohibited partnership deed entered into; and (b) that in view of the High Court ruling cited above, partnership deed entered into does not amount to sub-letting," 23. This order was not challenged by petitioner No. 2 by way of a revision before the Central Government. It appears that for a number of years, no proceedings were taken on the directions issued by the appellate authority. On 18.8.1989, notice (Annexure P-4) was issued to petitioner No. 1 to appear before respondent No. 1 on 19.9.1989 along with documentary evidence which petitioner No. 1 may like to produce. Mr. Jain, learned Senior Counsel submitted that the aforesaid notice had been issued to the M/s National Educational Company. In the absence of petitioner No. 2, the notice was accepted by Om Parkash. Petitioner No. 2 never appeared before the Estate Officer, respondent No. 1, Petitioner No. 2 has been deprived of valuable lease hold rights on misrepresentation made by Om Parkash before the Estate Officer. 24. It is further submitted that on 3,10.1989 Om Parkash made an application in which he prayed that partnership of respondent No. 3 be accepted as the direct lessee of the demised premises. Learned Senior Counsel appearing for the petitioners further submitted that although the Estate Officer came to the correct conclusion that the conditions of lease had not been violated as it was not a case of subletting, yet respondent No. 1 exceeded its jurisdiction by accepting National Textile Agency as lessee of the demised premises. I find these submissions to be devoid of all merit. Petitioner no,2 has himself been claiming that there has been no subletting, In fact even in this Court, Mr. Jain, learned Senior Counsel appearing for the petitioners has vehemently argued that there is no sub-letting, yet learned Senior Counsel has relied on the judgment of the Supreme Court in the case of Arm Group Enterprises (supra) that a sub-tenant cannot be inducted as a direct tenant. Throughout the claim of petitioner No. 2 has been that there is no subletting. Petitioner No. 2 has accepted the findings of the Estate Officer that there is no sub-letting. Throughout the claim of petitioner No. 2 has been that there is no subletting. Petitioner No. 2 has accepted the findings of the Estate Officer that there is no sub-letting. Therefore, it cannot now be argued on behalf of petitioner No. 2 that National Textile Agency being a sub-tenant cannot be inducted as a direct lessee of the Estate Office. Therefore, the judgment of the Supreme Court in the case of Arm Group Enterprises Ltd. (supra) would be of no assistance to the case set up by petitioner No. 2, In that case, the appellant, referred to by the Supreme Court as the landlord, had acquired from the original owner the title to Building No. 2 of which certain area of the ground floor was the leased premises in dispute between the parties. Previous owner of the premises obtained a compromise decree of eviction on 27.4.1955 against the tenant in the leased premises. WALDORF restaurant being run by a registered partnership firm claimed the status of sub-tenant under the original tenant and sought protection against eviction in execution of the compromise decree obtained against the tenant by the landlord under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. Inspite of the compromise decree, vacant possession was not delivered to the landlord. The proceedings for eviction filed by the landlord against the sub-tenant ultimately reached the Supreme Court and it was held that since a statutory tenant has merely a personal right to protect his possession and has no estate or interest in the premises occupied by him, he cannot convey a estate or interest which he does not possess. Statutory tenant by parting with the possession forfeits the protection of the Act, Waldorf Restaurant had contested the suit by taking a plea that before surrender by the tenant of its tenancy w.e.f. 31.8.1953, the tenant had inducted on 1.7.1953 Eng. Chick Wong being the sole proprietor of Waldorf Restaurant. Later on the above named sole proprietor formed a partnership with two others. Chick Wong being the sole proprietor of Waldorf Restaurant. Later on the above named sole proprietor formed a partnership with two others. The partnership firm of three partners above named was registered on 1.3.1954 i.e. much after the surrender of the tenant w.e.f, 31.8.1953, The suit was dismissed by a Single Judge of the Calcutta High Court on the ground that the same is barred by provisions of Section 47 of the Code of Civil Procedure and that the dispute in the suit can be decided in proceedings for execution of the compromise deed. There was a counter suit filed by the sub-tenants seeking injunction to restrain the landlord from executing the compromise decree against the firm. After protracted litigation, learned Single Judge of the Calcutta High Court held that the Firm could not have been inducted as a tenant on 1.7.1953 as the partnership firm was registered on 1.3.1954. The learned Single Judge, therefore, came to the conclusion that the firm cannot claim status of a protected tenant directly under the landlord under the provisions of Section 13(2) of the Act of 1950. Considering the aforesaid facts, the Supreme Court held as follows:- "31. Waldorf Restaurant is merely a trade name. It is not a legal person and has no existence independent of the proprietor who initially carried on business in that trade name in the suit premises as sub-tenant and later on by joining as partner of the firm registered in the same trade name. The present firm (comprising totally new partners) has not disputed the fact that on 1.7.1953 the tenant (Atlenberry & Co.) had sub-let the suit premises to Eng. Chick Wong as sole proprietor of Waldorf Restaurant. 32. On this undisputed fact, the erstwhile sole proprietor of Waldorf Restaurant, namely, Eng Chick Wong could alone claim status of a direct tenant, under the landlord on termination of tenancy of the original tenant. The crucial question, however is whether the present partnership firm, in which the erstwhile proprietor Eng, Chick Wong was a partner and has now cased to be so, can claim direct tenancy in its favour under the landlord on surrender of tenancy by Allenberry & Com. The crucial question, however is whether the present partnership firm, in which the erstwhile proprietor Eng, Chick Wong was a partner and has now cased to be so, can claim direct tenancy in its favour under the landlord on surrender of tenancy by Allenberry & Com. As we have noted above, the tenancy was surrendered on 31.8.1953 and as has been held by this Court in the case of another sub-tenant Happy Homes (P) Ltd. After surrender of tenancy by the tenant, sub-tenant inducted by a statutory tenant cannot claim status of a direct tenant under the Act of 1950. In the present case, on 1.7.1953, the firm had not become a sub-tenant. The firm (respondent No. 1 herein), therefore, cannot claim status of a direct tenant under the landlord and seek protection of the Act of 1950." 25. These observations make it abundantly clear that the law laid down by the Supreme Court has no application to the facts and circumstances of the present case. In the present case, petitioner No. 2 had himself pleaded that there is no question of subletting as he had changed the business from selling Sports goods to that of being a Cloth merchant. For this purpose, a new partnership deed had been entered into. The earlier business of the National Educational Company had been closed down. In these circumstances, respondent No. 1 has merely put a seal of approval on the request made by petitioner No. 2 that the business which was being carried on the demised premises, had been changed. It was submitted by Mr. Sarin that occupation by a Firm is only occupation by its partners in their individual capacity. The Firm by itself is not a legal entity. In support of the aforesaid submission, the learned Senior Counsel relied on the judgment of the Supreme Court in the case of Murli Dhar (supra). In paragraphs 3 and 4, the Supreme Court observed as under:- "3. It appears that two contentions were raised in the High Court both of which were rejected. The first was that the possession of the premises by new firm proved sub-letting. The contention appears to have been that the old firm and the new firm being two different legal entities, the occupation of the shop by the new firm was occupation by the legal entity other than the original tenant and such occupation proved sub-letting. The first was that the possession of the premises by new firm proved sub-letting. The contention appears to have been that the old firm and the new firm being two different legal entities, the occupation of the shop by the new firm was occupation by the legal entity other than the original tenant and such occupation proved sub-letting. This contention is entirely without substance. A firm unless expressly provided for the purpose of any statutes which is not the case here is not a legal entity. The firm name is only a compendious way of describing the partners of the firm. Therefore, occupation by a firm is only occupation by its partners. Here the firms have a common partner. Hence the occupation has been by one of the original tenants. 4. The other point was that since Meghraj entered into a new partnership with a stranger, there was sub-letting to the new partnership. It seems to us that the point sought to be made was when Meghraj was in possession as the partner of Meghraj Bansidhar, he was in possession of the shop in a capacity different from that in which he was in possession as a partner of Chuni Lal Gherulal. This is clearly fallacious. Meghraj was in possession all through in his individual capacity. It is impossible to treat him as possessing one legal personality as member of one firm and another such personality as member of another firm." 26. The aforesaid observations leave on manner of doubt that petitioner No. 2 continues to be a tenant along with other partners. Therefore, it would not be possible to hold that the order passed by the Estate Officer dated 16.10.1989 has been passed without jurisdiction or is liable to be quashed. As noticed earlier, petitioner No. 2 filed an appeal under Section 10(1) of the Act before the Chief Administrator which has been dismissed by order dated 22.5.1990. I am of the considered opinion that the Chief Administrator has rightly held that the appeal is not maintainable as there is no order of resumption passed against either the petitioners or respondent No. 3. Inspite of that, the appellate authority had considered the matter on merit. It has been held that although the petitioners had pleaded that National Textile Agency had been dissolved, but no deed of dissolution dated 1.4.1987 had been produced. Inspite of that, the appellate authority had considered the matter on merit. It has been held that although the petitioners had pleaded that National Textile Agency had been dissolved, but no deed of dissolution dated 1.4.1987 had been produced. On the other hand, it is an admitted fact that the National Educational Company had stopped doing any business. Therefore, the question of treating the National Educational Company as a lessee did not arise. The petitioner cannot possible wriggle out of the fact that the National Textile Agency has not been dissolved till date. As noticed earlier in the judgment, the petitioner No. 2 had filed a civil suit seeking dissolution of partnership and rendition of accounts. The petitioner No. 2 has also sought vacant possession of the premises. Even the order dated 16.10.1989 had been challenged. It appears that the civil suit had been dismissed in default. Having pleaded in the Civil Court that the National Textile Agency is yet to be dissolved it would not be possible to accept the submission of Mr. Jain that the said agency cannot be accepted as a direct tenant. 27. Mr. Sarin submitted that the writ petition deserves to be dismissed on the ground that it is barred by res judicata. I am unable to accept the aforesaid submission. The suit filed by petitioner No. 2 has been merely dismissed for default. No notice was even issued to respondent No. 3. Therefore, the bar under Order 9 Rule 9 of the CPC would not be applicable. The judgment in the case of Teja Singh (supra) would also not be applicable in the facts and circumstances of the present case as there is no withdrawal of the civil suit. Mr. Sarin had also argued that the writ petition deserves to be dismissed as it involves disputed questions of fact. From the narration of the facts noted above, it would become apparent that the essential facts necessary for the adjudication of the controversy in the present writ petition are not disputed. The only real controversy is as to whether Om Parkash appeared before the Estate Officer on 3.10.1989 as a representative of petitioner No. 2 and respondent No. 3-Firm or in his individual capacity. Petitioner No.2 has throughout admitted that Om Parkash is a continuing partner in the firm-respondent No.2. The only real controversy is as to whether Om Parkash appeared before the Estate Officer on 3.10.1989 as a representative of petitioner No. 2 and respondent No. 3-Firm or in his individual capacity. Petitioner No.2 has throughout admitted that Om Parkash is a continuing partner in the firm-respondent No.2. If that is so, in view of Section 4 of the Indian Partnership Act, 1932, he would be deemed to be a representative of the Firm of which petitioner No. 2 is also a partner. It would not be possible to hold that Om Parkash has misled the Estate Officer in any manner. 28. 1 am of the considered opinion that petitioner No. 2 cannot be granted any relief in this writ petition in view of his earlier conduct. When the demised premises were about to be resumed by the Estate Office, it was pleaded by petitioner No. 2 that he himself continues to occupy the premises but is now engaged in a different business i.e. sale of cloth and Textiles as opposed to sale of Sports goods. He made every effort to avoid the cancellation of the lease by pleading that he continues to be the tenant. He even executed different instruments continuing the partnership firm with each partner at different stages. Even when the order was passed on 29.4.1972, petitioner No. 2 did not raise any objection to the matter being remanded back to respondent No. 1. Even till now, the Firm National Textile Agency, respondent No. 3, has not been dissolved. Petitioner No. 2 filed the civil suit, but permitted the same to be dismissed in default. From the above it becomes rather obvious that petitioner No.2 is continuing the litigation for extraneous considerations, I am of the opinion hat petitioner No.2 has not come to Court with cleans hands, and therefore, no relief can be granted to the petitioners. 29. In view of the above, I find no merit in the writ petition and the same is hereby dismissed. No costs.