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2005 DIGILAW 1200 (PNJ)

Ashok Kumar v. Partap Singh

2005-11-23

S.S.SARON

body2005
Judgment S.S.Saron, J. 1. This revision petition has been filed Under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (Act - for short) against the order dated 26.7.1991 passed by the Appellate Authority, Ludhiana, whereby the appeal of the tenant-petitioner against the order dated 01.02.1990 passed by the learned Rent Controller, Samrala has been dismissed. 2. The facts of the case are that the landlord-respondent earlier filed a petition Under Section 13 of Act on the ground of non-payment of rent by the tenant-petitioner and that the shop was needed by him for his personal use. The latter ground was abandoned. The tenant-petitioner tendered the arrears of rent on the first date of hearing and the earlier petition was disposed of as having become infructuous by the learned Rent Controller, Samrala on 20.03.1986. Thereafter, the landlord-respondent filed the second petition on 22.05.1987 for seeking ejectment of the tenant-petitioner on the ground that the tenant-petitioner had sublet the shop in question to proforma respondent No. 2, Rakesh Kumar. The relationship between tenant-petitioner and the landlord-respondent No. 1 is admitted. 3. On notice, the tenant-petitioner and respondent No. 2 put in appearance and filed their separate written statements. It was contended that the second petition was not maintainable as the earlier petition had been dismissed on 20.03.1986. The tenant-petitioner denied the factum of subletting the shop in question to respondent No. 2, It was pleaded by the tenant-petitioner that respondent No. 2 is his partner and as such, there is no question of subletting the shop to him. It was pleaded that there was a partnership deed which was entered into on 28.04.1987. Both the Rent Controller and the Appellate Authority have allowed the ejectment petition and ordered the ejectment of the petitioner and respondent No. 2 from the demised premises. The said orders are assailed in this petition by the tenant-petitioner. 4. Learned Counsel for the petitioner submits that the Rent Controller as well as the Appellate Authority have erred in considering the facts and circumstances of the case. It is contended that whenever an allegation of subletting the tenancy is made, it has to be established by the landlord that the tenant has parted with the exclusive possession of the premises in lieu of compensation or rent. It is contended that whenever an allegation of subletting the tenancy is made, it has to be established by the landlord that the tenant has parted with the exclusive possession of the premises in lieu of compensation or rent. In the case in hand, it is contended that the landlord-respondent has not led any evidence whatsoever as to whether any compensation or rent has been paid to the petitioner by the alleged sub-tenant. There is nothing to prove the payment of any consideration. Therefore, the ingredients of sub-tenancy, it is contended, have not been proved by the respondent. It is also contended that the Authorities under the Act have erred in not relying upon the partnership deed (Exh. R-1). The said partnership deed, it is contended is legal and valid and shows that there has been no subletting on the part of the petitioner. It is submitted that the petitioner and the respondent No. 2 along with their father were jointly running the shop in question and even after Ashok Kumars appointment as government servant, the shop in question was run jointly by all the three. The income derived from the partnership, it is contended is joint income of the family. 5. In response, learned Counsel for the respondent has contended that the Authorities below have passed just and appropriate orders and same warrant no interference in exercise of the revisional jurisdiction of this Court. It is contended that the shop in question was given to the tenant-petitioner vide rent note dated 10.01.1980 (Exh. A-2). Thereafter, the tenant-petitioner joined government service as Revenue Patwari on 23.04.1987. It is, thereafter, that the tenant-petitioner executed a partnership-deed on 28.04.1987 (Exh. R-1), The said partnership-deed, it is contended is only a camouflage to avoid the eviction on the ground of subletting. It is contended that the tenant-petitioner could not possibly have conducted the partnership business, on his becoming a Government employee. Therefore, the partnership-deed (Exh. R-1) being a sham transaction, the revision petition is liable to be dismissed. 6. I have given my thoughtful consideration to the contentions of learned Counsel appearing for the parties. It may appropriately be noticed that the rent note dated 10.01.1980 (Exh. A-2) was entered into between the parties and was signed by the tenant-petitioner for a period of 10 months. 6. I have given my thoughtful consideration to the contentions of learned Counsel appearing for the parties. It may appropriately be noticed that the rent note dated 10.01.1980 (Exh. A-2) was entered into between the parties and was signed by the tenant-petitioner for a period of 10 months. One of the terms of the said rent note is that without the consent of the landlord, the shop will not be further given on rent. It is not in dispute that the tenant-petitioner was appointed as Revenue Patwari on 23.4.1987. Thereafter, the partnership-deed dated 28.4.1987 (Exh. R-1) was entered into between the tenant-petitioner, his father Om Prakash and his brother Rakesh Kumar. In terms of the said partnership deed, Om Parkash is a 50% partner and Rakesh Kumar and Ashok Kumar, petitioner are 25% partners each. One of the objections that has been raised by learned Counsel for the landlord-respondent is that the said partnership is an unregistered deed. The learned Appellate Authority considered the effect of the partnership deed as also the evidence on record and held that the shop in question has been sub-let. It is appropriate to note that initially, the shop was taken on rent only by Ashok Kumar tenant petitioner in pursuance of rent note dated 10.01.1980. (Exh. A-2) and it is, thereafter, that his father and brother were joined as partners and that too when the petitioner had joined service, only a few days earlier. The evidence of Partap Singh, PW-2 was considered, who stated that Ashok Kumar, tenant-petitioner had sublet the shop in dispute to his brother Rakesh Kumar, respondent No. 2 and that at the time of deposition, Raksh Kumar carried on the business in the shop in dispute. Besides, the shop in dispute remained closed for one month before it was sublet to Rakesh Kumar. Dewan Singh, AW-3 had also deposed that the tenant-petitioner was the tenant in the shop previously and thereafter, Rakesh Kumar and his father were sitting at the shop in dispute for the last 2 years. The contention of learned Counsel for the petitioner is that there is nothing to show that the tenant-petitioner had parted with the exclusive business and possession of the shop and that he has continued as a partner and in case, there is any violation of the Government rules, then it is for the Government to take action in this regard. 7. 7. In my view, the said contention of the learned Counsel for the petitioner is without any basis. This Court in the case of Hardev Singh and Anr. v. Balwant Singh 2004(1) R.C.R. (Rent) 200 considered the case, in which the tenant had created a partnership and after entering into the so called partnership, had joined service in a rival business firm. This Court endorsed the findings of the Authorities below that the partnership was only a camouflage to avoid eviction on the ground of sub-letting. It was also held that it has to be seen whether the concurrent findings recorded by the Rent Controller and the Appellate Authority on the issue of subletting is vitiated by an error of law apparent on the face of the record. The exercise of revisional jurisdiction of this Court in exercise of its power Under Section 15(5) of the Act was also considered and it was held that this Court can call for and examine the records for satisfying itself as to the legality of the propriety of such order or proceedings and interfere with the same, if it is convinced that the Rent Controller and/or the Appellate Authority has committed any jurisdictional error or exercised jurisdiction illegally or with material irregularity or the findings/conclusions recorded in the impugned order, is perverse or is such which a reasonable man could not have recorded in the facts and circumstances of the particular case. 8. In the case of Kesar Singh and Anr. v. Lachhman Singh (2004-3) 138 P.L.R. 412, it was observed in a case where the tenant had handed over the demised premises to his brother, besides, it had been established that tenant therein was in fact running another shop known as Pappu Cycle Stores and had parted with exclusive possession of the tenanted premises, then a reasonable inference arises with regard to the consideration and the payment of rent and such an agreement between tenant and the sub-tenant, it was observed, is always a secret arrangement executed at the back of the landlord-respondent. 9. The contention that actual possession has to be parted by the tenant-petitioner so as to establish the sub-tenancy is also without any merit. The Hon ble Supreme Court in Helper Girdharbhai v. Saiyed Mohamad Mirasaheb Kadri and Ors. 9. The contention that actual possession has to be parted by the tenant-petitioner so as to establish the sub-tenancy is also without any merit. The Hon ble Supreme Court in Helper Girdharbhai v. Saiyed Mohamad Mirasaheb Kadri and Ors. 1987(2) R.C.R. (Rent) 124 held that three important elements must be there in order to establish partnership: (1) There must be an agreement entered into by all parties concerned; (2) The agreement must be to share profits of business; and (3) The business must be carried out by all or any of the persons concerned acting for all. 10. In the case in hand, the tenant-petitioner has joined the Government Service and, therefore, it is not possible for him at the same time to carry on the business. The stand of the petitioner that it is for the Government to take action against him is without basis, in terms of the service conditions he cannot do any business and by ignoring this would be giving premium to him carry on an illegal act which is prohibited by his service conditions. It is, therefore, evident from the facts and circumstances of the case that the partnership-deed, which has been prepared only few days after the petitioner had joined service is only a camouflage to avoid eviction on the sub-tenant. The said partnership-deed is even otherwise unregistered and the learned Appellate Authority has observed that no account-books were brought on record to show that the profits of the partnership were being shared. 11. In view of the aforesaid circumstances, there is no merit in this petition and the same is accordingly dismissed.