Research › Search › Judgment

Punjab High Court · body

2007 DIGILAW 1255 (PNJ)

Firm Bombay Trading Company v. Bimla Devi

2007-05-31

A.N.JINDAL

body2007
Judgment A.N.Jindal, J. 1. This revision petition is directed against the order dated 23.3.2007 passed by the Appellate Authority, Rewari dismissing the appeal of the tenant-petitioner and upholding the order of eviction dated 21.8.2002 passed by the Rent Controller, Rewari. 2. Factual matrix of the case is that Bimla Devi, landlady-respondent claiming herself to be the owner of the disputed shop bearing Municipal No. 1471 situated in Gokal Bazar Rewari, sought eviction of the petitioners under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the Act) on the grounds of non-payment of rent and subletting. Since the rent due against the petitioners was tendered, therefore, the ground of non-payment of rent was given up. Regarding the ground of subletting, it was submitted by the respondent that she had rented out the shop in dispute to M/s Bombay Trading Company through Krishan Lal (petitioner No. 2 herein) and Chander Kumar (since deceased, whose legal representatives are petitioner Nos. 3 to 5 herein), both partners of the firm. They sublet the said shop to Shiv Kumar and Lekh Raj (respondent Nos. 6 and 7 herein), 4/5 years back to the filing of the eviction petition, without her consent and delivered possession to them. Krishan Lal is running the cloth shop in the name and style of Krishan Cheap Cloth House in the shop of his father bearing Municipal No. 1453 situated at Gokal Bazar Rewari and Chander Kumar was employed In the shop of Krishan Lal son of Bhagwan Dass situated at Gokal Bazar Rewari. 3. The aforesaid submissions were controverted by the respondents in their reply and it was submitted that from the very inception of tenancy M/s Bombay Trading Company has been carrying on its business and Shiv Kumar (petitioner No. 6) was added as partner in June, 1981 and later on from 1.4.1991, Krishan Lal, Shiv Kumar and Lekh Raj became the partners of the said firm. It was also denied that petitioners Krishan Lal and Chander Kumar sublet the disputed shop to Shiv Kumar and Lekh Raj. It was further averred that Krishan Lal was in control and possession of the disputed shop as he is not carrying on any other business and he is still the partner in the firm. 4. On filing of rejoinder, the following issues were framed by the Rent Controller:- "1. It was further averred that Krishan Lal was in control and possession of the disputed shop as he is not carrying on any other business and he is still the partner in the firm. 4. On filing of rejoinder, the following issues were framed by the Rent Controller:- "1. Whether the respondent is liable to be evicted from the demised property as alleged in the petition ? OPP 2. Relief." 5. After examining the entire evidence on record, the Rent Controller observed that Chander Kumar had completely withdrawn from the shop, whereas, Krishan Lal is not in actual possession of the shop in dispute and both sublet the shop to Shiv Kumar and Lekh Raj (respondent Nos. 6 and 7); Krishan Lal and Chander Kumar had not done any business in the disputed shop for the last 10/11 years; Krishan Lal is residing at Gurgaon. Krishan Lal in his cross- examination admitted that Chander Kumar is doing the cloth business in Partap Market Rewari and has not been doing any business in the disputed shop. He also admitted that he was a sleeping partner in the said firm and was partner in Krishan Cheap Cloth House and he neither made any withdrawal from the M/s Bombay Trading Company nor made any investment. Lekh Raj is drawing the amount from Bombay Trading Company. Ultimately, the Rent Controller observed as under :- "54. Thus, in the totality of the facts, the partnership deed is held to be a mere paper transaction and petitioner has successfully proved that respondent Nos. 2 and 3 have sublet the shop to respondent Nos. 4 and 5 and lost the legal possession over the disputed shop. Respondent Nos. 4 and 5 are in control and possession over the disputed shop without the consent of the landlord-petitioner and respondents are liable to be ejected on the ground of subletting." 6. When appealed against, the Appellate Authority vide its judgment dated 23.3.2007 while upholding the order of eviction, observed that the partnership deed dated 1.4.1991 (Ex.RW6/1) was a sham transaction and actually Chander Kumar and Krishan Lal have nothing to do with the business of the partnership firm and they are completely out of the actual control and possession of the disputed shop. Consequently, the subletting was established. 7. Consequently, the subletting was established. 7. In nutshell, it would be safe to observe that there are concurrent findings returned by both the authorities below that petitioner No. 2 Krishan Lal and Chander Kumar sublet the demised premises in favour of petitioner Nos. 6 and 7. That apart, it would also be pertinent to mention here that from the evidence led on record, the factum of subletting stands amply established. Rent deed dated 7.1.1980 Ex.AW1/A reveals that the disputed shop had been rented out by Bimla Devi to M/s Bombay Trading Company through its partners Krishan Lal and Chander Kumar. As per clause (iii) of the said rent deed, it had been agreed that the petitioner firm would use the premises on his own and would not sublet the same in any manner. However, vide partnership deed dated 20.6.1981, the Krishan Lal and Chander Kumar-tenants joined Shiv Kumar in the firm. Subsequently, vide another partnership deed dated 1.4.1991, Lekh Raj was added as partner with petitioner No. 2 Krishan Lal. One of the original partners retired from the said firm on 31.3.1991. The share of Krishan Lal was kept just as nominal i.e. 20% and the remaining partners, namely; Lekh Raj and Shiv Kumar were partners of 40% each. Now to find out whether Krishan Lal was a nominal partner after Chander Kumar had retired from the partnership firm, the impugned judgment reveals that Krishan Lal was not working at the shop. Even when the Local Commissioner was appointed, he was not found on the shop, while Lekh Raj and Shiv Kumar were found there. Not only this, sufficient evidence has been led by the landlady to show that Krishan Lal is running the cloth business in the name and style of Krishan Cheap Cloth House in the shop of his father. As such, Krishan Lal cannot be said to be in possession and control of the business in question as well as the demised shop. The evidence as discussed in the judgment further indicates that Krishan Lal never withdrew any amount out of the profits of the firm `M/s Bombay Trading Company, except for Rs. 129.60 in the year 1992-93, Rs. 32/- in the year 1993-94 and Rs. 52/- in the year 1994-95, which amounts were deposited in the Income-Tax. Contrary to it, the acting partners were withdrawing Rs. 18000/- per month, each, on account of salary. 8. 129.60 in the year 1992-93, Rs. 32/- in the year 1993-94 and Rs. 52/- in the year 1994-95, which amounts were deposited in the Income-Tax. Contrary to it, the acting partners were withdrawing Rs. 18000/- per month, each, on account of salary. 8. Having perused the judgments rendered by the courts below, no such impropriety or illegality has been detected or smelt, which may render the judgment to be perverse, unreasonable, perfunctory or against the records. 9. It is true that under sub-section (5) of Section 15 of the Act revisional power of this Court should not be used in a routine manner. However, in cases where conclusions recorded by the Appellate Authority are perverse or not possible to be accepted on the material placed on record then there is no bar on the exercise of such power. The argument of the learned counsel has to be examined in the light of the view taken by Supreme Court in Molar Lal v. Kay Iron Works (P) Ltd., 2000(1) RCR(Rent) 354 (SC). In that case sub-section (6) of Section 15 of the Act was considered and the views of their Lordships read as under :- "Similarly, we are of the opinion, on the facts and circumstances of this case, the argument of the tenant that the High Court exceeded its jurisdiction by interfering on a finding of fact arrived at by the appellate authority is also to be rejected. It is to be noticed that under sub-section (6) of Section 15 of the Act, the High Court as a revisional authority has the power to call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order and is entitled to pass such order as it may deem fit. The power vested in the High Court under the provision of law is much wider than the power conferred on the High Court under Section 115 CPC. In the process of satisfying itself as to the legality or propriety of an impugned order, the High Court in a given case can go into the finding of fact arrived at by the courts below and, if found necessary, reverse such a finding of fact. In the process of satisfying itself as to the legality or propriety of an impugned order, the High Court in a given case can go into the finding of fact arrived at by the courts below and, if found necessary, reverse such a finding of fact. Of course, this Court has in many cases cautioned that this power is not to be used by the a revisional court in a routine manner but to be used only when the revisional Court comes to the conclusion that the last court of fact has arrived at a conclusion which is perverse or not possible to be accepted on the materials placed before it. In other words, if the High Court comes to the conclusion that the finding of the first appellate court is based on no evidence then in a given case it is open to the High Court to interfere with such finding of fact. In the instant case, we are not convinced that the High Court has exceeded its jurisdiction while allowing the revision of the landlord on this count. Therefore, this question urged on behalf of the appellant is also rejected." (emphasis added) 10. On perusal of the aforesaid observations of the Supreme Court, the necessary conclusion can be drawn that revisional court can interfere in the concurrent findings returned by the courts below when : (i) the findings are perverse, bald and without evidence; (ii) findings are based on perfunctory or superfluous approach; (iii) findings are wholly unreasonable. 11. The findings cannot be reversed merely because a view different from the view recorded by the lower court is possible. The power of revision under sub-section (6) of Section 15 of the Act does not extend to power of regular appeal. The reference, if any, can be made to the judgment in Manjeet Singh v. Joginder Singh, 2003(1) RCR(Civil) 713 (P&H). In a similar case Pran Nath v. Shri Harcharan Singh and others, 1981(2) RLR 518, it was observed that where the Appellate Authority reached the conclusion that the joint concern of the partnership firm with the tenants could not be proved and Rent Controller and the Appellate Authority for the very good reasons reached the conclusion that the tenants were sub-letees, then, no interference could be made at the revisional stage. For the foregoing reasons, this revision petition being devoid of any merit is dismissed.