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2007 DIGILAW 467 (RAJ)

Happy Sales v. Rent Appellate Tribunal

2007-03-01

G.S.SARRAF, S.P.PATHAK

body2007
S.P. Pathak, J.—By this appeal, challenge has been made to an order passed by the learned Single Judge of this Court dt. 19.01.2007 in S.B. Civil Writ Petition No. 1914/2006 whereby the stay order granted on 21.04.2006 has been vacated. 2. For disposal of this appeal, necessary facts may be stated that the respondent landlord filed a petition for eviction before the Rent Tribunal, Bikaner. On the basis of pleadings of the parties, three issues were framed. Issue No. 3 was in relation to sub-letting. The learned Tribunal finding issue No. 3 proved, passed the judgment and decree dt. 18.08.2005 against the tenant-petitioner-appellant. Aggrieved, the tenant-appellant preferred an appeal before the learned Rent Appellate Tribunal, Bikaner and the learned Appellate Tribunal, after hearing both sides, confirmed the findings recorded by the Rent Tribunal. Thereafter, petitioner filed S.B. Civil Writ Petition No. 1914/2006, which was admitted and stay was granted to the effect that until further orders effect, operation and execution of certificate for recovery of possession dt. 18.08.2005 (Annex. 12) shall remain stayed. The learned Single Judge, after hearing both sides has vacated the stay order, hence this special appeal has been filed. 3. It has been contended that in view of the findings recorded on Issue Nos. 1 and 2 by learned Rent Tribunal, it cannot be said that Issue No. 3 was rightly decided. It has also been submitted that in view of cross-examination of the plaintiff’s witnesses, it is amply proved that there is no evidence available on record to show that the shop in question was given on rent to somebody else, therefore, the finding that the shop was sub-let subsequently by the appellant-petitioner is finding which is against the record, therefore, it was in the fitness of things to have decided the matter completely. It is also stated that since the writ petition has been admitted and the stay has been vacated, therefore, the appellant will suffer irreparable loss in case the stay is not continued till the disposal of the writ petition. 4. We have carefully considered the submissions made before us. 5. It is not necessary for us to go in details of the case because as far as findings recorded by two Courts below are concerned, they are concurrent in nature. 4. We have carefully considered the submissions made before us. 5. It is not necessary for us to go in details of the case because as far as findings recorded by two Courts below are concerned, they are concurrent in nature. The position of law is well settled that findings of fact, which are concurrent in nature, are not required to be disturbed unless the same are perverse. (Kindly see: Gurubachan Singh & Anr. vs. Ram Niwas, AIR 2006 SC 2204). We have already gone through the cross-examination conducted from the witnesses of the plaintiff and have also carefully perused the impunged order by which the stay order was vacated. 6. The learned Single Judge after considering the submissions has stated as under: “...A perusal of the record shows, that so far as the theory of partnership is concerned, in the entire record there is not even a whisper in that regard, that the alleged sub tenant is not a sub tenant but is a partner of the petitioner, and is carrying on business in the partnership. The application for production of the copy of partnership deed was filed on 14.05.2004, alleging that the partnership deed was misplaced and could be located on 13.05.2004 only, and is a material document. Significantly the partnership deed alleged to be dt. 21.03.2003, and even in the reply filed to the eviction petition, which was filed on 03.12.2003, there is not a whisper about existence of any partnership. It is required to be grasped, that if partnership had been entered into on 21.03.2003 itself, it is too much to assume, that the petitioner would not be aware of the fact of partnership, and would not choose to plead it. Then, yet another aspect of the matter is, that even despite making the application for taking partnership deed on record, nothing was suggested in this regard to any of the plaintiff’s witnesses in cross-examination, about the alleged sub-tenant being a partner, and not a sub-tenant. Then, even the petitioner, in his own affidavit also has not even whispered about any such partnership and even when he was cross examined at length on this aspect, and was confronted with the document Ex. 7, which of course has not been believed by the learned Appellate Court, still the petitioner only deposed ignorance, and denied Gulam Mohd. Then, even the petitioner, in his own affidavit also has not even whispered about any such partnership and even when he was cross examined at length on this aspect, and was confronted with the document Ex. 7, which of course has not been believed by the learned Appellate Court, still the petitioner only deposed ignorance, and denied Gulam Mohd. Bhati to be carrying on business in the shop, and asserted himself alone to be carrying on business in the shop, and did not depose about there by any partnership. In such circumstances, I do not find any error on the part of the learned trial Court, in not taking the partnership deed on record, more so when admittedly the partnership deed is not registered with the Registrar of Firms.” 7. The learned Single Judge has not only considered the matter in relation to rent deed and sub-letting of the shop, but has also taken into consideration the evidence which was led before the Rent Tribunal and thereafter came to the conclusion that no case was made out for continuance of the stay order and vacated the stay order granted earlier. On merit also, it has been stated that no sufficient ground was available for continuance of the stay order, therefore, vacated the order of stay granted on 21.04.2006. 8. In view of the above discussions, we do not find any weight in the contentions raised by the learned counsel and this special appeal having no merits deserves to be dismissed. 9. Accordingly, the appeal stands dismissed summarily. * * * * *