JUDGMENT 1. THE petitioner ? original plaintiff has filed this Civil Revision Application under Section 29 (2) of the Bombay Rent Control Act praying for quashing and setting aside the judgment and decree dated 11.09.2006 passed by the Small Causes Court at Vadodara in Rent Suit No.395 of 2000 and also the judgment and decree dated 11.08.2007 passed by the learned Principal District Judge at Vadodara in Regular Civil Appeal No.110 of 2006. 2. THIS Court has issued notice on 02.11.2007. Civil Revision Application was admitted and rule was issued on 26.03.2008. Initially, Mr. B.Y. Mankad, learned advocate appeared on behalf of the petitioner. However, by an application dated 02.02.2009, the petitioner had chosen to appear personally in this matter and accordingly, Mr. Mankad was relieved from the proceedings. The Court has also passed an order on 04.03.2010 directing the Registry not to show the name of Mr. B.Y. Mankad as an advocate appearing for the petitioner. The petitioner has filed various submissions in writing from time to time before this Court. He being very old person, could not appear on the last date of hearing and relied on the submissions already filed before the Court. It is the case of the petitioner that the petitioner has filed Rent Suit No.395 of 2000 in the Small Causes Court at Ahmedabad for getting possession of the suit shop on the grounds of arrears of rent, subletting and change in nature of business. The learned Trial Judge by his judgment and order dated 11.09.2006 dismissed the said suit of the petitioner. 3. BEING aggrieved by the said judgment and order, the petitioner preferred Regular Civil Appeal No.110 of 2006 before the Court of learned Principal District Judge at Vadodara for quashing and setting aside the same on various grounds. The learned Principal District Judge, Vadodara vide his judgment and order dated 10.08.2007 dismissed the said appeal and confirmed the order of the Trial Court. It is this judgment and decree which is under challenge in the present Civil Revision Application. 4. IN the appeal memo, several grounds are raised by the petitioner. The petitioner has raised the ground that the findings of the Trial Court and the Appellate Court are bad, illegal, against the provisions of law and contrary to the facts and evidence on record and hence, both the orders are required to be quashed and set aside. 4. IN the appeal memo, several grounds are raised by the petitioner. The petitioner has raised the ground that the findings of the Trial Court and the Appellate Court are bad, illegal, against the provisions of law and contrary to the facts and evidence on record and hence, both the orders are required to be quashed and set aside. The petitioner has also pleaded that the findings of both the lower Courts are based on no evidence and the same are required to be quashed and set aside. It is further pleaded that both the judgments are perverse, full of contradictions, very much against the fact and evidence on record and contrary to the settled principles of law. It is further contended that both the Courts have erroneously held that the present case is falling under Section 12 (3) (b) of the Bombay Rent Act. Condition No.8 of the agreement clearly provides that the proportionate amount of taxes shall be payable by lessee to the lessor together with the amount of monthly rent without default. IN view of this clear covenant between the parties, it becomes crystal clear that the present case clearly falls under Section 12 (3) (a) of the Bombay Rent Act. It was further pleaded that both the Courts have erroneously erred in disbelieving the case of subletting canvassed by the petitioner. It is the say of the petitioner that defendant No.2 is in exclusive possession of the suit shop. The document of partnership is sham and bogus document and is a camouflage and is made in breach of condition No.3 of the lease agreement. Reliance is placed by the petitioner on the decision of the Apex Court reported in AIR 1987 SC 1782 wherein it is held that in cases where the partnership is put up as defense to the suit, for eviction on the ground of subletting etc., the Court has to find out the real transaction, if necessary by tearing off the upper mask and if it is found that the partnership is not real, but mere camouflage to clock the real transaction of subletting, the Court would pass a decree for eviction. It is contended in the present case that both the Courts have deliberately not gone into detail on the partnership issue and have not tried to tear the upper mask to know the correct picture. It is contended in the present case that both the Courts have deliberately not gone into detail on the partnership issue and have not tried to tear the upper mask to know the correct picture. It is, therefore, contended that both the judgments are required to be quashed and set aside. It is further contended that both the Courts below have grievously erred in deciding the issue of change of use against the petitioner. It is the say of the petitioner that if there is a condition to use the suit shop only for particular purpose and the tenant changes the use, it may amount to breach of terms and conditions of lease and may be a ground for eviction. It is contended that condition No.1 of the lease clearly states that the shop is let out for the purpose of radio repairing only. The defendants themselves have stated that they have stopped the business of radio repairing and have started the business of copying. Even the receipts produced by the defendants also prove that only copying is being done. It is, therefore, contended that there is a clear breach of condition Nos.1 and 3 of the lease agreement. The decree of eviction should have, therefore, been passed by the Courts below on this ground. 5. IT is further contended that both the Courts have seriously erred in not appreciating the fact that the petitioner had filed the suit for recovery of arrears of rent and possession on the ground of subletting in September, 2000 when the partnership was not known to him. The original partnership deed dated 01.12.1996 was produced by the defendant at mark 60/2 only on 09.07.2004 i.e. four years after filing of the suit. The petitioner's examination-in-chief was recorded on 25.11.2002 at Exh.45 and, therefore, the defendant No.2 was joined as a sub-tenant. The defendant No.2 himself has admitted in the joint written statement at Exh.28 that he was working with defendant No.1 at the suit shop prior to formation of the fraudulent partnership on 01.12.1996. IT is, therefore, contended that in view of an express obligation undertaken by the defendant No.1 in the rent agreement to the effect that she will neither sublet nor give the suit shop to any one even on a partnership, contract etc. IT is, therefore, contended that in view of an express obligation undertaken by the defendant No.1 in the rent agreement to the effect that she will neither sublet nor give the suit shop to any one even on a partnership, contract etc. basis, without the prior permission of the petitioner in writing, it was not open to the defendant to have done so under any rent law. IT is further contended that in view of the defendants' admission that they closed partnership business of radio repairing and started new business in partnership of zerox copying, the petitioner is entitled to an eviction decree for change in use of business. The admission of defendant No.2 in his cross-examination is that he is in exclusive possession of the suit shop and that he is trading in the name of Puja Copying Center, a partnership of defendant No.2. IT is further contended that the original deed of partnership produced by the learned advocate for the defendants at M-60/2 and Municipal License at M-60/1 are fraudulently made and are concocted. No reliance could have been placed by the Courts below on such forged documents. IT is further contended that the evidence of the plaintiffs witness Mangilal who is the oldest tenant in the whole shopping center occupying Shop No.11 adjacent to Suit Shop No.12 is very relevant in as much as he deposed that he never saw the defendant No.1 at the suit shop during 30 years of her tenancy and that he saw the board of defendant No.2's firm Puja Copying Center conspicuously displayed at the suit shop. 6. TO substantiate the grounds raised in the memo of Civil Revision Application, the petitioner has filed written arguments before the Court wherein it is stated that by an agreement dated 24.09.1976, the suit premises was let out to the respondent No.1 exclusively for her personal use and for a specific purpose (radio repairing). In the said agreement, the respondent No.1 has undertaken an express obligation to the effect that she will not sublet and/or give the suit premises to any one even on a partnership basis without prior permission of the petitioner in writing. The intention of the parties was that the respondent No.1 shall use the suit premises personally and for radio repairing only. The intention of the parties was that the respondent No.1 shall use the suit premises personally and for radio repairing only. The rent agreement further stipulates, inter alia, that the respondent No.1 shall pay standard rent of Rs.125/- per month on the first day of each month in advance regularly. All civic taxes, electrical bills etc. shall be payable by the respondent No.1 to the authorities concerned directly. The respondent No.1 shall not bring any kind of change, improvement, addition etc. in the suit premises. It is further contended in the written arguments that the respondent No.1 has been a constant defaulter both in the matter of payment of rent as well as the taxes. The period of default of rent varied from 12 months to 30 months. The petitioner had earlier filed Rent Suit No.290 of 1979 for possession on the grounds of subletting and recovery of arrears of rent. The said suit was compromised upon an unqualified undertaking filed by the respondent No.1 to the effect that she shall sincerely and faithfully be abide by the terms and conditions of the rent agreement. Despite this fact, the respondent No.1 continued to be a defaulter almost with impunity and sublet the suit premises to different parties from time to time but their identity could not be established. It is further contended that the respondent No.1 throughout the tenancy period has acted high-handedly and showed complete disrespect for her contractual obligation and thereby engaged the petitioner in unending litigation that has disturbed the equilibrium of the petitioner's mind, apart from the financial burden suffered by the petitioner. It is further contended that the Power of Attorney Holder and the husband of the defendant No.1 has admitted in his cross-examination that after leaving railway service in 1996, he was doing his own business near Sapana Cinema which is only two blocks of land away from the suit premises. Thereafter, he was doing marble business with his son. It is also confirmed by the husband of the defendant No.1 that the defendant No.2 used to come to his shop. He has further admitted that he had never sat at the suit shop and the defendant No.2 is exclusively doing the business. Thereafter, he was doing marble business with his son. It is also confirmed by the husband of the defendant No.1 that the defendant No.2 used to come to his shop. He has further admitted that he had never sat at the suit shop and the defendant No.2 is exclusively doing the business. It is further contended that in any partnership business, all partners have to contribute either in case or in kind but in the present case, 100% capital is brought by the defendant No.2. The entire management is under the control of defendant No.2. The defendant No.1 has no concern in partnership business. Loss is not shared but only profit at the rate of 51 : 49% by mutual understanding was shared. In absence of defendant No.2, his servant is taking care of business. Even the Partnership Deed itself is not genuine and for this purpose, it is contended that the Partnership Deed is drawn on a stamp paper valued at Rs.100/- dated 30.11.1993 whereas the Stamp Vendor's license to sell stamps is dated 23.10.1996 which indicates that at the time of purchase of stamp paper, neither the partnership was under formation nor even contemplated. It is further contended that the Stamp Vendor Shri Rajgore is still in Jail in connection with the Telgi Stamp Scam. It is further contended that on 01.12.1996, the date on which the partnership firm has come into existence, if the partnership was genuine, the defendants should have purchased the stamp paper in the name of the partnership firm itself. Considering all these submissions and arguments, it was strongly urged by the petitioner that the impugned orders passed by the Courts below deserve to be quashed and set aside and the Civil Revision Application deserves to be allowed in toto. 7. MR. Kaushal D. Pandya, learned advocate appearing for the defendants, on the other hand, has submitted that there is concurrent finding of fact by both the Courts below and hence, this Court while exercising its revisional jurisdiction under Section 29 (2) of the Bombay Rent Control Act should not have disturbed the concurrent finding of facts arrived at by the Courts below. He further submitted that both the Courts below have appreciated the evidence produced on record and arrived at a just and proper conclusion which cannot be disturbed by this Court. He further submitted that both the Courts below have appreciated the evidence produced on record and arrived at a just and proper conclusion which cannot be disturbed by this Court. He further submitted that the Small Causes Court Judge as well as the learned Principal District Judge have considered all the issues raised before them and arrived at a just conclusion in light of the evidence produced before them and also in light of the statutory provisions and the decided case law on the subject. 8. THE learned Trial Judge, after setting out the rival contentions of the parties has arrived at the conclusion that it is settled position of law that for subletting, the plaintiff has to prove that the exclusive possession is parted and it is left out for consideration. The plaintiff has not discharged this obligation. The learned Trial Judge has further observed that though the plaintiff has challenged the Partnership Deed, looking to the documents and evidence, the plaintiff failed to prove it. The learned Trial Judge has further observed that looking to the contents of the Deed, the tenancy right or exclusive possession is not transferred by the plaintiff. It is also observed that looking to the nature of purpose for which premises was let out, there is no change in the nature of business. Though the plaintiff has alleged that the defendant No.1 has sublet the suit premises to defendant No.2 @ Rs.300/- per month, there is no such evidence led by the plaintiff. The plaintiff has failed to prove that exclusive possession of the suit premises has been transferred to defendant No.2 for valuable consideration. If business of partnership firm carried on in suit premises of which one partner is tenant, there is no subletting and it is not established that there is any breach of agreement. The learned Trial Judge has further observed that if the partner is only to share profit and not to operate bank account, even then partnership is genuine. The above finding of the learned Trial Judge was confirmed by the learned Principal District Judge while dismissing the appeal filed by the petitioner. The learned Trial Judge has further observed that if the partner is only to share profit and not to operate bank account, even then partnership is genuine. The above finding of the learned Trial Judge was confirmed by the learned Principal District Judge while dismissing the appeal filed by the petitioner. The learned Principal District Judge after framing the point for determination as to whether the petitioner proves that the learned Trial Judge has erred in dismissing the plaintiff's suit for recovery of possession of the suit premises and after addressing himself to the various issues relating to earlier proceedings between the petitioner and the respondents, standard rent, notice, cause of action, res judicata, Court Fees, arrears of rent, benefit under Section 12 (3) (b) of the Bombay Rent Act, subletting, alteration ? addition etc., purpose ? change has recorded the finding that the regular appeal filed by the petitioner deserves to be dismissed. The learned Principal District Judge has also observed, while dealing with the issue regarding subletting that the issue of subletting is more in controversy between the parties and hence, he has not accepted the contention of the petitioner that there is discrepancy in the date of purchase of the stamp. It was observed that the defendants have produced the original Deed of Partnership dated 1.12.1996 at Exh.109. He found from the said document that the said stamp paper of Rs.100/- was purchased by the defendant No.2 on 30.11.1996 from the Stamp Vendor Shri J. B. Gajjar who possesses the License No.121/96 w.e.f. 29.10.1996 and the Stamp Vendor had made the entry in the relevant register at Sr. No.255. The learned Principal District Judge, therefore, observed that there is no reason to disbelieve this document. 9. BASED on the above findings recorded by both the Courts below, Mr. Pandya has strongly urged that the impugned judgments and orders of the Courts below do not call for any interference by this Court. He has further submitted that the case law relied upon and referred to by the Courts below are squarely applicable to the facts of the present case and hence, both on law as well as on facts, the issue of subletting is rightly decided in favour of the respondents. 10. He has further submitted that the case law relied upon and referred to by the Courts below are squarely applicable to the facts of the present case and hence, both on law as well as on facts, the issue of subletting is rightly decided in favour of the respondents. 10. HAVING heard the learned Counsel appearing for the respondent and having considered their rival submissions in the background of the orders and judgments passed by the Courts below, as well as the relevant statutory provisions contained in the Bombay Rent Control Act and the decided case law on the subject, the Court is of the view that normally the Court would not have disturbed the concurrent findings of facts given by the Courts below. However, looking to the peculiar facts of the present case and the evidence brought on record which were not taken into consideration in their proper perspectives by the Courts below and findings arrived at by the Courts below are based on irrelevant consideration of the issues, the Court finds itself in disagreement with the findings recorded by the Courts below and the same are required to be quashed and set aside. From the perusal of the issues framed by the Trial Court and the points considered by the Appellate Court, the Court does not think it necessary to go into all these issues and moreover, the findings given on those issues are not required to be gone into in view of the decision taken by this Court on the issue regarding subletting. The lower Appellate Court, after appreciating the evidence, oral as well as documentary, on record and after considering the issues framed in relation to Section 13 (1) (e) of the Act came to the conclusion that there is no subletting. However, certain relevant aspects which are raised and the oral as well as documentary evidence available on record were not taken into consideration while recording this finding. The learned Principal District Judge has referred to the Partnership Deed which is on the stamp paper of Rs.100/- purchased on 30.11.1996 from one Mr. J. B. Gajjar. However, the contention was raised by the petitioner that the respondent on 09.07.2004 produced the list of 15 documents which included original Partnership Deed at M/60/2 and copy thereof at 60/15. The learned Principal District Judge has referred to the Partnership Deed which is on the stamp paper of Rs.100/- purchased on 30.11.1996 from one Mr. J. B. Gajjar. However, the contention was raised by the petitioner that the respondent on 09.07.2004 produced the list of 15 documents which included original Partnership Deed at M/60/2 and copy thereof at 60/15. The stamp paper of Rs.100/- was purchased by the respondent No.2 on 30.11.1993 when the respondent No.2 was neither a partner of the firm with respondent No.1 nor even the formation of the alleged partnership was contemplated. The learned Principal District Judge observed that the stamp paper was purchased on 30.11.1996. It is wrong reading of the document. The stamp paper was in fact purchased on 30.11.1993. He has further observed that the stamp paper was purchased from the Stamp Vendor J. B. Gajjar. In fact, it was purchased from Shri J. B. Rajgore. The alleged firm was formed on 1.12.1996 i.e. after three years from the date of purchase of the stamp paper on 30.11.1993, whereas the Stamp Vendor's license to sell stamps is effective only from 19.10.1996. It is also on the record that on the same day i.e. 09.07.2004, the learned advocate for the respondents obtained an order from the Trial Court to get back the original partnership i.e. M/60/2 in exchange for its compared copy but the Trial Court released the original Partnership Deed in exchange for a compared copy of the partnership at M/60/15 that was included in the list of documents simply to facilitate manipulation. Again on 11.07.2005, another partnership deed was produced at M/147/2 which was later on exhibited as Exh. 109. This was not explained at all either by the respondents or the Courts have not recorded any finding on these issues. The Courts below have also not taken into consideration the license procued at M/60/1 initially which was taken back and reproduced at M/147/1 in a modified form, after the witness's cross-examination was over. The judgment of the Trial Court is based on the revised license at M/147/1. It, therefore, appears that the documents once produced before the Court are purposefully eliminated and that too when such issues were raised by the petitioner. It has come also on record that the suit premises was in exclusive possession of the respondent No.2. The judgment of the Trial Court is based on the revised license at M/147/1. It, therefore, appears that the documents once produced before the Court are purposefully eliminated and that too when such issues were raised by the petitioner. It has come also on record that the suit premises was in exclusive possession of the respondent No.2. There was an undertaking to the effect that the respondent No.1 would not constitute the firm etc. without prior permission of the petitioner. The petitioner's permission was not at all obtained while constituting the partnership firm with the respondent No.2. The partnership firm itself does not seem to be genuine as only the profits were shared between the partners. As per the provisions of the partnership deed, only minors are admitted to the benefits of partnership. All major partners shall have to share the profits as well as losses. The respondent No.1's husband himself in his cross-examination admitted that he has never sat in the suit premises and the suit premises was in the exclusive possession of the respondent No.2. The respondent No.2 himself was carrying on the business and even in his absence, his peon was looking after the said business. All these material evidence would have been taken into consideration while deciding as to whether the real and genuine partnership has been created. Both the Courts below have not considered all these aspects. 11. IT is true that merely because the tenant continues to carry on the business in the same shop as hither to, but takes in other partner, the legal possession of the shop does not change hands. IT is equally true that taking in a partner in a business does not amount to subletting the premises so as to attract the bar of Section 13 (1) (e) of the Act. However, the intention of the parties and purpose behind creation of partnership firm is an important factor to be taken into consideration by the Court. IT is equally true that taking in a partner in a business does not amount to subletting the premises so as to attract the bar of Section 13 (1) (e) of the Act. However, the intention of the parties and purpose behind creation of partnership firm is an important factor to be taken into consideration by the Court. The Apex Court, after considering the entire case law, summarized the correct legal position on this subject in the case of Celina Coelhi Pereira (Ms.) and others V/s. Ulhas Mahabaleshwar Kholkar and others (2010) 1 SCC 217 and, inter alia, held that if the purpose of partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of subletting, the Court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant. Both the Courts below have failed to appreciate that the plaintiff ? landlord succeeded in bringing on record the necessary materials by adducing evidence and by means of cross-examination, and in making out a case of subletting or parting with possession in tenancy premises by the tenant in favour of other partner. This Court, therefore, does not find any convincing reason to approve the findings recorded by the Courts below and hence the said decisions are required to be reversed. 12. IN view of the above decision, the Court does not think it necessary to deal with the other issues on which the impugned judgments of both the Courts below are challenged by the petitioner. Since the partnership firm itself is held to be not genuine and it is sham, it can certainly be said that the respondent No.2 was carrying on the business in total exclusion of the respondent No.1. In this view of the matter, the present Civil Revision Application is allowed without any order as to costs. The present respondents ? original defendants are directed to evict the suit premises and hand over the possession thereof to the petitioner within one month from the date of receipt of the certified copy of this judgment or from the date of receipt of writ from this Court, whichever is earlier. 13. The present respondents ? original defendants are directed to evict the suit premises and hand over the possession thereof to the petitioner within one month from the date of receipt of the certified copy of this judgment or from the date of receipt of writ from this Court, whichever is earlier. 13. SINCE the petitioner is appearing as party-in-person and he is very old person aged about more than 95 years old and unable to come to the Court, Registry is directed to send a writ of this order to the petitioner so as to make him aware about this order and to take further consequential action in the matter, if so required.

Phatandas Chellaram Bharaney v. Kashiben I. Patelia