ivil Appeal No 3551 of 1979
the Judgment and Order dated 202181979 of the Gujarat High Court in CR Appln
No 1218 of 1977
293 Dr Shankar Ghosh PH Parekh and Ayesh Misra for the Appellant
TU Mehta RC Bhatia and PC Kapur for the Respondents
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
Whether the appellant herein and his father had sublet the premises in question in or about 1960 in terms of section 131e of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 hereinafter called the Rent Act  is  the question involved in this appeal by special leave from the judgment and order of the High Court of Gujarat dated 21st of August 1979
In order to decide this question it is necessary to decide the scope and ambit of section 292 of the Rent Act
To decide this facts must be referred to
The appellant claimed to be the tenant in respect of the two premises which are quite adjacent to each other one of which is involved in this appeal
The respondent is the landlord of the two premises and these were situated at Raikhad Ward Ahmedabad
The respondent had alleged in the two suits that the appellant was his tenant in the suit premises which were leased out to him and before him his father for conducting the business in the name of Ahmedabad Fine  Weaving Works and according to the terms of tenancy suit premises were leased for manufacturing cloth in the name of Ahmedabad Fine  Weaving Works
The respondent had further alleged that the appellant No 1 had closed the business and he was not using the said premises for the purpose for which it was let to him
It was the case of the appellant that in respect of the suit premises he was carry ing on his business with respondents Nos 2 4 and 5 in the name of respondent No 2 Ms Bharat Neon Signs hereinaf ter referred to as respondent No 2
We are concerned in this appeal with only one of the premises which was involved in Suit No 553 of 1969
It is not in dispute and it never was that the premises was being used by Bharat Neon Signs firm being the defendant No 2 in the original suit
At the time of the institution of the suit the defendants Nos 2 to 5 were admittedly the part ners
The present appellant who was the original defendant No 1 claimed to be a partner
The main controversy was whether the appellant had sublet the premises to defendant No 2 Bharat Neon Signs or 294 whether he being a partner of the said firm had permitted the said firm to use the premises in question
It is clear from the evidence on record that the partnership firm had undergone metamorphosis from time to time and again ever since the year 1960
The firm Bharat Neon Signs first origi nated on 4th of October 1960
As many as six persons were named in the partnership firm on or about 4th of October 1960 and they had executed a deed of partnership on 13th of October 1960 which is Exhibit 114 on the record
The said partnership deed records six persons who were to run the business in manufacturing and selling Bharat Neon Signs tubes
However the document is silent as to where the business was started
On or about 24th of October 1960 another partnership deed being Exhibit 69 came to be execut ed among the six persons and the father of the appellant Girdharlal
The document is Exhibit 69 and is signed by the father of the appellant and the appellant himself also
It may be mentioned that the partnership deed Exhibit 114 was executed by six persons and at that stage the appellant or his father were not partners in the firm
But thereafter when the partnership deed Exhibit 69 was executed the appel lant and his father joined the firm with an agreement to share profits only and their share was fixed at 003 paise in a rupee
There is a third partnership deed Exhibit 70 which showed that the deceased tenant Girdharlal had died on 1st of February 1961 and so by the remaining seven partners with same terms and conditions a new partnership deed being Exhibit 70 was executed on 22nd September 1961
At this time the share of the appellant was fixed at 003 paise in a rupee to share the profits only
In 1965 some partners retired and the remaining four partners executed a fresh partnership deed Exhibit 117 on 1st April 1965
This last partnership deed was executed by the appellant and original defendants Nos 3 4 and 5
The main question in issue in this appeal as well as before the High Court in revision was whether there was a genuine partnership at the appellant was a partner
It is true that since after 4th of October 1960 the partnership firm was carrying on business in the premises in question
It is well settled that if there was such a partnership firm of which the appellant was a partner as a tenant the same would not amount to subletting leading to the forfeiture of the tenan cy
For this proposition see the decision of the Gujarat High Court in the case of Mehta Jagjivan Vanechand vs Doshi Vanechand Harakhchand and others AIR 1972 Gujarat 6
Thakkar J of the Gujarat High Court as the learned Judge then was held that the mere fact that a tenant entered into a partnership and allowed the premises being used for the benefit of partnership does not constitute assign 295 ment or subletting in favour of the partnership firm enti tling a landlord to recover possession
This view is now concluded by the decision of this Court in Madras Bangalore Transport Co West vs Inder Singh and others The trial court in the instant appeal held that there was subletting
It accordingly decreed the suit for posses sion instituted by the landlord
The suit inter alia was filed by the landlord on the ground of subletting
There was an appeal before the Court of Small Causes Bombay and by judgment and order delivered by the Court of Small Causes Bombay on 18th of August 1977 it was held that the learned Trial Judge had erred in passing a decree for possession on the ground of subletting change of user and breach of terms of tenancy
In the premises the appeal was allowed
It may be mentioned that the respondent No 1 is the landlord of two premises which were quite adjacent as mentioned before
The respondent plaintiff had alleged in both the suits that the appellant was his tenant in the suit premises which were leased to him for conducting his business in the name of Ahmedabad Fine  Weaving Works and according to the terms of tenancy suit the suit premises were leased for manufac turing cloth in the name of Ahmedabad Fine  Weaving Works
The landlord had alleged that the appellant had closed that business and he was not using the premises in question for the purpose for which it was let to him
It was further alleged by the landlord that the appellant had unlawfully sublet the major part of the premises in question of both the suits to defendant Nos 2 to 5 in the original suit and these defendants were running business in partnership for manufacturing of neon signs in the name of Bharat Neon Signs
It was further alleged that the appellant had also unlawfully sublet one room of the suit premises to defendant No 6 in Suit No 553 of 1969 who was residing in that room
For the purpose of the Suit No 553 of 1969 with which the appeal is concerned it is relevant to state that the appel lant had raised the contention that Ahmedabad Fine  Weaving Works was not the tenant of the suit premies but the suit premises was tenanted by the father of the appellant Gird harlal Chimalal in 1938 and he was the original tenant of the premises and appellant subsequently joined the business of his father as a partner and the name of the partnership firm was Ahmedabad Fine Weaving Works
He has stated further that the suit premises were to be used for business and he could use it for any business and he joined in partnership with Defendants Nos
2 to 5 somewhere in 1961 to prepare neon signs and the defendants Nos 2 to 5 were his partners and doing business in the suit premises
He contended fur ther that the suit premises was with him and the 296 defendants Nos 2 to 5 had not acquired any tenancy rights in the suit premises
It is further stated that he had filed a civil suit to dissolve the partnership and to take account and his suit was pending in City Civil Court
It may be mentioned that by the time the revision petition came to be decided by the High Court the suit had been decreed in his favour directing a dissolution of the said partnership and directing taking of the accounts
There was an appeal filed from that decree and that appeal was also dismissed and disposed of affirming the decree for the dissolution of the partnership inter se between the parties being the partners of the said firm
These facts were accepted that there was a partnership
As mentioned hereinbefore the learned trial Judge consolidated both the suits and in the instant suit being No 553 of 1969 with which this appeal is concerned it was held by the learned trial Judge that there was unlaw ful subletting
There was a decree for possession
This was set aside in appeal
The Appellate Court so far as the material for the present appeal is concerned held that there was no subletting and there was only carrying on of the business in partnership with defendants Nos
2 to 5 in the name of Bharat Neon Signs
Therefore the first question that had to be decided by the Appellate Court being the Court of Small Causes Bombay and if a revision lay before the High court was whether there was any genuine partnership
The partnership deeds were there the appellant was not to share in the losses
The Court of Small Causes came to the conclusion on an analysis of the evidence before it and the terms of the three partnership deeds referred to hereinbefore that there was a genuine partnership in law which was acted upon
The High Court in revision reversed that finding
The first question therefore is whether the High Court could do so in the facts of this case and second ly whether the High Court was right in so doing
Whether there was a partnership or not may in certain cases be a mixed question of law and fact in the sense that whether the ingredients of partnership as embodied in the law of partnership were there ina particular case or not must be judged in the light of the principles applicable to partnership
The first question therefore is what is a partnership That has to be found in section 4 of the  it says Partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all Emphasis supplied
Section 6 of the said Act reiterates that in determining whether a group of persons is or is not a firm or whether a person is or is not a partner in a firm 297 regard shall be had to the real relation between the par ties as shown by all relevant facts taken together
The following important elements must be there in order to establish partnership 1 there must be an agreement en tered into by all parties concerned 2 the agreement must be to share profits of business and 3 the business must be carried on by all or any of the persons concerned acting for all
The partnership deeds were there entitling the petitioner to share in the partnership
It is true that in the partnership deeds the bank accounts were not to be operated by the appellant and further that irrespective of the profit the clause of the partnership deed provided that there should be a fixed percentage of profit to be given to the partner appellant No 1
The appellant was not to share the losses
But there is nothing illegal about it
The appellant was to bring his asset being the tenancy of the premises in question for the user of the partnership
All these tests were borne in mind by the Court of Small Causes Bombay in the appeal from the decision of the learned trial Judge
The Appellate Court had considered the partnership deeds
One point was emphasised by Mr Mehta learned coun sel appearing for the respondents that the original first partnership deed did not mention the appellant or his father as a partner
It was in the second partnership deed that the appellant and his father joined the firm
The firm started as emphasised by Mr Mehta on 4th of October 1960 and it was only on the 24th of October 1960 the second partnership deed was executed
Therefore it was emphasised that there was a gap of time when there was user by the partnership firm of the premises in question when the appellant was not a member of the firm
It was emphasised that this aspect was not considered by the Court of Small Causes and the High Court therefore was justified in interfering with the findings of the Court of Small Causes
We are unable to agree
These deeds were there the partners were cross examined there was no specific evidence as to from what date the firm started functioning from the particular prem ises in question
Secondly it was emphasised by Mr Mehta that the partnership deed was a camouflage
It is evident from the sales tax registration and other registration certificates and licences under the Shops and Establishments Act that the partnership was registered in the name of the appellant and the appellant was also indicated as a partner
It was so in the Income Tax returns and assessments
There fore it was submitted that the Court of Small Causes com mitted an error of law resulting in miscarriage of justice
It was submitted by Mr Mehta that once it was accepted that the partnership deed was a mere camouflage the other subse quent acts and conducts were merely ancillary and were put in a formal way
But the question is from the three deeds itself which were examined in detail by the Court 298 of Small Causes and which were re examined by the High Court could it be said unequivocally that there was no partner ship
The deeds gave the appellant the right to share the profits and made him agent for certain limited purposes of the firm and there was evidence that the partnership deeds were acted upon
There was evidence of suit of dissolution of the partnership where none of the partners took the plea that it was a false or a fictitious document
Though the decree in the dissolution suit was not binding in these proceedings inter se between the parties as partners it is a piece of evidence which cannot be wholly ignored
All these factors were present before the Court of Small Causes
These were reappraised by the High Court
One point was emphasised by Mr Mehta that in the partnership deed which is not necessary to recite the terms the petitioner was completely excluded in operating the bank accounts etc
There is nothing inherently illegal or improbable making a provision of such a type
In the eye of law such a clause is really non sequitur or neutral proving neither the exist ence nor non existence of a genuine firm
The first partnership deed which is Exhibit 114 is dated 13th October 1960
It recited that the partnership firm should be presently started at Ahmedabad and the same should later be started in another city
In this the appellant was not a partner
Exhibit 69 at page 136 of Volume II of the paper book is a partnership deed wherein Girdharlal the father of the Appellant No 1 and the appellant No 1 joined as partners
It recited that the partnership started from 4th of October 1960 at Ahmedabad
It was registered in the name of 7th and 8th partners Girdharlal who was the appel lant and his father
It was recited that the work of the partnership would be done by the parties of the fourth fifth sixth seventh and eighth as per advice and instruc tions of the first second and third
All the work had been done by some of the partners of which appellants were not parties and that they had to do the said work as per in structions of the other partners
Clauses 6 and 7 of the said partnership deed recited inter alia as follows 6
The year of accounts of our partnership shall be Aso Vadi 30th day ie Diwali and the first account year is decided to be the Aso Vadi 30th day of Samvat Year 2017
While settling accounts at the close of the year 33 amount from the sum which may remain as net profit after deducting all expenditures viz interest discount rent of the shop rent of the godown insurance brokerage travelling tele grams postage salaries of employees etc
shall 299 be carried to Reserve Fund and thereafter in the sum that remains as net profit the shares of us the partners have been fixed as under Rs Np
Ratanlal Jivabhai
0 16 2
Manubhai Lalbhai
0 16 3
Keshavlal Mulchand
0 05 4
Kantilal Bhogilal
0 10 5
Virchand Keshavji
0 23 6
Satyapal Jeshal
0 24 7
Girdharlal Chimanlal
0 03 8
Helper Girdharlal
0 03 0 100 ie Re 1 7
While settling accounts at the close of the year if the sum less than Rs 1500 falls to the 0 03 shares of the partners of the seventh and eighth parts the amount falling short has to be debited towards the head of expenditure and Rs 1500 fifteen hundred only have to be paid in full to each of them two and in those circumstances or if there be loss the parties of the seventh or eighth parts have not been held liable therefore and in the year or  losses it has been decided to pay Rs 1500 fifteen hundred only to each of them after debiting the same towards the head of expenditure and in the year of losses nothing has to be carried to the Reserve Fund  and the loss has to be borne by us to parties first to sixth parts in the following proportion 1
Ratanlal Jivabhai 0 17 2
Manubhai Lalbhai 0 17 3
Keshavlal Mulchand 0 05 4
Kantilal Bhogilal 0 11 5
Virchand Keshavji 0 25 6
Satyapal Jeshal 0 25 0 100 ie Re 1 300 Clause 8 empowered the operating of the bank accounts by partners other than the appellant and his father
We find intrinsically nothing improbable
It is embodied in the deeds the functioning of the partnership
The third partner ship which is dated 22nd of September 1961 also indicates as parties of sixth part the name of the appellant
The relevant portion of the partnership deed reads as follows To wit the parties of the first to sixth parts out of us deceased Khristi Girdharbhai Chimanlal and Shah Virchand Keshavji had jointly started the business of manufacturing and selling Neon Signs Tubes in partnership in Ahmedabad from 4101960 in the name and style of Bharat Neon Signs
However on account of the death of Khristi Girdharbhai Chimanlal on 1261 and other reasons the said partnership was dissolved from 8961
Thereafter we the parties from the first to seventh part have after purchasing at its cost price all the debts and dues goods stock etc together with goodwill of the dissolved partnership started manufac turing and selling of Neon Signs Tubes in partnership from 9961
We the parties of all the seven parts execute the deed of the said partnership to day ie 22961
The terms and conditions thereof are as under 1 The entire work of our partnership has to be carried out in the name of Bharat Neon Signs
 2 The work to be carried out by our partnership is of manufacturing and selling Neon Signs Tubes and of obtaining orders therefore
3 Whatever moneys that may be required to be invested in our partnership are to be invested by the parties of the first second third fourth and seventh parts out of us and the interest at the rate of 712 per cent per annum has to be paid for the moneys that may be invested in this partnership
 We are of the opinion that these were evidence that these terms were acted upon
There was nothing intrinsically wrong in law in constituting a partnership in the manner it was done
It was contended by Mr Mehta that there was no agency reading the partnership deeds as we have read that conclusion does not emanate from position 301 appearing debiting the fixed amount payable to the appellant in the expenses account which also is not inconsistent with partnership
This is also not inconsistent with treating the rent of the firm in the context of the total expenditure of the firm
In any event all these factors were considered by the Court of Small Causes bearing in mind the correct legal principles
The High Court on a reappraisal of these very evidence came to the conclusion that the partnerships were camouflages and were not acted upon and in fact and in reality the partnership firm was a sub tenant of the appel lant herein
The question is can the High Court do so in law
The power of the High Court to revise the order is contained in section 292 of the Bombay Rent Act as applicable at the relevant time to Gujarat The said provision reads as fol lows 292 no further appeal shall lie against any decision in appeal under sub section 1 but the High Court may for the purpose of satisfying itself that any such decision in appeal was according to law call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit
 The ambit and power of revision generally and in particular with respect to the provisions with which we are concerned have from time to time come up for consideration by this Court
This Court in Hari Shankar vs Rao Girdhari Lal Chowd hury  had to consider section 351 of the Delhi  Ajmer Rent Corntrol Act 1952
The said section reads as follows 351 The High Court may at any time call for the record of any case under this Act for the purpose of satisfying itself that a decision made therein is according to law and may pass such order in relation thereto as it thinks fit
 It was held in the majority judgment by HidayatuIIah J as the learned Chief Justice then was that though section 35 of the Delhi and Ajmer Rent Control Act was worded in general terms but it did not create a right to have the case re heard
This Court emphasised that the distinction between an appeal and revision is a real one
A right to appeal carries with it right of re heating on law as well as fact unless the statute conferring the right to appeal limits the re hearing in some 302 way
The power to hear a revision is generally given to a superior court so that it may satisfy itself that a particu lar case is decided according to law
The expression ac cording to law in section 35 of the said Act referred to the decision as a whole and was not to be equated to errors of law or of fact simpliciter
This Court was of the view that what the High Court could see is that there has been no miscarriage of justice and that the decision was according to law in the sense mentioned
Kapur J who delivered a separate judgment however observed that the power under section 351 of the said Act of interference by the High Court is not restricted to a proper trial according to law or error in regard to onus of proof or proper opportunity of being heard
It is very much wider than that when in the opinion of the High Court the decision is erroneous on the question of law which affects the merits of the case or decision was manifestly unjust the High Court is entitled to interfere
The revisional authority could ensure that there was no miscarriage of justice and the principles of law have been correctly borne in mind the facts had been properly comprehended in that light
If that was done in a particular case then the fact that the revisional authority or the High Court might have arrived to a different conclusion is irrel evant
This view had also been expressed in the decision of this Court in Puranchand vs Motilal 1963 Supp 2 SCR 906
This principle was reiterated in Krishnawati vs Hans Raj  which was dealing with section 392 of the Delhi Rent Control Act 1958 in second appeal
It was observed that under section 392 of the said Act the High Court could interfere in second appeal only if there was a substantial question of law
In that case the question whether the appellant was legally married no find ing was necessary in the eviction suit
It was sufficient for the rent court to proceed on the finding that the appel lant and S were living together as husband and wife whether they were legally married or not
It was further held that whether there was subletting was not a mixed question of law and fact
In Phiroze Bamanji Desai vs Chandrakant M Patel  Ors  the question involved was whether there was reasonable and bona fide requirement of premises for personal use and occupation as also the question of greater hardship under the Bombay Rent Act and the ambit and scope of the power of Section 293 of the said Act with which we are concerned came up for consideration
Bhagwati J as the learned Chief Justice then was referred with approval the observations of Hidayatullah J referred to hereinbefore in Hari Shankar s case supra
Bhagwati J observed that the ambit of section 351 of the Delhi  Ajmer Rent Control Act which fell for consideration in Hari Shanker s case supra was the same as section 293 of the Bombay Rent Act and therefore he expressed the opinion that the 303 High Court could interfere only if there was miscarriage of justice due to mistake of law
We must take note of a decision in the case of Ms Kasturbhai Ramchand Panchal  Brothers and Others vs Firm of Mohanlal Nathubhai and Others  upon which the High Court had placed great reliance in the judg ment under appeal
There the learned judge relying on sec tion 292 of the said Act held that the revisional power with which the High Court was vested under section 292 was not merely in the nature of jurisdictional control
It extended to corrections of all errors which would make the decision contrary to law
The legislature the learned Judge felt further empowered High Court in its revisional jurisdiction to pass such order with respect thereto as it thought fit
The power according to the learned Judge was of the widest amplitude to pass such orders as the Court thought fit in order to do complete justice
He dealt with the human problem under section 132 of Bombay Rent Act considering the relative hardships of the landlord and the tenant and to arrive at a just solution he was of the opin ion that the court should have such wide field
The juris diction of High Court is to correct all errors of law going to the root of the decision which would in such cases include even perverse findings of facts perverse in the sense that no reasonable person acting judicially and properly instructed in the relevant law could arrive at such a finding on the evidence on the record
In this view in our opinion the ambit of the power was expressed in rather wide amplitude
As we read the power the High Court must ensure that the principles of law have been correctly borne in mind
Secondly the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind
It must be such a decision which no reasonable man could have arrived at
Lastly such a decision does not lead to a miscarriage of justice
We must however guard our selves against permitting in the guise of revision substitu tion of one view where two views are possible and the Court of Small Causes has taken a particular view
If a possible view has been taken the High Court would be exceeding its jurisdiction to substitute its own view with that the courts below because it considers it to be a better view
The fact that the High Court would have taken a different view is wholly irrelevant
Judged by that standard we are of the opinion that the High Court in this case had exceeded its jurisdiction
In the case of Punamchandra Revashankar Joshi vs Ramjib hai Maganlal Gujarat Law Reporter 1966 at page 807 the Gujarat High Court after dealing with the Gujarat Amendment Act XVIII of 1965 304 observed that the Legislature has not intended to equate the ambit of the power with the one exercised in an appeal
The authority vested in the High Court under the amendment still remained only in the domain of the jurisdiction and power of revision and no further
The amending provision therefore only related to procedure and not to any rights of the parties
This Court in the case of Bhai Chand Ratanshi vs Laxmis hanker Tribhavan 1982 1 Rent Control Journal 242 observed that where lower courts applied their minds properly in deciding a matter under section 132 of the Bombay Rent Act the High Court could not substitute its own finding for the one reached by the courts below on a reappraisal of evidence under section 292 of the Act as substituted by the Gujarat Act 18 of 1965
This Court reiterated that although the High Court had wider power than that which could be exercised under section 115 of CPC yet its revisional power could only be exercised for a limited purpose with a view to satisfying itself that the decision was according to law
The High Court could not substitute its own finding for the one reached by the courts below on a reappraisal of evidence
In the instant case the basic question is whether keep ing in background the partnership deeds referred to herein before and the facts that came to light was there partner ship or not
Sharing of profits and contributing to losses were not the only elements in a partnership existence of agency was essential and whether there was a partnership or not is a mixed question of law and fact depending upon the varying circumstances in different cases
This view was reiterated by Chief Justice Beaumont in Chimanram Motilal and another vs Jayantilal Chhaganlal and another AIR 1939 Bombay 410
Ramaswami J in Mohammed Musa Sahib dead and others vs NK Mohammed Ghouse Sahib and another AIR 1959 Madras 379 observed that whether the relation of part nership between two or more persons does or does not exit must depend on the real intention and contract of the par ties and not merely on their expressed intention
He also referred to section 4 of the Partnership Act about the principles of partnership namely 1 there must be agree ment entered into by all the persons concerned 2 the agreement must be to share the profits of a business and 3 the business must be carried on by all or any of the persons concerned acting for all
In the instant case judged by the aforesaid principles it is possible to hold that there was a partnership of which the appellant was a part ner
The Court of Small Causes considered these principles evaluated the evidence and held that there was in fact and in law a partnership
Such a view was not an impossible one or a perverse one
305 If that was so there was nothing that could be clone about such a view within the ambit and scope of the power of section 292 of the Rent Act
We may mention that in Gunda lapalli Rangamannar Chetty vs Desu Rangiah and others AIR 1954 Madras 182 Subba Rao J as the learned Chief Justice then was held that there cannot be a subletting unless the lessee parted with legal possession
The mere fact that another is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub lease
In the light of the aforesaid principles and the facts that have emerged we are of the opinion that the High Court exceeded its jurisdiction under section 292 of the Rent Act
We are further of the opinion that the Court of Small Causes was right in the view it took and it was a possible view to take
In the result the appeal is allowed and the judgment and order of the Gujarat High Court dated 21st of August 1979 are set aside
The order and judgment of the Court of Small Causes Ahmedabad dated 18th of August 1977 are restored
The suit for possession is accordingly dis missed
The appellant herein is entitled to the costs throughout
PSS Appeal allowed


Summary:
Sub section 2 of section 29 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 as it stood at the relevant time barred further appeal against any decision in appeal under sub section
1 and instead conferred revisionary powers on the High Court in such a case
The appellant tenant was a partner in firm A  which was carrying on business of manufacturing cloth in the suit premises
That business was closed on October 4 1960 and a new firm B  came into being to run the business in manufac turing and selling neon sign tubes
On October 13 1960 a partnership deed was executed by six persons as partners of the new firm
The document was silent as to where the busi ness was started
On or about October 24 1960 another partnership deed was executed by these six persons and the appellant and his father with an agreement to share only profits to the extent of 3 paise in a rupee
After the death of the appellant on February 1 1961 a new partnership deed was executed by the remaining seven partners with the same terms and conditions
The respondent landlord filed eviction suits against the appellant defendant alleging that the premises which were leased to the appellant for manufacturing cloth in the name of firm A  had been unlawfully sublet in major part to defendants 2 to 5 who were running business in partnership for manufacturing neon signs
The appellant contended that firm A  was not the tenant of the suit premises that his father was the original tenant with whom he had joined in business as a partner in firm A  that the suit premises were to be used for business and he 290 could use it for any business that he had joined firm B  in partnership that the suit premises was with him and defendants 2105 had not acquired any tenancy rights in the suit premises and that lie had filed a civil suit to dis solve the partnership and to take account which was later decreed in his favour and affirmed in appeal
The trial court held that there was unlawful subletting and decreed the suit for possession
The appellate court Court of Small Causes found that the appellant was only carrying on the business in partnership with defendants 2 to 5 in the name of firm B  in the suit premises and held that there was no subletting change of user and breach of terms of tenancy
The High Court in revision on a reapprais al of evidence took the view that the partnership was a camouflage and was never acted upon and in fact and in reality the partnership firm was a sub tenant of the appel lant
In the appeal by special leave it was contended for the appellant that there was a genuine partnership which was acted upon and this finding of the appellate court could not have been reversed by the High Court in revision under section 292 of the Act
For the respondents it was contended that the original first partnership deed did not mention that the appellant or his father was a partner that it was in the second partnership deed that the appellant and his father joined the firm that there was a gap of time when there was user by the partnership firm of the premises in question when the appellant was not a member of the firm which fact was not considered by the appellate court and that the partnership deed was a camouflage
Allowing the appeal HELD 1
The High Court exceeded its jurisdiction under section 292 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 in reversing the view of the appellate court
305BC 21 The distinction between an appeal and revision is a real one
A right to appeal carries with it a right of re hearing on law as well as fact unless the statute confer ring the right to appeal limits the re hearing in some way
The power to hear a revision is generally given to a superi or court to ensure that the principles of law have been correctly borne in mind that the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind that the decision is such which a reasonable man could have arrived at and which does not lead to a miscarriage of justice
301H 302A 303EF 291 22 The Court must guard itself against permitting in the guise of revision substitution of one view where two views are possible and the appellate court has taken a particular view
If a possible view has been taken the High Court would be exceeding its jurisdiction to substitute its own view with that of the courts below because it considers it to be a better law
The fact that the High Court would have taken a different view is wholly irrelevant
Whether there was a partnership or not is a mixed question of law and fact depending upon the varying circumstances in dif ferent cases
303FG 304E Hari Shankar vs Rao Girdhari Lal Chowdhiry   Puranchand vs Motilal 1963 Suppl
2 SCR 906 Krishnawati vs Hans Rai   Phiroze Bamanji Desai vs Chandrakant M Patel  Ors   Bhai Chand Ratanshi vs Laxmishankar Tribhavan 1982 1 Rent Control Journal 242 Ms Kasturbhai Ramchand Panchal  Brothers and Others vs Firm of Mohanlal Nathubhai and Oth ers and Punamchandra Revashankar Joshi vs Ramjibhai Maganlal
7 Gujarat Law Reporter 1966 at page 807 referred to
In the instant case the Court of Small Causes consid ered the principles of law evaluated the evidence and held that there was in fact and in law a partnership
Such a view was not an impossible one or a perverse one
Therefore there was nothing that could be done about such a view within the ambit and scope of the revisional powers under section 292 of the Act and the High Court could not have substi tuted its own finding for the one reached by the appellate court
404H 305A 304D 3
Whether the ingredients of partnership as embodied in the law of partnership were there or not in a particular case must be judged in the fight of principles applicable to partnership that is 1 there must be an agreement entered into by all the persons concerned 2 the agreement must be to share the profits of a business and 3 the business must be carried ou by all or any of the persons concerned acting for all
Sharing of profits and contributing to losses are not the only elements in a partnership existence of agency is essential
296FG 304G 304E Chimanram Motilal and Another vs Jayantilal Chhaganlal and another AIR 1939 Bombay 410 and Mohammed Musa Sahib dead and Others vs NK Mohammed Ghouse Sahib and Another  referred to
In the instant case judged by these principles it could not be said 292 unequivocally that there was no partnership
The partnership deeds gave the appellant the right to share the profits  and made him an agent for certain limited purposes of the firm and there was evidence that the partnership deeds were acted upon
It is true that the bank accounts were not to be operated by the appellant that he was to be given a fixed percentage of profit irrespective of profit and that he was not to share the losses
There is nothing inherently illegal or improper in making provision of such a type
In the eyes of law such a claim is really non sequitur or neutral prov ing neither the existence nor non existence of a genuine firm
The appellant was to bring in his asset being the tenancy of the premises in question for the user of the partnership
Debiting the fixed amount payable to the appel lant in the expenses account is also not inconsistent with partnership
This is also not inconsistent with treating the rent of the firm in the context of the total expenditure of the firm
There was evidence of a suit of dissolution of the partnership where none of the partners took the plea that it was a false or a fictitious document
Though the decree in the dissolution suit was not binding in these proceedings inter se between the parties as partners it is a piece of evidence which cannot be wholly ignored
All these factors were present before the appellate court
These were reap praised by the High Court
304G 298A 297B 298C 297C 301A 298B 4
The partnership firm was carrying on business in the premises in question since October 4 1961
If there was such a partnership firm of which the appellant was a partner as a tenant the same would not amount to subletting leading to forfeiture of the tenancy for there cannot be a sublet ting unless the lessee parted with the legal possession
The mere fact that another person is allowed to use the premises while the lessee retains the legal possession is not enough to create a sublease
294FG 305B Madras Bangalore Transport Co West vs Inder Singh and others  Mehta Jagjivan Vanechand vs Doshi Vanechand Harakhchand and others AIR 1972 Gujarat 6 and Gundalapalii Rangamannar Chetty vs Desu Rangiah and others AIR 1954 Madras 182 referred to