1 38-cra249-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION CIVIL REVISION APPLICATION NO. 249 OF 2011 Chandulal Chhaganlal Bafna & Ors. .. Applicants V/s. Prabhakar Baburao Phule & Ors. .. Respondents ..... Mr. Gupte D. M. for the applicants. Mr. Rahul S. Kadam for the respondent Nos.1 to 7. ..... CORAM : A.S.OKA, J. DATE : NOVEMBER 28, 2011. P.C.: Heard the learned counsel appearing for the applicants. Applicants are the legal representatives of the first defendant- tenant. The suit was filed by the predecessor of the first to seventh respondents for possession in respect of the suit premises which is a shop premises. The suit was filed on various grounds such as arrears of rent, non user, carrying out additions and alterations, and illegal subletting by the original first defendant-tenant in favour of the second defendant. The trial Court upheld the ground of arrears of rent, carrying out additions and alterations and illegal subletting. The Appellate Court has confirmed the decree only on the grounds of subletting and arrears of rent. 2. The submission of the learned counsel appearing for the 2 38-cra249-11 applicants is that as far as subletting is concerned, there is absolutely no evidence. There is no evidence to show that any consideration was paid to the original first defendant by the second defendant M/s. Jaan Tours and Travels. He submitted that only on the basis of the visiting card in the name of the second defendant showing the address of suit premises, an inference of sub-tenancy cannot be drawn. He submitted that there is no evidence to show that the original first defendant-tenant parted with possession to a stranger. He submitted that an application was made by the original plaintiff before the Appellate Court alleging that the applicants have inducted another third party in the suit premises. The application was ordered to be heard along with the Appeal. He submitted that without giving an opportunity to the applicants to lead evidence, the contention of the original plaintiff in the said application has been accepted by the Appellate Court. He submitted that on the ground of arrears of rent, the Appellate Court has not recorded any proper finding. 3. I have carefully considered the submissions. The allegation made by the original plaintiff is that the original first defendant who was admittedly the tenant had sub-let the suit premises to the second defendant M/s. Jaan Tour and Travels. The documentary evidence produced on record was in the form of photographs showing creation of a separate cabin in the suit premises for the 3 38-cra249-11 use of M/s. Jaan Tours and Travels and visiting cards of M/s. Jaan Tours and Travels showing the address of the suit premises. The specific case made out by the original first defendant in the written statement was that it was his partnership business. 4. In support of the plea of partnership, the applicants produced a certificate under the Bombay Shops and Establishment Act, 1948. The constituted attorney of the first defendant-tenant stepped into the witness box. However, he has not stated anything as to whether there is any partnership deed. The trial Court has observed that he stated that the books of accounts in respect of the partnership were with him but he did not produce the said books. The witness admitted that the suit premises was partitioned and in one portion, the business of M/s. Jaan Tour and Travels was being carried on and in other portion the business of Mahendra General Stores was being carried on. For non production of the material documents like partnership deed and books of accounts, an adverse inference has been drawn against the applicants and that is why the case made out by the original plaintiff regarding illegal subletting by the first defendant has been accepted by the trial Court. When a stranger M/s. Jaan Tours and Travels was admittedly in possession of a part of the suit premises, the burden was on the first defendant to state and prove in what capacity the said third party was present. The said burden has not been 4 38-cra249-11 discharged. 5. In paragraph No.13 of the Judgment, the Appellate Court has dealt with the issue of legal sub-letting by the first defendant to the second defendant. The Appellate Court has observed that M/s. Jaan Tour and Travels is having a separate telephone connection and its business was carried on in a separate cabin. To show that the original first defendant had control over the said business, no documentary evidence of existence of partnership was produced and that is why the Appellate Court has held that the control of a part of the suit premises was with M/s. Jaan Tours and Travels. Even if the allegation made during the pendency of the Appeal regarding inducting one Sandip Subhash Nade in the suit premises is ignored, there are concurrent findings recorded by the Courts below that the first defendant had sub-let the suit premises to the second defendant. In revisional jurisdiction, the said findings cannot be interfered with and therefore, the decree for eviction passed by the Courts below cannot be disturbed. Hence, it is not necessary to deal with the other ground of eviction. 6. There is no merit in the Revision Application and the same is rejected. 7. At this stage, the learned counsel appearing for the applicants seeks time to vacate. The prayer is opposed by the 5 38-cra249-11 learned counsel appearing for the respondent Nos. 1 to 7. 8. Considering the facts and circumstances of the case, it is directed that the decree for eviction shall not be executed for a period of six months from today subject to condition of the applicants filing usual undertaking to vacate in this Court within a period of four weeks from today. The undertaking shall specifically state that except the applicants, no other person is in possession of the suit premises. 9. If the aforesaid undertaking is not filed within a period of four weeks from today, the decree of eviction shall forthwith become executable. (A.S.OKA, J.)