S.B.Civil Second Appeal No.143/2008 – M/s Chikku Motors vs. Shri Kashi Ram Date of Judgment : 19/12/2008 1/6 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T M/s Chikku Motors, Bazar vs. Shri Kashi Ram son of No.2, Bhilwara through Ladu Ram Somani, Ramesh Patel Proprietor, Joint Hindu (Actually Partner of Firm Firm Ladu Ram Somani Deepak Automobiles ) C/o Bazar No.2, through power of attorney holder Bhopalganj, Bhilwara. Shri Chittar Mal son of Ram Swaroop Daad r/o near Sanger Bada Mandir, Bhilwara. S.B.CIVIL SECOND APPEAL NO.143/2008 DATE OF JUDGMENT : 19th December, 2008 P R E S E N T HON'BLE DR.JUSTICE VINEET KOTHARI Mr.Suresh Shrimali, for the appellant-defendant. Mr.Dinesh Mehta, for the respondent-plaintiff.. 1. This second appeal has been filed by defendant tenant against the eviction decree passed by the first appellate court on 25/3/2008 reversing the judgment and decree of the learned trial court dated 30/8/2001, whereby, the learned trial court rejected the suit filed by the plaintiff respondent – landlord. 2. The eviction suit was filed inter alia on the ground of default, bonafide necessity of the plaintiff respondent for his sons and change of business and subletting. S.B.Civil Second Appeal No.143/2008 – M/s Chikku Motors vs. Shri Kashi Ram Date of Judgment : 19/12/2008 2/6 3. Learned counsel for the appellant defendant Mr.Suresh Shrimali urged that the suit premises namely shop in question was originally let out by the plaintiff respondent to one Ramesh Patel, Proprietor of M/s Chikku Motors, however, later on said Ramesh Patel entered into partnership with present defendant namely Chittarmal and they commenced the business in the name of M/s Deepak Automobiles. He further submitted that said firm then commenced the business of sale of kerosene oil and since the original tenant Ramesh Patel continued to be partner of the said firm there was no subletting. He submitted that trial court had arrived at the findings in favour of defendant on the basis of relevant evidence which have been wrongly reversed by the first appellate court. He submitted that said Ramesh Patel had 20% share in the profits of the partnership firm and even though he had shifted and gone away to London (UK), it cannot be said that he sublet the suit premises to the present defendant – Chittarmal and Kailash Chandra, the other partners. He, therefore, submitted that substantial question of law arises in the present second appeal for consideration by this Court. 4. On the side opposite, Mr.Dinesh Mehta, learned counsel for the plaintiff respondent vehemently urged that neither the said partnership firm in question was ever registered and, therefore, it does not have any legal entity and cannot sue in its own name as per Section 69 of the Contract Act but also in view of the fact that S.B.Civil Second Appeal No.143/2008 – M/s Chikku Motors vs. Shri Kashi Ram Date of Judgment : 19/12/2008 3/6 original tenant Ramesh Patel had shifted to London (UK) way back in the year 1985-86 and had never returned and the present defendant had commenced new business of sale of kerosene instead of automobile parts, which business was originally carried on by M/s Chikku Motors, and the present second appeal was also filed in the name of M/s Chikku Motors by Shri Chittarmal as power of attorney holder of said Ramesh Patel. He further submits that the first appellate court has clearly found that said partnership firm was a mere cloak or camouflage and there was no partnership between these parties with original tenant Ramesh Patel. 5. Taking the Court through the detail findings of first appellate court on issue no.4, learned counsel for the respondent submitted that DW-3-Kailash Chandra himself had submitted on Ex.5 summons that said Ramesh Patel had left for foreign country and neither any books of accounts of partnership firm nor its registration was produced by the defendant before the learned trial court which could establish any partnership between these parties, therefore, learned first appellate court was justified in holding that the said contention of any partnership carrying on the business in the suit premises with the original tenant Ramesh Patel being partner in the same was unbelievable and was rightly not believed by the first appellate court. He further submitted that the ground of personal bonafide necessity of respondent was also decided against the defendant. He submitted that said Ramesh Patel never appeared in the witness box before the S.B.Civil Second Appeal No.143/2008 – M/s Chikku Motors vs. Shri Kashi Ram Date of Judgment : 19/12/2008 4/6 learned trial court to establish any such partnership between the parties and, therefore, the plaintiff had proved the case of subletting before the learned trial court. He relied on the decision of Supreme Court in case of Parvinder Singh vs. Renu Gautam and others – (2004) 4 SCC 794 in which the Court held that when the partnership is entered into by a tenant as a device to defeat the provisions of rent control laws, the test is whether tenant has parted with user and control of tenancy premises and deed of partnership has been drawn up as an indirect method of collecting consideration for creation of sub-tenancy or for providing a cloak or cover to conceal a transaction not permitted by law is not permissible and the court can tear veil of partnership in this regard. He submits that in the present case also the partnership was merely a camouflage and a false defence has been taken by the defendant. 6. He also relied on the decision of this court in case of Bansilal vs. Mohan Lal – AIR 1995 Rajasthan 167 and Janki Vashdeo Bhojwani vs. Indusind Bank Ltd. - AIR 2005 SC 439. 7. Having gone through the impugned judgment of first appellate court, this Court is of the opinion that the eviction decree passed by the first appellate court reversing the trial court's judgment does not require any interference. The findings of first appellate court of subletting in favour of present defendant holding that the partnership was merely a camouflage and false defence appears to be correct. The S.B.Civil Second Appeal No.143/2008 – M/s Chikku Motors vs. Shri Kashi Ram Date of Judgment : 19/12/2008 5/6 original tenant Ramesh Patel had admittedly shifted to London way back in the year 1985-86 itself and never returned. At least he never appeared before the trial court to depose. No evidence was produced before the trial court to establish such partnership, so much so that said partnership was not even registered with the Registrar of Firms. This was not disputed even by the learned counsel for the appellant defendant. The fact that present appeal has been filed by one Chittarmal as power of attorney holder of original tenant Ramesh Patel also shows that Ramesh Patel has no interest in the said partnership business and said partnership deed was drawn up merely to provide a cover and to make believe that original tenant had not parted with the possession of suit premises in favour of present appellant. 8. Learned counsel for the appellant also could not dispute or deny the contention of plaintiff respondent that the license to carry on the business of kerosene, the changed business, was in the name of present appellant and not in the name of so called partnership firm M/s Deepak Automobiles. The contention of defendant that said original tenant Ramesh Patel comes to Bhilwara and on oral accounts he takes away his share of profits of the partnership firm was too weak and a vague defence to be believed by the first appellate court. Besides the ground of subletting, the eviction decree was passed on the ground of personal bonafide necessity and change of user which are findings of facts and cannot be said to be perverse in any manner. S.B.Civil Second Appeal No.143/2008 – M/s Chikku Motors vs. Shri Kashi Ram Date of Judgment : 19/12/2008 6/6 9. Consequently, this Court is of the considered opinion that present second appeal does not give rise to any substantial question of law which requires consideration by this Court under Section 100 CPC. 10 The second appeal is found to be devoid of merit and the same is accordingly dismissed. No order as to costs. 11. The appellant defendant shall handover vacant and peaceful possession of the shop in question to the plaintiff respondent within a period of two months from today and shall also pay mesne profit to the tune of Rs.5000/- per month from January, 2009 till the date of actual handing over of the vacant and peaceful possession to the plaintiff respondent. If the appellant defendant fails to pay mesne profit or handover vacant and peaceful possession of the shop in question within two months as directed above, the plaintiff respondent shall not only be entitled to execution of the decree in normal course but shall also be entitled to invoke contempt jurisdiction of this Court. (DR.VINEET KOTHARI), J. item no.2 baweja/-