C.R.No.5911 of 2011 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. C.R.No.5911 of 2011 Date of decision: 26.9.2011 Satish Kumar ...Petitioner vs Smt.Bimla Devi Sood and others ......Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.Parteek Pandit, Advocate, for the petitioner. -- Rakesh Kumar Garg,J. This tenant's revision petition challenging the impugned judgment of the Appellate Authority dated 25.07.2011 whereby while accepting the appeal of the landlord against the order of dismissal of the ejectment petition dated 15.9.2009, eviction of the petitioner has been ordered on the ground of subletting. The brief facts for the disposal of this petition are that respondent No.1 Bimla Devi Sood filed an ejectment application against Shri Roshan Lal (predecessor-in-interest of respondents No. 2 to 4) on the averments that he was inducted as tenant in the demised premises who was earlier carrying out his business in the demised shop but thereafter he started running STD/PCO in one of the shop in the building owned and possessed by him. He left the business from the demised premises altogether and had delivered the exclusive possession thereof to the petitioner who was running the business of selling clothes under the name C.R.No.5911 of 2011 2 and style of M/s Shalimar Cloth House, Sadar Bazar, Kapurthala. Thus, respondent No.2 had parted with the possession of the demised premises in favour of the petitioner without any consent of the landlord and had created a sublease in a secret manner and, thus, they were liable to be ejected. Upon notice Roshan Lal filed written statement wherein it was denied that he had sublet the premises in favour of the petitioner. It was further averred that after taking demised premises on rent, Roshan Lal started business of selling clothes under the name and style of Shalimar Cloth House although he had started the work of STC/PCO but it was denied that the exclusive possession of the demised premises was given to the petitioner as he was still partner in the business of cloth being carried out in the demised premises and the partnership was not dissolved. It was further submitted that running of STD/PCO was his additional business. Other averments were denied and prayer for dismissal of the ejectment petition was made. Petitioner filed written statement on the same lines as that of respondent Roshan Lal. After hearing learned counsel for the parties and considering the evidence on record, the Rent Controller dismissed the ejectment application. Aggrieved by the impugned order of the Rent Controller respondent No.1 filed an appeal before the Appellate Authority, which was accepted by the impugned judgment dated 25.7.2011. While accepting the appeal the Appellate Authority found that in the income tax returns Ex.P1 to P4 which relates to the income of the petitioner Satish Kumar as proprietor of Shalimar cloth House nothing is mentioned about the profit earned by Roshan Lal. Similarly, in the income C.R.No.5911 of 2011 3 tax returns Ex.P5 to P8 which pertains to Roshan Lal deceased shows that he did not have any income from his alleged share in the Shalimar Cloth House in which he alleged himself to be a partner. Thus, in case Roshan Lal remained a partner in Shalimar Cloth House as pleaded then the income tax return should have been in the name of partnership firm and not in the name of Satish Kumar as proprietor of the firm. The petitioner has not produced any bill or ledger to show any income or profits distributed to Roshan Lal. The Hon'ble Supreme Court in in the case of M/s Celina Coelho Pereira Vs. Ulhas Mahabaleshwar Kholkar, 2009(2)RCR 456, held that if the purpose of constituting partnership by the tenant is ostensible and a deed of partnership is drawn to conceal the real transaction of subletting in a given case, the court may be required to lift the veil of partnership to find out the real nature of transaction entered into by the tenant. So non production of account books, ledger inferences go against the respondent/tenant. Therefore, it has been clearly established that the partnership was not at all is genuine partnership and was created only to circumvent the provisions of the Rent Act. The Appellate Authority also found that the petitioner is actively associated with the business and used to manage and control the tenanted premises and Roshan Lal was neither conducting any business nor sharing profits and, thus, it was clearly proved that Satish Kumar petitioner was in exclusive control of the tenanted premises as well as in the business and and there was no partnership created between the petitioner as well as Roshan Lal and it was a clear case of subtenancy. It may also be noticed that the petitioner has been found to be in exclusive possession of the C.R.No.5911 of 2011 4 demised premises and therefore, it was for the petitioner as well as Roshan Lal to show in what capacity he was in possession of the demised premises. As per the pleadings petitioner was partner in the firm M/s Shalimar Cloth House along with Roshan Lal who was in exclusive. Possession of the demised premises. However, the said plea is not supported by any evidence on record to establish the partnership of the two, rather from the income tax record of the petitioner and Roshan Lal, it is clearly made out that the business of selling cloth in the name of Shalimar Cloth House is the sole partnership of Satish Kumar petitioner. Thus, no fault can be found in the findings of the Appellate Authority that respondent tenant Roshan Lal has parted with the possession exclusively in favour of the petitioner without the consent of the respondent landlord and was liable to be evicted. No other point has been pressed or argued. For the reasons recorded above, I find no merit in this revision petition and the same is dismissed. ( Rakesh Kumar Garg ) Judge September 26, 2011 rk