1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.30 of 2011 1. M/s Goa Steel Traders, A Partnership firm having its registered Office at Shop Nos. 8, 9, 10, 11 and 12 of the ground floor below Smt. Durgabhai Raiturkar Hospital, Opposite E.S.I. Hospital, near Rajendra Prasad Stadium, Margao, Goa through its partners. a. Shri Purushottam Mathurdas Raythata of Major age,businessman, b. Shri Kamal Nayan Kantilal Mehta, of Major age, businessman, c. Shri Natwarlal N. Kotecha of major age, businessman d. Shri Chandrakant alias Chandubhai M. Raithata of Major age, businessman, e. Shri Vijaykumar J. Mehta, of Major age,businessman, and f. Shri Bimalkumar K. Mehta, of Major age,businessman, All c/o Shop Nos.8, 9, 10, 11 and 12 of the ground floor below Smt. Durgabai Raiturkar Hospital, Opposite E.S.I. Hospital, near Rajendra Prasad Stadium, Margao, Goa through its partners 2. Shri Chandubhai Raithata, of major age, businessman And resident of H. no. Not known, Near Masjid, Pajifond, Margao, Goa. ..Appellants. Versus 2 1. Dr. Shrikant Raia Poi Raiturkar (deceased) through L.Rs. a. Smt. Sabita Deepak Prabhudessai, d/o. Late Shri Shrikant Raia Poi Raiturkar of major age, employed And her husband b. Shri Deepak Ramdas Prabhudessai, d/o. late Shri Ramdas Prabhudessai, of major age, businessman, and c. Anita Shrikant Pai Raiturkar d/o. late Shri Shrikant Raia Poi Raiturkar of major age, employed , all residents of H. No. 39, Palmar alto Betim Taluka, Bardez Goa. 2. Smt. Anjani Shrikant Pai Raiturkar, w/o late Shri Shrikant Raia Poi Raiturkar, of major age, Housewife, resident of H. No. 39, Palmar alto Betim Taluka, Bardez Goa. …..Respondents. Mr. C. A. Coutinho, Advocate for the appellants. Mr. S. D. Lotlikar, Senior Advocate with Ms. S. Pai Kir, Advocate for the respondents. CORAM : A. P. LAVANDE, J. RESERVED ON : 23 rd August, 2011 PRONOUNCED ON : 29 th August, 2011 ORDER : Heard Mr. Coutinho, learned Counsel for the appellants and Mr. Lotlikar, learned Senior Counsel for the respondents. 3 2. By this Second Appeal, the appellants take exception to the judgment and decree dated 24th September, 2010 passed by the District Judge-I, FTC at Margao in Regular Civil Appeal No.102/2010 by which the appeal preferred against the judgment and decree dated 23rd December, 2009 passed by the learned Civil Judge, Junior Division, Margao in Regular Civil Suit No.153/2000/C has been partly allowed. 3. The respondents filed the above suit against the appellants herein seeking the following reliefs : “(a) by way of permanent injunction, the defendants, their agents, servants, relatives and representatives be restrained from allowing the dirty water to pass in the open space of the building; (b) by way of mandatory injunction, the defendants be ordered to remove the pipeline put in the suit shops and to remove the concreting done on the septic tanks. (c) The defendant no.2 be restrained from carrying on any business in the suit premises; (d) The defendant no.2 be restrained from 4 utilising the open space for starting any open air restaurant.” 4. The suit was contested by the defendants. The trial Court by judgment and decree dated 23rd December, 2009 dismissed the suit. The lower appellate Court partly allowed the appeal and restrained the defendants from allowing dirty water to pass upon the space of the building and directed to remove pipeline put in the suit shops/ suit premises. The defendant no.2 has been further restrained from carrying on any business in the premises and are also restrained from utilising the open space for starting any open-air restaurant. 5. The suit was filed by the plaintiffs primarily on the ground that defendant no.1 was lessee of the suit shops along with the open space and defendant no.1 was not entitled to assign, transfer or sublet any part thereof. However, defendant no.1 sublet the premises to defendant no.2, who converted the suit shop into the restaurant and put up pipeline in order to allow the dirty water to pass in the backside of the suit premises. Defendant no.2 was Shri Chandubhai Kotecha, who filed the written statement. Thereafter, amendment was carried out in the cause title 5 and defendant no.2 was substituted by Shri Chandubhai Raithata, who did not file any separate written statement. The trial Court, upon appreciation of the evidence led by the parties, dismissed the suit. The lower appellate Court partly allowed the appeal in aforesaid terms. 6. Mr. Coutinho, learned Counsel for the appellant submitted that the lower appellate Court could not have granted injunction against defendant no.2 from carrying on any business in the suit premises in as much as he is admittedly a partner as disclosed from the registration certificate issued by the Registrar of Firms. He further submitted that the finding recorded by the lower appellate Court that defendant no.1 has sublet the premises to defendant no.2, in the absence of any evidence having been led by the plaintiffs that the transfer was upon payment of compensation or price is perverse. In support of his submissions, Mr. Coutinho relied upon the judgment of the Apex Court in the case of Celina Coelho Pereira (Ms) and Others Vs. Ulhas Mahabaleshwar Kholkar; (2010)1 SCC 217. Learned Counsel, therefore, submitted that the decree in so far as it restrains defendant no.2 from carrying on any business in the suit premises, is unsustainable in law and, therefore, deserves to be set aside. 6 7. Per contra, Mr. Lotlikar, learned Senior Counsel appearing for the respondents has submitted that defendant no.2 in his cross-examination has clearly admitted that he was carrying on the business of fast food in the suit premises in his own right and not as partner of appellant no.1 and as such, the finding recorded by the lower appellate Court that the premises were sublet in favour of respondent/ defendant no.2 cannot be faulted. According to learned Senior Counsel, once the exclusive possession of the leased premises let out for commercial purpose is proved to be in possession of a third person other than the lessee, the presumption arises that it is for consideration and in such a case, the lessor is not expected to lead any evidence to prove payment of rent/ compensation by sub-lessee to lessee. According to the learned Counsel, the lower appellate Court has rightly restrained defendant no.2 from carrying on any business in the suit premises and the same must be construed as restraint against defendant no.2 from carrying on any business in the suit premises in his individual capacity and not as a partner of the firm. 8. Having heard the learned Counsel for the parties and having perused the record, I am of the considered 7 opinion that no fault can be found with the impugned judgment and decree. The lower appellate Court, after making reference to the evidence of defendant no.2 in which he clearly admitted that he was carrying on fast food business in the suit premises in his individual capacity, was justified in holding that defendant no.1 has sublet the premises to defendant no.2. I find merit in the submission of Mr. Lotlikar that once exclusive possession of commercial premises is transferred by the lessee to a third person in the absence of any explanation coming forth from the tenant as to the terms and conditions upon which the transaction has been entered into between the lessee and the third person, it is legitimate for the Court to hold that there was sub- tenancy. In my considered view, the ratio laid down in the case of Celina Coelho Pereira (supra) is not applicable since the factual matrix in the said judgment is entirely different. The order of the lower appellate Court restraining defendant no.2 from carrying on any business in the suit premises must be construed as restraint against defendant no.2 from carrying on any business in his individual capacity to the exclusion of other partners. Therefore, in my considered opinion, no fault can be found with the judgment and decree passed by the lower appellate Court. The lower appellate Court was perfectly justified in partly reversing 8 the decree passed passed by the trial Court on the basis of the evidence led by the parties. 9. In the result, therefore, I do not find any merit in Second Appeal. In my opinion, no substantial question of law is involved in the appeal. Hence, the appeal is rejected. A. P. LAVANDE, J. SMA