1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.169/2009 -------------------------------------------------------------- Shet Ramnarayan Kisanlal Maniyar Shop its Proprietors- i] Mahendra Ramnarayan Maniyar (since deceased by his heirs) A] Smt.Pushpadevi Mahendrakumar Maniyar and others ..APPLICANTS VERSUS Mukeshchandra Ramdas Bhatiya and others .. RESPONDENTS .... Shri S.V.Gangapurwala,Adv.for applicants Shri P.M.Shah,learned Sr.Counsel, for respondents 1 to 4. ... CORAM : R.K.DESHPANDE,J. DATE :09/11/2009 ORAL ORDER : 1] This revision application is preferred by original tenant against 2 whom an application was filed by landlord for eviction, on several grounds; one of which was under Section 13(1)(e) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as Bombay Rent Act for brevity) on the ground that the tenant has sub let the suit premises in favour of the respondent no.5 M/s Champaklal Nanabhai partnership firm. 2] The learned Joint Civil Judge, Junior Division, Jalgaon decided the Regular Civil Suit No.409/1978 on 23.3.2001, filed by landlord and so far as the ground of sub-letting, with which the present Civil Revision Application relates, a finding was recorded in favour of the applicants that the landlord has failed to establish the ground of sub- letting under Section 13(1)(e) of the Bombay Rent Act. In Regular Civil Appeal No.275/2001 preferred by landlord, the learned Principal District Judge at Jalgaon by his judgment and order dated 16/5/2007, has reversed the finding of sub-tenancy recorded by the trial Court and has held that the tenants-the present applicants have unlawfully assigned or transferred part of the suit premises to the aforesaid firm. It was held that the deed of partnership was sham, bogus and camouflage was created to screen the nature of transaction of sub- letting. This finding is under challenge in the instant Civil Revision 3 Application by the tenant. 3] Shri Gangapurwala, learned counsel for the applicant tenants has urged that the learned Judge of the appellate Court has failed to consider the terms and conditions of the partnership deed at Exh.151 in its proper perspective and has presumed that the said terms are not correct. According to him, there was absolutely no evidence placed on record which required the appellate Court to reverse a finding of real and genuine nature of the transaction i.e. deed of partnership Exh.151 in which applicant no.1 Satish Maniyar the original tenant was shown as the partner of the firm, which is respondent no.5 herein. Shri Gangapurwala in support of his contentions, relied upon the decisions of the Apex Court reported in [1] (2007) 4 Supreme Court Cases 306 Amar Nath Agarwalla V/s Dhillon Transport Agency, [2] AIR 1987 Supreme Court 1782 Helper Girdharbhai V/s Saiyed Mohmad Mirasaheb Kadri and others, [3] 1988 Bombay Rent Cases 64 Punamchand Dahyalal Nanawati V/s Ramanlal Balubhai and others and [4)]1993 Bombay Rent Cases 139 Rameshwar K. Patwa and others V/s Vithaldas Chimanlal and others. According to Mr.Gangapurwala, the partnership deed clearly indicated 10% share of the applicant no.3 but also retained the possession of 1/3 portion of 4 the suit premises for his original business. According to him, there is no evidence on record to show that the respondent no.5 was put in exclusive possession of the suit premises to the exclusion of the applicant no.6. According to him, the evidence on record established that the applicant no.6 continued to retain his control over the entire suit premises. This documentary evidence according to him, could not have been discarded by the appellate Court, particularly in the absence of their being any evidence on record. 4] As against this, Shri P.M.Shah, learned Senior Counsel assisted by Shri Shendurnikar has urged that the judgment of the appellate Court indicates the circumstances which permitted the appellate Court to lift the veil and find out the real nature of the transaction. He pointed out that the findings are recorded by the appellate Court in para 49 and onwards, which include handing over of 2/3 portion of the suit property to the respondent and the nominal 1/3 share of applicant no. 6 in the partnership firm. According to him, the appellate Court has recorded a finding that the applicant no.6 has no role to play in the partnership firm and he was merely to assist the partners. Apart from this,according to him, applicant no.6 Satish has not entered into the witness box. The books of accounts are not produced on record and 5 the appellate Court therefore, taking into consideration the circumstances brought on record, has lifted the veil and found that the transaction in question was not real and genuine but a camouflage. Relying upon the decision of the Apex Court reported in (2004) 4 S.C.C.794 Parvinder Singh V/s Renu Gautan and others and in (2007) 7 S.C.C.675 Santosh Ajit Sachdeva and others V/s Anoopi Shahani, Shri S.V.Gangapurwala has urged that Section 13(1)(e) of the Bombay Rent Act, requires the landlord to establish the transfer of interest in the suit premises by the tenant in favour of the third party. In the light of his submissions which are reproduced above, he has urged that there is failure to establish the transfer of interest by the applicant no.6 in favour of respondent no.5. 5] No doubt the deed of partnership at Exh.151 recites that the applicant no.6 is the partner in which he has share to the extent of 10%. It is true that there is no direct evidence on record to show that any amount of rent was paid by the respondent no.5 to the applicant no.6 evidencing the creation of sub tenancy. In this respect, paragraph nos.8 and 9 of the judgment of the Apex Court reported in (2004) 4 S.C.C. 794 Parvindar Singh V/s Renu Gautam and others are relevant, which are reproduced below : 6 “To defeat the provisions of law, a device is at times adopted by unscrupulous tenants and sub-tenants of bringing into existence a deed of partnership which gives the relationship of tenant and sub tenant an outward appearance of partnership while in effect what has come into existence is a sub- tenancy of parting with possession camouflaged under the cloak of partnership. However, merely because a tenant has entered into a partnership he cannot necessarily be held to have sub-let the premises or parted with possession thereof in favour of his partners. This is a general statement of law which ought to be readin the light of the lease agreement and the law governing the tenancy. If the tenant is actively associated with the partnership business and retains t he use and control over the tenancy premises with him, may be along with thepartners, the tenant may 7 not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant.” 6] It is thus apparent that the existence of deed of partnership between tenant and the alleged sub tenant would not preclude the landlord from bringing on record material and circumstances, by adducing the evidence of by himself to cross examination making out a case of sub letting or parting with possession or interest in tenanted premises by the tenant in favour of the third person. The rule as to exclusion of oral by documentary evidence covers the parties to the deal, in writing. A stranger to the document is not bound by the terms of the document and is therefore, not excluded from demonstrating the 8 untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being. An inquiry into reality of the transaction is not excluded merely by availability of writing reciting the transaction. It is therefore, open for the landlord to show that if the user or control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration, for creation of sub-tenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the Court is not estopped from tearing the veil of the partnership and finding out the real nature of transaction, entered into between the tenant and the alleged sub-tenant. 7] The aforesaid view seems to have been accepted by Apex Court in its decision reported in (2007) 7 S.C.C. 675 Santosh Ajit Sachdeva and others V/s Anoopi Shahani in the light of the provisions of Section 13(1)(e) of the Bombay Rent Act, with which we are concerned in this case. Para 11 of the said judgment, which is relevant for the purpose of the present case is reproduced below : “11. All other cases referred to by learned counsel were also examined and we do not feel 9 any need to refer any more of them. The theory of lifting the corporate veil has been accepted in certain circumstances which have already been referred to by t his Court in a series of decisions. However, so far as this case is concerned, as per the finding of fact recorded by the appellate court as well as by the High Court that the appellant- defendant has not been able to successfully prove that she is controlling the company, it was held by the appellate court that merely by holding a large number of shares is not sufficient; but something more is required to prove that she is actually controlling and managing the business herself. That finding of the appellate Court has been upheld by the High Court. Hence, in view of the concurrent finding of both the courts below, there is no reason for us to take a different view of the matter. Hence we do not find any merit in this appeal and accordingly the appeal stands dismissed. No order as to costs.” 10 8] In the light of the aforesaid law laid down by the Apex Court, it was open for the appellate Court to go behind the partnership deed Exh.151, to find out the real nature of the transaction. As pointed out earlier, the appellate Court, right from para 44 and onwards has considered several circumstances which were brought on record, to record finding that the transaction exhibited by Exh.151, was not real and genuine. The production of evidence to show that the rent was paid by alleged sub tenant to the tenant, would be a matter of direct evidence. However, in the absence of it, the landlord was not prohibited from bringing on record the circumstantial evidence to indicate that it was merely created to screen the nature of transaction of sub letting. The fact that the applicant no.6 has retained with him only 1/3 portion of the suit premises for the purposes of carrying original business of the applicant, has not at all been disputed. The respondent no.6 was given possession of the 2/3 of the premises containing the entire first floor and the ground floor. The applicant no.6 has failed to enter into the witness box. Taking into consideration the finding recorded by appellate Court, I do not find any perversity in the approach adopted by the appellate Court. The contention that the terms and conditions are not read in the manner in which they were recorded in the partnership deed, pertains to the realm of appreciation 11 of evidence and interpretation of the document. The appellate Court seems to have taken possible view of the matter. In view of this, I do not find any substance in the instant Civil Revision Application. The same is therefore, dismissed. 9] Shri S.V.Gangapurwala, learned counsel for applicants, at this stage, prays for grant of six months time to vacate the suit premises. Shri Shah, learned Senior counsel appearing for respondents 1 to 4/landlords fairly concedes to the request made by Shri Gangapurwala. However, he insists that the all the applicants should give an undertaking before this Court, to vacate the premises within a period of six months from today. Shri Gangapurwala, learned counsel for the applicants states that within a period of two weeks from today, such an undertaking will be filed, expressing in clear terms that all applicants (1) shall vacate the suit premises within a period of six months from today, (2) shall further hand over the vacant possession of the suit premises to the respondent nos.1 to 4 landlords and (3) shall not part with any possession of the suit premises during the period of six months, to anyone-else, than the respondent nos. 1 to 4. If such an undertaking is filed within a period of two weeks from today, the execution proceedings shall not be filed. If such an undertaking is not 12 filed on record within a period of two weeks, then respondents 1 to 4 shall be at liberty to execute the decree in question. [R.K.DESHPANDE] JUDGE umg/cra169-07