1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR LETTERS PATENT APPEAL NO.300 OF 2010 IN WRIT PETITION NO. 5000 OF 2009 (M/s Kalinga Automobiles & Engineering Works and others ..vs.. Shri Mahasukhlal s/o Raghuji Ajmera since deceased through L.Rs. Smt. Rekhaben w/o Dayalal Kamdar and others) ------------------------------------------------------------------------------------------------------ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------- Shri S.V. Purohit, Advocate for the appellants, Shri A.M. Ghare, Advocate for L.Rs. of respondent No.1. CORAM:- D.B. BHOSALE AND P. B. VARALE, JJ. DATED :- 17 th AUGUST, 2010 1. This letters patent appeal is directed against the order dated 09-3-2010 passed in Writ Petition No. 5000/2009, by which the petition filed by the appellants-tenant has been dismissed . 2. These proceedings are arising from the application filed by the respondent-landlord, seeking permission to issue notice to terminate the tenancy of the appellants-tenant under Section 13(3)(iv)(v)(vi) & (ix) of the Central Provinces and Berar Letting of Premises and Rent Control Order, 1949 (in short “the Rent Control Order”). The said application was allowed by the Rent Controller vide order dated 20-7-2006. This order was carried in appeal being Rent Control Appeal No. 9/A- 71(2)/2006-2007 before the Additional Collector, Nagpur. The appellate 2 authority modified the order passed by the Rent Controller and allowed the respondent-landlord to terminate the tenancy of the appellants- tenant under Section 13(3)(v),(vi) & (ix) only of the Rent Control Order. These two orders were challenged in the writ petition by the appellants- tenant. 3. Learned Counsel for the appellants, at the outset, submitted that one of the partners namely, N. Anant Krishna Iyer of the appellants partnership firm had expired on 24-5-2001, and his heirs and legal representatives were not brought on record by the respondent-landlord and, therefore, the tenancy being one and indivisible, the permission cannot be used against legal heirs of the deceased partner and on this ground it renders infructuous. The same arguments were advanced by learned Counsel for the appellants in the writ petition and learned Single Judge has rightly rejected the challenge on this ground for the reasons recorded in the order. 4. We agree with the findings recorded by the learned Single Judge. In paragraph 9 of the impugned judgment. There is no dispute that the premises were let out to a partnership firm. The firm had five partners, including the deceased partner. The partnership deed has admittedly not been placed on record by the appellants and, therefore, the effect of the death of one of the partners is not before the Court. In the absence 3 of the partnership deed it is not possible to hold that the legal heirs ought to have been brought on record. The appellants have not placed the partnership deed on record even at this stage of the proceedings. It is also pertinent to note that this contention was not raised before the rent controller. Moreover, none of the persons claiming to be the heirs of the deceased partner, have come forward to claim any right whatsoever in the suit premises or in the partnership business run by the appellants till this date. In view thereof and for the reasons recorded in paragraph 9 of the impugned order, the first contention that the tenancy is one and indivisible and therefore, permission cannot be used against the legal heirs deserves to be rejected. 5. Learned Counsel for the appellants then submitted that the Courts below have not appreciated the evidence on record in proper perspective on the point whether the appellants-tenant has acquired alternative premises contemplated by Section 13(3) (iii) & (v), so also on the point of bona fide requirement of the suit premises contemplated by Section 13(3)(vi) of the Rent Control Order. We have perused the judgments and orders passed by the authorities below, so also by the learned Single Judge, and we do not find any reason to interfere with the findings of fact recorded on these points. It has come on record that electric supply of the premises was disconnected due to non-payment of bills for quite sometime. Similarly, the telephone was 4 also shifted from the suit shop in 1994-95 itself. The shop establishment license, showing the address of the suit shop, was cancelled and it was not renewed after 1993-94. The Sales Tax Returns and Income Tax Returns were also not filed from 1993-94. It was also found that the appellants were doing the business from some other premises namely, Ram Nagar house. All this materials show that suit premises were not being used for any purpose from 1994-1995. The contention of learned Counsel for the appellants that the appellants were using the suit premises as godown also deserves to be rejected outright. There is absolutely no material on record in support of this contention. Considering that there are concurrent findings of fact recorded by the Courts below and as we find there is sufficient material on record to substantiate these findings, in our opinion, we do not find any reason to interfere with the findings of fact. Hence, the appeal fails and dismissed as such. JUDGE JUDGE pma