Civil Revision No.823 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.823 of 2011(O & M) Date of Decision:17.08.2011 Jagdish Gupta ....petitioner Versus Sham Sunder Mehta & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Arun Jain, Senior Advocate with Mr.Ankur Goyal, Advocate for the petitioner Mr.Som Nath Saini, Advocate for the respondents *** RAKESH KUMAR GARG, J.(ORAL): This is tenant's revision petition challenging the impugned order dated 24.05.2008 passed by Rent Controller, Rajpura, ordering his ejectment from the demised premises and the order dated 07.10.2010 of the Appellate Authority, Patiala, dismissing his appeal against the order of Rent Controller. Shorn of unnecessary details, it is suffice to mention that ejectment of the petitioner was ordered from the demised premises by the authorities below on the ground of sub-letting. Respondent No.1, in the ejectment petition has pleaded that the petitioner-tenant had sub-let the demised shop without the consent of the respondent-landlord in favour of respondent Nos.2 and 3 who were running the business in the premises in question in the name and style of Civil Revision No.823 of 2011 2 M/s Jaggi Trading Corporation, whereas petitioner was himself doing the business of Gupta Wire Products in village Kharajpur and had parted with possession of the demised premises in favour of respondent Nos.2 and 3 and was liable to be ejected. A perusal of the pleadings as averred on behalf of the petitioner would show that the petitioner had taken a specific stand that petitioner had not parted with the possession of the demised premises as he was working in the demised shop under the name and style of M/s Jaggi Trading Corporation, of which he was a partner and also running his office in the premises in dispute under the name and style of Gupta Wire Products and therefore, there was no sub-letting as alleged. It is useful to refer to the observations of the Appellate Authority, Patiala which read thus: From the rival arguments, it is made out that subletting has been made the ground by the landlord for the eviction of the appellant/tenant from the premises in dispute. The petitioner claimed that the respondent No. 1 Jagdish Gupta has parted with the possession of the shop in dispute and was running his business in village Kharazpur and he has no control over the business being run under the name and style of M/s Jaggi Trading Corporation, which is running in the shop in dispute. On the other hand the appellant has claimed that tenant Jagdish Gupta was a partner of M/s Jaggi Trading Corporation who was doing the business since 1.4.98 and also that M/s Gupta Wire Products of which he was the sole proprietor was having its office in the shop in dispute. He has also Civil Revision No.823 of 2011 3 claimed that the respondent/appellant No. 2 Satish Gupta who was the partner of M/s Jaggi Trading Corporation was the real brother of Jagdish Gupta and they being joint family there was no prohibition that the near kith and kin may not join the family business. At the outset it is clear that the respondent/appellant No. 1 initially took the shop in dispute on rent in the year 1976 vide rent note Ex. AW4/B. The respondent No. 1 is ostensibly guilty of violating terms and conditions of the rent note. As per the rent note the tenant shall not include any partner more than 50%. The partnership deed produced by Jagdish Gupta Ex. RZ clearly showed that Jagdish Gupta himself was only having 15% share whereas the respondent No. 2 Satish Gupta who is alleged to be tenant with the respondent No. 1 Jagdish Gupta is having 70% share. The share of the alleged subletee is also 70% which is more than 50%, which was an embargo put on the powers of the tenant by creating a partnership concern. Furthermore it is to be determined as to whether Jagdish Gupta the respondent No. 1 who was having merely 15% share was having any control and possession over the business being run in the premises in question. The conduct of the respondent No. 1 and the documents on record clearly showed that he was not aware of any Civil Revision No.823 of 2011 4 business dealings made by the firm M/s Jaggi Trading Corporation, which is alleged to be operating in the premises in question. Jagdish Gupta himself has admitted in his cross examination that he is not aware of the length and breadth of the shop in dispute. He further admitted that he can not tell from which firm goods lying in the shop in dispute were purchased. He has further admitted that M/s Gupta Wire Products of which he was the sole proprietor is running the business in village Kharazpur. All this showed that he was not aware of any dealings made by the firm M/s Jaggi Trading Corporation and the same was being run by the respondent No. 2. So much so, his no control over the premises in dispute is also depicted from the report of the Local Commissioner who has proved that at the moment when the local commissioner visited the spot it was Vikas Gupta s/o Satish Gupta who was running the business in the shop in dispute. This showed that it was Satish Gupta the respondent No. 2 who was in active control of the business of M/s Jaggi Trading Corporation and the respondent/appellant No. 1 who has having his sole proprietorship concern in village Kharazpur has parted with the possession of the same. Furthermore, much stress was laid by the appellant that M/s Jaggi Trading Corporation came into existence in the year 1988 and when M/s Jaggi Civil Revision No.823 of 2011 5 Trading Corporation came into existence Jagdish Gupta and Satish Gupta were partners. He may tell lies but the documents don't. Ex.A1 clearly showed that M/s Jaggi Trading Corporation came into existence in the year 1992 and in that year there were 3 partners i.e. Satish Gupta, Parveen Kumar and Shanti Devi, Jagdish Gupta was having no concern with this firm. This firm continued its business but kept on changing its constitution. This fact is evident from the statement of AW1 Kuldip Singh Tax. Asstt. who has proved the documents Ex.A1 and Ex.A2. Ex.A1 and Ex.A2 clearly reflected that M/s Jaggi Trading Corporation had 3 partners i.e. Satish Gupta, Parveen Gupta and Shanti Devi and the respondent/appellant No. 1 has nothing to do with the same. It also showed that other firm was dissolved on 31.3.05 was made sole proprietorship firm which was exclusively managed by Satish Gupta. This fact was admitted by none else but by Satish Gupta in his cross examination. Returns filed with the Income Tax Department also showed that the same were exclusively filed by Satish Gupta and nowhere Jagdish Gupta has come into picture. The other returns for the years 1996-97 and 1997-98 also showed Satish Gupta to be working as sole proprietor and managing the affairs of M/s Jaggi Trading Corporation and nowhere Jagdish Gupta was involved. This itself showed that at all point of Civil Revision No.823 of 2011 6 time from the year 1992 till the year 1998 the possession of the firm of M/s Jaggi Trading Corporation was with none else but with Satish Gupta and it was only in the year 1998-99 M/s Jaggi Trading Corporation was made partnership concern and the same is evident from Ex.A6. The creation of partnership firm in the year 1998-99 reflected the name Jagdish Gupta in Ex.A6 (return filed on 30.8.99). This itself showed that this firm was created only to defeat the provisions of the Rent Act because the present petition was filed on 17.7.98. This itself showed that the partnership was created only to rule out subletting. Otherwise in the earlier years, M/s Jaggi Trading Corporation was having no concern with the original tenant Jagdish Gupta. No doubt much stress was laid by the learned counsel for the appellant that earlier M/s Jaggi Trading Corporation was having its business at some other place and it was only in the year 1998 that the business was commenced by M/s Jaggi Trading Corporation on the creation of new partnership in which Jagdish Gupta was active partner. This fact was also belied by the documents on record. It is an admitted fact that M/s Jaggi Trading Corporation in which Jagdish Gupta is shown to be the partner came into existence on 1.4.1998, because earlier the firm running in name of M/s Jaggi Trading Corporation, Jagdish gupta was not the partner. The appellant has placed Civil Revision No.823 of 2011 7 reliance on the documents of some old litigation i.e Ex.R16 to Ex.R27. Perusal of the documents showed that in that case compromise was effected between the parties and M/s Jaggi Trading Corporation has compromised with the defendant and has withdrawn that suit. In that suit M/s Jaggi Trading Corporation has agreed to hand over the vacant possession to the defendant. No benefit can be derived by the appellant that M/s Jaggi Trading Corporation was working somewhere else and not in the shop in dispute before 1996 because they have failed to clarify in which premises M/s Jaggi Trading Corporation was doing its business between 1996 to 01.04.1998 i.e.after its vacation from that premises(Premises mentioned in the litigation Ex.R16 to Ex.P27) because it is only after 1.4.98 that M/s Jaggi Trading Corporation has started to do business in the premises in dispute. Furthermore it is an admitted fact that the respondent Nos. 1 and 2 are real brothers and it was on account of their clandestine arrangement that the subletting can not be proved easily by the landlord. It is only the documents which were deliberately prepared by the respondent No. 1 by showing that in the year 1998 M/s Jaggi Trading Corporation was formed, in which Jagdish Gupta was a partner, although this M/s Jaggi Trading Corporation was existing much prior to the year 1998 and the same is revealed from Ex.A1 to Civil Revision No.823 of 2011 8 Ex.A6. On account of the plethora of the judgments put forth by the landlord, certainly it is held that from the conduct of the parties the subletting can be determined. In the present case Jagdish Gupta is not aware of the nature of business being carried out in the premises in dispute. This was only on account of the fact that only facade of Jagdish Gupta being an active partners in M/s Jaggi Trading Corporation was created although it was actually run by Satish Gupta. It is an admitted fact that Jagdish Gupta was running separate firm M/s Gupta Wire Products at village Kharazpur. This also showed that he was running his own business and it was Satish Kumar who was doing independent business under the name and style of M/s Jaggi Trading Corporation. Moreover the appellant has failed to show that joint family business was being run in the premises in dispute. Certainly M/s Jaggi Trading Corporation is partnership firm and the same is clearly distinguishable from the joint family business, which for legal purposes was having two different entities. Thus the appellant has failed to show that the premises in dispute were not sublet by him. The appellant has also failed to show that trial court has wrongly taken into consideration the fact that M/s Jaggi Trading Corporation has come into existence only in the year 1998 of which Jagdish Gupta was partner. Infact, M/s Jaggi Trading Corporation was Civil Revision No.823 of 2011 9 in existence much before the year 1998. It was only after filing of the present petition that the partnership firm of which Jagdish Gupta was partner, was created and that too in violation of the terms and conditions of the Rent Act. I am of the opinion that the disputed premises was sublet by one person to the other and the possession was parted by Jagdish Gupta in favour of respondent No. 2. Thus there was certainly subletting. As regard the substantial passing of consideration is concerned, the same is difficult to prove as the respondent Nos. 1 and 2 are real brothers and possibly the same would have been passed in a clandestine manner in order to defeat the provisions of the Rent Act. Before this Court, Mr.Arun Jain, Senior Advocate appearing on behalf of the petitioner has vehemently argued that from the evidence on record, it has been clearly established that at no point of time, petitioner had parted with possession of the demised premises as admittedly he was partner in Gupta Wire Products since letting out the demised premises on 04.01.1976. Petitioner was working under the name and style of Sham Electric Store i.e.a partnership firm consisting of petitioner and his brother Santosh and thereafter the firm M/s Gupta Wire Products came into existence on 19.09.1981 which consisted of petitioner, his mother and brother as partners and the said firm always ran its office from the premises in dispute and moreover the partners of M/s Jaggi Trading Corporation were noneelse but the near relations i.e.mother and brothers of petitioner who were working along with the petitioner and therefore it cannot be held that the petitioner had parted with exclusive possession of Civil Revision No.823 of 2011 10 the whole or part of the tenanted premises and thus the impugned orders were liable to be set aside. On the other hand, Mr.Som Nath Saini, learned counsel appearing on behalf of the respondents has vehemently argued that the authorities below on appreciation of evidence have recorded a concurrent finding that petitioner has parted with the exclusive possession of the demised shop and therefore sub-letting has been proved and petitioner was liable to be evicted and no fault can be found with the findings of the authorities below and the instant revision petition was liable to be dismissed. I have heard learned counsel for the parties and perused the impugned orders/judgements. From the rival arguments, it is made out that subletting has been made the ground by the landlord for the eviction of the petitioner/tenant from the premises in dispute. The respondent-landlord claimed that the petitioner Jagdish Gupta has parted with the possession of the shop in dispute and was running his business in village Kharazpur and he has no control over the business being run under the name and style of M/s Jaggi Trading Corporation, which is running in the shop in dispute. On the other hand the petitioner has claimed that tenant Jagdish Gupta was a partner of M/s Jaggi Trading Corporation who was doing the business since 1.4.98 and also that M/s Gupta Wire Products of which he was the sole proprietor was having its office in the shop in dispute. He has also claimed that the respondent No. 2 Satish Gupta who was the partner of M/s Jaggi Trading Corporation was the real brother of Jagdish Gupta and they being joint family there was no prohibition that the near kith and kin may not join the family business. It may be relevant to mention, at the outset that in the rent note Ex.AW4/B, there was an express condition to the effect that the Civil Revision No.823 of 2011 11 tenant could not include any partner having more than 50% share. The partnership deed produced by the petitioner Ex.R-2 clearly shows that petitioner himself was having only 15% share, whereas petitioner No.2 Satish Gupta who is alleged to be partner with the petitioner is having 70% share. Thus the alleged sub-lettee was having share to the extent of 70% which was in violation of the condition of 50% as mentioned above. While rejecting the claim of the petitioner, the courts below on appreciation of evidence have also found that in fact the petitioner was not having any control over the business being run in the premises in question. Even the petitioner was not aware of any business dealings made by the firm M/s Jaggi Trading Corporation which is alleged to be operating in the premises in question. Not only this, the petitioner himself has admitted in his cross- examination that he is not aware of the length and breadth of the shop in dispute. Running of business under the sole proprietorship of petitioner of the firm M/s Gupta Wire Products in Village Kharajpur is also admitted. All this evidence coupled with the report of Local Commissioner according to whom Vikas Gupta s/o Satish Gupta was running the business in the shop in dispute at the time of local inspection clearly demonstrates that it is respondent No.2, who is in exclusive possession of the premises in dispute and petitioner has parted with the possession of the same. Not only this, a perusal of the partnership deed of M/s Jaggi Trading Corporation depicts that the same consists of Satish Gupta, Parveen Gupta and Shanti Devi and the petitioner had no concern with this firm. The evidence also showed that the other firm M/s Gupta Wire Products was dissolved on 31.03.2005 and was made sole proprietorship firm which was exclusively managed by Jagdish Gupta. Not only this, even the petitioner has taken a specific stand that he is doing the business in the demised premise being partner of M/s Jaggi Trading Corporation. However the partnership deed dated 01.04.1998 clearly belies the aforesaid pleadings of the petitioner. Civil Revision No.823 of 2011 12 The aforesaid partnership deed does not show petitioner as partner of M/s Jaggi Trading Corporation. It is well settled that the sub-letting cannot be proved easily by the landlord as the same being a secret affair between lessee and sub-lessee and it is only the circumstantial evidence and the conduct of the parties from which sub-letting can be determined. Furthermore, it is an admitted fact that the petitioner and respondent No.2 are real brothers and it was on account of their clandestine arrangement that the sub-letting cannot be proved easily be direct evidence. Not only this, there is not an iota of evidence on the basis of which it can be held that petitioner being proprietor/partner of M/s Gupta Wire Products is running his office from the demised premises as pleaded by him. Even before this court, learned senior counsel appearing of the petitioner was unable to point out any evidence to support his aforesaid plea. It may be relevant to mention, at this stage that in support of his case, learned counsel appearing on behalf of the petitioner has cited M/s Madras Bangalore Transport Co.vs.Inder Singh and ors.1986(2) RCR 377, to contend that M/s Gupta Wire Products was always in possession of the premises through M/s Jaggi Trading Corporation, whose partners were also partners in Gupta Wire Products, and therefore, there was no sub-letting assignment or parting with possession of the premises as in reality both the firms were relating to each other. The judgement cited by the learned counsel for the petitioner is not applicable in the facts and circumstances of the present case. In the aforesaid case, the original firms M/s Madras Bangalore Transport Co. continued to be in possession of the premises in dispute and never parted possession in favour of Caravan Goods Carrier Private Limited, whereas in the present case, the findings have been recorded that M/s Gupta Wire Products has parted with possession and petitioner was not a partner in M/s Jaggi Trading Corporation. Civil Revision No.823 of 2011 13 In view of the aforesaid discussion, the findings recorded by the courts below cannot be found faulted with. No merit. Dismissed. (RAKESH KUMAR GARG) JUDGE 17.08.2011 neenu