Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 1288 of 1992 Shri Shyam Dattatraya Thakur ...Petitioner V/s. Smt. Gajarabai Mohanlal Rathod since deceased by her legal heirs Harish Mohanlal Rathod & ors. ...Respondents Mr. V.B.Rajure for the petitioner. Mr. S.N.Chandrachood for respondent no.1. CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : 25TH FEBRUARY, 2009 : 25TH FEBRUARY, 2009 : 25TH FEBRUARY, 2009 JUDGMENT JUDGMENT JUDGMENT . This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and decree passed by the IVth Additional District Judge, Pune dated 13th December, 1991 in Civil Appeal No. 845/1988 whereby the Appeal preferred by the Respondent-tenant was allowed and the suit for possession filed by the Petitioner-landlord came to be dismissed. The Petitioner had filed Suit for possession amongst others on the ground of bonafide and reasonable requirement for personal use and occupation of the suit premises, arrears of rent and unlawful subletting. The Trial Court decreed the suit in favour of the Petitioner-landlord on 29th July, 1988 accepting the two grounds pressed into service for eviction of the Respondent-tenant, namely, bonafide requirement and unlawful subletting. Against the said decision, the 2 Respondent-tenant carried the matter in Appeal before the District Judge who in turn allowed the Appeal filed by the tenant and dismissed the suit for possession filed by the Petitioner-landlord. This decision is subject matter of challenge in the present Writ Petition. 2. During the course of arguments Counsel for the Petitioner stated on instructions that the landlord was not pressing ground of reasonable and bonafide requirement of suit premises and would proceed in the matter only in relation to the ground of unlawful subletting. In the circumstances, I am examining the matter only in the context of ground of unlawful subletting. For the nature of order that I propose to pass, it will not be necessary to advert to all the events that led to the filing of the suit for possession. 3. Suffice it to observe that the plaintiff- landlord claims that husband of defendant no.1 was the tenant in respect of suit premises and after his demise defendant no.1 not only changed the business which was conducted in the suit premises and started using the premises for some other business, but also allowed the third party to conduct that business from the suit premises on the specious plea that the said business was conducted in 3 the name and style of Chetna Enterprises, a Partnership Firm of defendants 1 to 5 as partners thereof. 4. It is matter of record that after institution of suit, injunction order was passed against defendant no.1 not to create third party right, title or interest in the suit premises. It is the case of the plaintiff that notwithstanding the said injunction, defendant no.1 inducted defendants 2 to 5 in the garb that they are the Partners of Chetna Enterprises of which defendant no.1 was also one of the Partner. In this background, the plaintiff amended the plaint and asserted that defendant no.1 has unlawfully sublet the suit premises to defendants 2 to 5. The parties went for trial in respect of the said allegation of the plaintiff-landlord. The Trial Court amongst others, in Paragraph 11, dealt with this aspect of the matter in extenso. The Trial Court referred to relevant evidence produced on record. In the first place, the Trial Court proceeded to hold that the documents such as Partnership Deed, Certificate issued by Bank of India and Shop Act Licence were not proved by the defendants. The Trial Court then examined other evidence and considered the same in Paragraph 11 of its Judgment to conclude that defendant no.1 had inducted defendants 2 to 5 in the suit premises and thus the suit premises were unlawfully sublet to the said defendants by defendant no.1. It is 4 on that basis the Trial Court decreed the suit in favour of the Petitioner-plaintiff by Judgment and order dated 29th July, 1988. 5. In Appeal, at the instance of Respondent-tenant, however, the Appellate Court dealt with the said ground in Paragraph 10 of the impugned Judgment. In the first place, the Appellate Court proceeded to record that the Trial Court has given undue weightage to the decision of High Court instead of Supreme Court Judgment on the point directly applicable to the fact situation of the present case. It then proceeded to hold that the Partnership Deed has been proved by the defendants. On the assumption that Partnership Deed has been proved, the Appellate Court then proceeded to hold that the same would indicate that the legal possession of the suit premises has not been parted by defendant no.1. On the other hand, defendants 2 to 5 were merely Partners alongwith defendant no.1 in Chetna Enterprises; for which reason, it was not a case of unlawful subletting. 6. The real question to be considered is: whether the Appellate Court was right in disposing of the argument in such cryptic manner especially when the Trial Court had recorded as of fact that the relevant documents were not proved in evidence by the defendant; and only thereafter the Trial Court proceeded to consider the 5 other evidence to answer the point in issue. Whereas the Appellate court without recording any reason as to why it was inclined to overturn the finding so record by the Trial Court straightway jumped to the conclusion that the Partnership Deed has been proved by the defendants and on that basis proceeded to answer the point in issue with reference to the stipulations therein. However, if it were to be held, as found by the trial Court, that Partnership Deed was not proved, the stipulations therein will be of no avail. Indeed, I am not expressing any opinion as to whether the view taken by the Appellate Court in that behalf is just and proper. It would have been a different matter if the Appellate Court were to record some reasons as to why it was inclined to take the view that the Partnership Deed has been duly proved in evidence. That is not the case on hand. Indeed, Counsel for the Respondent tried to pursuade me that there is ample evidence on record which would support the conclusion noted by the Appellate Court that the Partnership Deed has been proved by the defendants. However, it is not possible for this Court to appreciate the evidence for the first time to ascertain that fact in exercise of writ jurisdiction. That however was expected from the Appellate Court who ought to have adverted to the relevant evidence which would substantiate the finding that the Partnership Deed was duly proved in evidence. Instead of reappreciating 6 the evidence for the first time by this Court, the appropriate course, in my opinion, is to relegate the parties before the Appellate Court which will have to reconsider the entire matter with regard to ground of unlawful subletting on its own merits in accordance with law. All questions in that behalf are left open to be considered by the Appellate Court. 7. Counsel for the Petitioner has relied on the decision of our High Court in the case of Bachansingh Bachansingh Bachansingh Dualsing Dualsing Dualsing Sikh & ors.v/s. Rasulbi w/o. Shaikh Ismail Sikh & ors.v/s. Rasulbi w/o. Shaikh Ismail Sikh & ors.v/s. Rasulbi w/o. Shaikh Ismail Sikilkar Sikilkar Sikilkar & ors. reported in 1987 Mah. R.C.J. 113 & ors. reported in 1987 Mah. R.C.J. 113 & ors. reported in 1987 Mah. R.C.J. 113 to contend that the Partnership Deed was a sham and bogus document. However, once again that is a matter which will have to be examined by the Appellate court since the parties are relegated before that Court for reconsideration of the issue on its own merits in accordance with law. 8. Counsel for the Respondent, on the other hand, has relied on the decision of the Apex Court in the case of Helper Helper Helper Girdharibhai v/s. Saiyed Mohmad Mirasaheb Kadri Girdharibhai v/s. Saiyed Mohmad Mirasaheb Kadri Girdharibhai v/s. Saiyed Mohmad Mirasaheb Kadri & ors. reported in AIR 1987 SC 1782 ors. reported in AIR 1987 SC 1782 ors. reported in AIR 1987 SC 1782 to contend that if it is a case of "genuine partnership agreement" and defendant no.1 is one of the Partner of the said firm, the question of unlawful subletting does not arise. There is no difficulty in accepting the proposition 7 expounded in the decision of the Apex Court referred to above. However, that decision would be of avail to the Respondent-tenant only if the Respondent-tenant was able to prove the existence of a Partnership and that too that the Partnership was a genuine one. This matter will have to be considered by the Appellate Court while considering the restored Appeal on its own merits with regard to ground of unlawful subletting. 9. My attention was also invited to another decision of the Apex Court in the case of Delhi Stationers and Delhi Stationers and Delhi Stationers and Printers Printers Printers v/s. Rajendra Kumar reported in 1990 (@) SCC v/s. Rajendra Kumar reported in 1990 (@) SCC v/s. Rajendra Kumar reported in 1990 (@) SCC 331 331 331 to contend that the ingredients such as transfer of exclusive right to enjoy property in favour of third party and that the said right created must be in lieu of payment of some compensation or rent and parting of legal possession, has to be established from the record. In absence thereof, it is not open to conclude that it is a case of unlawful subletting. Once again this is a matter which will have to be considered by the Appellate Court in remanded proceedings. All questions in that behalf as aforesaid are left open to be considered on its own merits. 10. My attention has been rightly invited by the Counsel for the Respondent in all fairness to the exposition in the case of Suresh D. Zamakade v/s. Suresh D. Zamakade v/s. Suresh D. Zamakade v/s. 8 Narayandas Narayandas Narayandas V. Shah & ors. reported in 2003 (2) Bombay V. Shah & ors. reported in 2003 (2) Bombay V. Shah & ors. reported in 2003 (2) Bombay C.R. C.R. C.R. 830 830 830 which has expounded about the role and duty of the Appellate Court in examining and answering the matter before it. Needless to observe that the Appellate Court shall bear those parameters while considering the Appeal which is restored to its file for reconsideration. 11. Accordingly, this Writ Petition partly succeeds. The impugned Judgment and decree passed by the Appellate Court is set aside and instead Civil Appeal No.845/1988 is restored to the file of the District Judge, Pune for reconsideration on its own merits with regard to ground of unlawful subletting only. All questions in that behalf are left open. 12. The parties shall appear before the Appellate Court on 16th March, 2009 on which date the Appellate Court may proceed to indicate date of hearing of the Appeal, however, shall ensure that Appeal shall be finally disposed of not later than 31st July, 2009. It will be open to the parties to request the Appellate Court to consider further material if any in addition to the material already on record. That request will have to be dealt with in accordance with law. 9 13. Office to transmit the record forthwith to the District Court Pune, if necessary by a special messenger. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]