Case: Bhairon Sahai (D) Through Lrs Vs. Bishamber Dayal (D) Through Lrs. &amp; Others

or any part of the premises without obtaining the consent in writing of the landlord.Clause (b) of the proviso to Sub-section (1) provides for the eviction of a tenant who has sub-let, assigned or otherwise parted with the possession of the premises without obtaining the consent in writing of the landlord.Section 14(4) reads as follows:(14)(4). For the purposes of Clause (b) of the proviso to Sub-section (1), any premises which have been let for being used for the purposes of business or profession shall be deemed to have been sub-let by the tenant, if the Controller is satisfied that the tenant without obtaining the consent in writing of the landlord has, after the 16th day of August, 1958, allowed any person to occupy the whole or any part of the premises ostensibly on the ground that such person is a partner of the tenant in the business or profession but really for the purpose of sub-letting such premises to that person.This Sub-section provides that if a person is allowed to occupy the premises ostensibly as a partner of the tenant but really for the purpose of sub-letting it, such an arrangement would be deemed to be sub-letting.Therefore, if the tenant has allowed any person to occupy the whole or any part of the premises, actually for the purpose of sub-letting but speciously by entering into a partnership with him, such an arrangement shall be deemed to be subletting. In other words, subletting is not permitted by camouflaging it as a partnership.The combined reading of Clause (b) of the proviso to Section 14(1) read with Section 14(4) makes it clear that before a tenant can sub-let, assign or part with the possession of any part of the premises or the whole, it must be preceded by the consent in writing from the landlord. In other words, the requirement of obtaining the consent in writing of the landlord is retained as a pre-requisite even for the purposes of Sub-section (4). What is of importance is, in either case whether a person has been inducted genuinely as a partner and therefore allowed to occupy the premises or whether the partnership is a ruse, the requirement of consent in writing as in Sub-section (1) is retained. In the present case, there is no evidence that the tenant obtained the consent in writing from the landlord before allowing the son-in-law to occupy the premises in pursuance of the Partnership deed."7. On the other hand, Respondent No. 1 submits that entering into a partnership per se does not amount to sub-letting. It is also the case of the tenant that he did not part with possession of the premises as he was running the fair price shop right from 1964 though the licence was in the name of Respondent No.2. According to the tenant, there was no need to seek consent as there was no parting with possession of even a part of the premises. Mr.S.B. Upadhyay, learned Senior Counsel appearing for the Respondents relied upon the judgment of this Court in Parvinder Singh v. Renu Gautam and Others 2004(1) R.C.R.(Rent) 596 : (2004) 4 SCC 794 wherein it was held that a tenant cannot necessarily be said to have sub-let the premises or parted with the possession thereof in favour of his partners merely because he had entered into a partnership. It was further held that a tenant may not be said to have parted with possession if he is actively associated with the partnership business and retains the user and control over the tenancy premises.8. In the present case, it is clear from the evidence on record and the judgments of the courts below that there has been parting of possession by Respondent No.1 of a portion of the premises in favour of Respondent No.2 without taking the consent of the Appellant. The Rent Controller found that from 1964 onwards, there were two shops being run in the premises. One portion of the premises was being used for a fair price shop, the licence of which was in the name of Respondent No.2. The other portion was being used as a provision store which was being run by Respondent No.1. The averments in the Eviction Petition would disclose that the Appellant alleged parting of possession by Respondent No.1 in favour of Respondent No.2 between the years 1964 and 1976. The other allegation is that Respondent No.1 entered into a partnership with Respondent No.2 in 1977. No consent was taken from the Appellant for either parting with possession of a portion of the premises or for entering into a partnership.9. Eviction can be sought by a landlord if the tenant sublets, assigns or otherwise parts with possession without his consent. We are of the opinion that the Rent Controller was right in finding that Respondent No.2 was carrying on the business as Authorised Ration Distributor in a portion of the premises from 1964 as he was the licensee. Parting with the possession of the premises without consent of the landlord was sufficient for eviction of the tenant without getting into the question of sub-letting or assignment.10. No consent was sought before the Respondents entered into partnership. This partnership was formed in 1977 after the business of a fair price shop was being carried on from 1964. The Rent Controller held that it is not necessary to decide about the genuineness of the partnership in the Eviction Petition. Even the Appellate Tribunal did not adjudicate on the partnership between the Respondents. The High Court refers to the partnership deed dated 01.01.1977 only for the purpose of holding that Respondent No.2 was permitted to use a portion of the premises but was not given exclusive possession.11. The question whether by entering into a partnership deed dated 01.01.1997, the first Respondent sublet the premises to the second Respondent does not arise for consideration in this case. Hence, the judgment in Parvinder Singhs case and other judgments cited by the learned Senior Counsel for the Respondents are not relevant.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]8. In the present case, it is clear from the evidence on record and the judgments of the courts below that there has been parting of possession by Respondent No.1 of a portion of the premises in favour of Respondent No.2 without taking the consent of the Appellant. The Rent Controller found that from 1964 onwards, there were two shops being run in the premises. One portion of the premises was being used for a fair price shop, the licence of which was in the name of Respondent No.2. The other portion was being used as a provision store which was being run by Respondent No.1. The averments in the Eviction Petition would disclose that the Appellant alleged parting of possession by Respondent No.1 in favour of Respondent No.2 between the years 1964 and 1976. The other allegation is that Respondent No.1 entered into a partnership with Respondent No.2 in 1977. No consent was taken from the Appellant for either parting with possession of a portion of the premises or for entering into a partnership.9. Eviction can be sought by a landlord if the tenant sublets, assigns or otherwise parts with possession without his consent. We are of the opinion that the Rent Controller was right in finding that Respondent No.2 was carrying on the business as Authorised Ration Distributor in a portion of the premises from 1964 as he was the licensee. Parting with the possession of the premises without consent of the landlord was sufficient for eviction of the tenant without getting into the question ofor assignment.10. No consent was sought before the Respondents entered into partnership. This partnership was formed in 1977 after the business of a fair price shop was being carried on from 1964. The Rent Controller held that it is not necessary to decide about the genuineness of the partnership in the Eviction Petition. Even the Appellate Tribunal did not adjudicate on the partnership between the Respondents. The High Court refers to the partnership deed dated 01.01.1977 only for the purpose of holding that Respondent No.2 was permitted to use a portion of the premises but was not given exclusive possession.11. The question whether by entering into a partnership deed dated 01.01.1997, the first Respondentsublet the premisesto the second Respondent does not arise for consideration in this case. Hence, the judgment in Parvinder Singhs case and other judgments cited by the learned Senior Counsel for the Respondents are not relevant.