Summary
Sub-section (2) of s. 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, as it stood at the relevant time, barred further appeal against any decision in appeal under sub-s. (1), and instead conferred revisionary powers on the High Court in such a case.
The appellant-tenant was a partner in firm 'A' which was carrying on business of manufacturing cloth in the suit premises. That business was closed on October 4, 1960 and a new firm 'B' came into being to run the business in manufac- turing and selling neon sign tubes. On October 13, 1960 a partnership deed was executed by six persons as partners of the new firm. The document was silent as to where the busi- ness was started. On or about October 24, 1960 another partnership deed was executed by these six persons and the appellant and his father with an agreement to share only profits to the extent of 3 paise in a rupee. After the death of the appellant on February 1, 1961 a new partnership deed was executed by the remaining seven partners with the same terms and conditions.The respondent-landlord filed eviction suits against the appellant defendant alleging that the premises which were leased to the appellant for manufacturing cloth in the name of firm 'A' had been unlawfully sublet in major part to defendants 2 to 5 who were running business in partnership for manufacturing neon signs. The appellant contended that firm 'A' was not the tenant of the suit premises, that his father was the original tenant with whom he had joined in business as a partner in firm 'A', that the suit premises were to be used for business and he 290could use it for any business, that he had joined firm 'B'in partnership, that the suit premises was with him and defendants 2105 had not acquired any tenancy rights in the suit premises, and that lie had filed a civil suit to dis- solve the partnership, and to take account which was later decreed in his favour and affirmed in appeal.The trial court held that there was unlawful subletting, and decreed the suit for possession. The appellate court, Court of Small Causes, found that the appellant was only carrying on the business in partnership with defendants 2 to 5 in the name of firm 'B' in the suit premises, and held that there was no subletting, change of user, and breach of terms of tenancy. The High Court in revision on a reapprais- al of evidence took the view that the partnership was a camouflage and was never acted upon, and in fact and in reality the partnership firm was a sub-tenant of the appel- lant.In the appeal by special leave it was contended for the appellant that there was a genuine partnership which was acted upon and this finding of the appellate court could not have been reversed by the High Court in revision under s.29(2) of the Act. For the respondents it was contended that the original first partnership deed did not mention that the appellant or his father was a partner, that it was in the second partnership deed that the appellant and his father joined the firm, that there was a gap of time when there was user by the partnership firm of the premises in question when the appellant was not a member of the firm, which fact was not considered by the appellate court, and that the partnership deed was a camouflage.Allowing the appeal,HELD: 1. The High Court exceeded its jurisdiction under s. 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 in reversing the view of the appellate court. [305BC]2.1 The distinction between an appeal and revision is a real one. A right to appeal carries with it a right of re- hearing on law as well as fact, unless the statute confer- ring the right to appeal limits the re-hearing in some way.The power to hear a revision is generally given to a superi- or court to ensure that the principles of law have been correctly borne in mind, that the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind, that the decision is such which a reasonable man could have arrived at and which does not lead to a miscarriage of justice. [301H-302A; 303EF]291 2.2 The Court must guard itself against permitting in the guise of revision substitution of one view where two views are possible and the appellate court has taken a particular view. If a possible view has been taken, the High Court would be exceeding its jurisdiction to substitute its own view with that of the courts below because it considers it to be a better law. The fact that the High Court would have taken a different view is wholly irrelevant. Whether there was a partnership or not is a mixed question of law and fact, depending upon the varying circumstances in dif- ferent cases. [303FG; 304E]Hari Shankar v. Rao Girdhari Lal Chowdhiry, [1962] 1 Suppl. SCR 933; Puranchand v. Motilal, [1963] Suppl. 2 SCR 906; Krishnawati v. Hans Rai, [1974] 2 SCR 524; Phiroze Bamanji Desai v. Chandrakant M. Patel & Ors., [1974] 3 SCR 267; Bhai Chand Ratanshi v. Laxmishankar Tribhavan, [1982] 1 Rent Control Journal 242; M/s Kasturbhai Ramchand Panchal & Brothers and Others v. Firm of Mohanlal Nathubhai and Oth- ers, AIR 1969 Gujarat 110 and Punamchandra Revashankar Joshi v. Ramjibhai Maganlal. 7 Gujarat Law Reporter (1966) at page 807, referred to.In the instant case, the 'Court of Small Causes consid- ered the principles of law, evaluated the evidence and held that there was in fact and in law a partnership. Such a view was not an impossible one or a perverse one. Therefore, there was nothing that could be done about such a view within the ambit and scope of the revisional powers under s.29(2) of the Act and the High Court could not have substi- tuted its own finding for the one reached by the appellate court. [404H-305A; 304D]3. Whether the ingredients of partnership as embodied in the law of partnership were there or not in a particular case must be judged in the fight of principles applicable to partnership, that is (1) there must be an agreement entered into by all the persons concerned, (2) the agreement must be to share the profits of a business, and (3) the business must be carried ou by all or any of the persons concerned acting for all. Sharing of profits and contributing to losses are not the only elements in a partnership, existence of agency is essential. [296FG; 304G; 304E]Chimanram Motilal and Another v. Jayantilal Chhaganlal and another, AIR 1939 Bombay 410 and Mohammed Musa Sahib (dead) and Others v. N.K. Mohammed Ghouse Sahib and Another,AIR 1959 Madras 379, referred to.In the instant case, judged by these principles it could not be said 292unequivocally that there was no partnership. The partnership deeds gave the appellant the right to share the profits' and made him an agent for certain limited purposes of the firm and there was evidence that the partnership deeds were acted upon. It is true that the bank accounts were not to be operated by the appellant, that he was to be given a fixed percentage of profit irrespective of profit and that he was not to share the losses. There is nothing inherently illegal or improper in making provision of such a type. In the eyes of law such a claim is really non-sequitur or neutral prov- ing neither the existence nor non-existence of a genuine firm. The appellant was to bring in his asset being the tenancy of the premises in question for the user of the partnership. Debiting the fixed amount payable to the appel- lant in the expenses account is also not inconsistent with partnership. This is also not inconsistent with treating the rent of the firm in the context of the total expenditure of the firm. There was evidence of a suit of dissolution of the partnership where none of the partners took the plea that it was a false or a fictitious document. Though the decree in the dissolution suit was not binding in these proceedings inter se between the parties as partners, it is a piece of evidence which cannot be wholly ignored. All these factors were present before the appellate court. These were reap- praised by the High Court. [304G; 298A; 297B; 298C; 297C;301A; 298B]4. The partnership firm was carrying on business in the premises in question since October 4, 1961. If there was such a partnership firm of which the appellant was a partner as a tenant the same would not amount to subletting leading to forfeiture of the tenancy, for there cannot be a sublet- ting, unless the lessee parted with the legal possession.The mere fact that another person is allowed to use the premises while the lessee retains the legal possession is not enough to create a sublease. [294FG; 305B]Madras Bangalore Transport Co. (West) v. Inder Singh and others, [1986] 3 SCC 62; Mehta Jagjivan Vanechand v. Doshi Vanechand Harakhchand and others, (AIR 1972 Gujarat 6) and Gundalapalii Rangamannar Chetty v. Desu Rangiah and others, (AIR 1954 Madras 182), referred to.See the full content of this document
Extract
Helper Girdhiarbhai VS. Saiyed Mohmad Mirasaheb Kadri And Others.
PETITIONER: HELPER GIRDHIARBHAI Vs.RESPONDENT: SAIYED MOHMAD MIRASAHEB KADRI AND OTHERS.DATE OF JUDGMENT06/05/1987BENCH: MUKHARJI, SABYASACHI (J)BENCH: MUKHARJI, SABYASACHI (J)NATRAJAN, S. (J)CITATION: 1987 AIR 1782 1987 SCR (3) 289 1987 SCC (3) 538 JT 1987 (2) 599 1987 SCALE (1)1235CITATOR INFO : RF 1988 SC 852 (8)ACT: Bombay Rents, Hotel & Lodging House Rates Control Act, 1947: ss. 13 and 29--Tenant--Eviction of on ground of sub- letting--Demised premises used for partnership business--Lessee in legal possession-Held not enough to prove subletting. High Court--Whether could reappraise evidence in revision.Partnership Act, 1932: ss. 4 & 6---Partnership--Determi- nation of--Whether mixed question of law and fact.JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3551 of 1979.From. the Judgment and Order dated 20/21.8.1979 of the Gujarat High Court in C.R. Appln. No. 1218 of 1977.293 Dr. Shankar Ghosh, P.H. Parekh and Ayesh Misra for the Appellant.T.U. Mehta, R.C. Bhatia and P.C. Kapur for the Respondents.The Judgment of the Court was delivered bySABYASACHI MUKHARJI, J. Whether the appellant herein and his father had sublet the premises in question in or about 1960 in terms of section 13(1)(e) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called the 'Rent Act') is' the question involved in this appeal by special leave from the judgment and order of the High Court of Gujarat dated 21st of August, 1979.In order to decide this question, it is necessary to decide the scope and ambit of section 29(2) of the Rent Act.To decide this, facts must be referred to.T...
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