POPATLAL PREMCHAND SHETH Vs. DHANJIBHAI AND SONS

JUDGEMENT

(1.) . original defendants have invoked the revisional jurisdiction of this Court under Sec. 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (the 'Rent Act' for brief) for challenging the legality and validity of the decree of eviction passed by the learned Judge of Court No. 6 of the Small Causes Court at Ahmedabad on 1/05/1975 in H.R.P. Suit No. 3013 of 1970 as affirmed in appeal by the Appellate Bench of that Court on 1/07/1978 in Civil Appeal No. 242 of 1975.

(2.) . The facts giving rise to this revisional application may be summarised thus : The respondent herein is the landlord and the predecessor-in-title of petitioners Nos. 1/1 to 1/3 was the tenant of the premises involved in the litigation giving rise to the present revisional application. It appears that the landlord had filed one suit against the tenant for recovery of possession of the rented premises on the grounds of bona fide and reasonable personal requirement and sub-letting. That suit was filed in the Small Causes Court at Ahmedabad. It was registered as H.R.P. Suit No. 334 of 1964. It came to bs dismissed. The landlord unsuccessfully carried the matter in appeal. It was registered as Civil Appeal No. 24 of 1966, It came to be dismissed on 25/07/1969. It may be noted that the original tenant was a Surgeon. He was pursuing his medical profession in the rented premises. It is the case of the landlord that one sign-board of Saurin & Co. was found displayed on the rented premises. Thereupon the landlord caused to serve to the original tenant one notice of eviction on 5/12/1969 calling upon the tenant to vacate the suit premises on the ground of sub-letting. Its copy is at Exh. 52 on the record of the trial Court. It was served to the tenant on 10/12/1969 as transpiring from its postal acknowledgement at Exh. 53 on the record of the trial Court. The tenant caused to give his reply on 29/12/1969 at Exh. 66 on the record of the trial Court to the landlord's notice of eviction at Exh. 52 thereon. In the reply it was inter alia stated that the said Saurin and Co. was a partnership firm in which the tenant himself was a partner. Thereupon the landlord caused to serve another notice to the tenant on 21/01/1970 calling upon the tenant to give a copy of the Partnership Deed or document carrying on the partnership business in the name and style of the said Saurin and Co. Its copy is at Exh. 54 on the record of the trial Court. It appears that no reply was caused by or on behalf of the tenant to the notice at Exh. 54 on the record of the trial Court. Thereupon the landlord caused to serve its reminder on 12/02/1970. Its copy is at Exh. 55 on the record of the trial Court. It appears that no reply was caused by or on behalf of the tenant to the reminder at Exh. 55 on the record of the trial Court either. The landlord thereupon instituted on: suit against the tenant in the Court of the Small Causes Court at Ahmedabad for possession of the rented premises on the ground of sub-letting. Therein the said Saurin and Co. was also impleaded as defendant No. 2 in its capacity as the sub-tenant in the rented premises. That suit came to be registered as H.R.P. Suit No. 3013 of 1970. It appears to have been assigned to Court No. 6. The original tenant filed his written statement at Exh. 12 on the record of the trial Court and resisted ah; suit on various grounds. He inter alia contended that he did not part with any portion of the rented premises in favour of anyone including the said Saurin and Co. According to him, he was a partner in the said firm of Saurin and Co. for carrying on the business as building contractor. Defendant No. 2 also filed its written statement at Exh. 20 on the record of the trial Court and resisted the suit on various grounds. It more or less adopted the contentions raised by and on behalf of the original tenant in his written statement at Exh. 12 on the record of the trial Court. The case of sub-letting was denied by defendant No. 2 as well in its written statement. During the pendency of the suit, the original tenant breathed his last on 12/07/1971. Thereupon his heirs and legal representatives were brought on record in his place as defendants Nos. 1/ 1 to 1/3. It appears that they adopted the written statement submitted by the original tenant by the purshis at Exh. 44 on the record of the trial Court. It appears that they filed their additional written statement at Exh. 32 on the record of the suit. On the pleadings of the parties, the learned trial Judge framed the necessary issues at Exh. 50 on the record of the trial Court. After recording evidence and hearing the parties, by his judgment and decree passed on 1/05/1975 in H.R.P. Suit No. 3013 of 1970, the learned Judge of Court No. 6 of the Small Causes Court at Ahmedabad was pleased to decree the suit for possession. The aggrieved defendants carried the matter in appeal before the Appellate Bench of that Court. It came to be registered as Civil Appeal No. 242 of 1975. By its judgment and decree passed on 1/07/1978 in Civil Appeal No. 242 of 1975, the Appellate Bench of the Small Causes Court at Ahmedabad was pleased to dismiss the appeal and to affirm the decree of eviction passed by the trial Court. The original defendants have thereupon invoked the revisional jurisdiction of this Court under Sec. 29(2) of the Rent Act for questioning the correctness of the decree of eviction passed by the trial Court as affirmed in appeal as aforesaid.

(3.) . It may be mentioned that the Courts below have come to the conclusion that the partnership in the name and style of Saurin and Co. was sham, nominal and bogus. The Appellate Court has given cogent and convincing reasons for reaching its conclusion in that regard. It has relied on several circumstances on record for the purpose. According to it, the Partnership Deed at Exh. 72 on the record of the trial Court indicated that the partnership business in the name and style of Saurin and Co. commenced with effect from 1/07/1969, and yet nothing was brought on record to show that it actually commenced its business from 1/07/1969. Again, the Appellate Court has noted the circumstance that the partnership deed at Exh. 72 came to be executed on 26/12/1969 only after the notice of eviction at Exh. 52 on the record of the trial Court came to be served to aha tenant on 10/12/1969 as transpiring from the postal acknowledgement at Exh. 53 on the record of the trial Court. It is also on record that the stamp paper for execution of the partnership deed at Exh. 72 on the record of the trial Court was purchased on 20/12/1969, again after service of the notice at Exh. 52 on the record of the trial Court. The partnership was registered under the Indian Partnership Act, 1932 on 7/01/1970 as transpiring from a certified extract from the Register of Firms at Exh. 74/1 on the record of the trial Court. It transpires therefrom that the stamps paper for the purpose was purchased on 3 1/12/1969. These circumstances also weighed heavily with the trial Court in coming to the conclusion that the original tenant maneuvered to make a show of creation of some partnership business showing himself as a partner therein. Then, it has been stated by petitioner No. 1/1 herein in his oral testimony at Exh. 70 on the record of the trial Court that petitioner No. 2 herein used to maintain its accounts right from its inception. No books of accounts were produced by or on behalf of the defendants or either of them at trial. The witness at Exh. 70 on the record of the trial Court has also stated that petitioner No. 2 herein used to pay its due income-tax. No attempt was however made by or on behalf of the petitioners herein or either of them to produce the income-tax returns or the assessment orders showing payment of income-tax by and on behalf of petitioner No. 2 herein. Petitioner No. 1/1 herein has also stated in his oral testimony at Exh. 70 recorded by the trial Court that petitioner No. 2 herein opened certain bank accounts also. No particulars were however given about such bank accounts opened and/or operated by or on behalf of defendant No. 2 at trial. No attempt was made to bring on record the applications made to the concerned bank or banks for opening bank account or accounts to show that the original tenant was also shown as a partner for the purpose of opening of such bank account or accounts. No attempt was made to show that the firm in the name and style of petitioner No. 2 herein was registered as an establishment under the Bombay Shops and Establishments Act, 1948. Even if it was registered, no certificate of registration thereof was brought on record. Non-production of all these relevant materials on record prompted the Appellate Court to draw an adverse inference against the petitioners herein to the effect that the partnership in the name and style of petitioner No. 2 was a camouflage. This conclusion reached by the lower Appellate Court on appreciation of the evidence on record cannot be said to be perverse. Kum. Shah for the petitioners, even after taking me through the entire record, has failed to convince me to come to the conclusion that the conclusion reached by the Appellate Court in that regard can be branded as perverse. I have found no perversity therein. No other view is possible on reappreciation of the evidence on record. It would not be possible for me to upset that conclusion reached by the Appellate Court in exercise of my limited powers under Sec. 29(2) of the Rent Act.