KANTABEN MANULAL Vs. MAFATLAL MOTILAL PATEL

JUDGEMENT

(1.) The applicant herein is the original landlord. He succeeded in getting decree of eviction against the respondent No.1-tenant, on the ground of subletting the rented premises. The lower appellate court reversed the decree of the trial court. Therefore, the applicant - original plaintiff is before this court by filing this Civil Revision Application under section 29(2) of the Bombay Rents, Hotel and Lodging House Rates control Act, 1947 (hereinafter referred to as the 'Rent Act' for sake of brevity), seeking to challenge the judgement and order of the Appellate Bench of Hon'ble Small Causes Court passed in Civil Appeal No. 210 of 1999 dated 14th July 2003.

(2.) The profile of facts may be noted. H.R.P. Civil Suit No. 1525 of 1991 instituted by the applicant-plaintiff before the Small Cause Court No.6, Ahmedabad, was for decree of eviction on two-fold grounds that the tenant-defendant No.1 was in arrears of rent and that he had sublet the premises. The premises was a shop bearing Municipal Census No. 245/2 situated in Raipur area, Near Bhut-ni-Ambli, Opp. Panchtad-ni-Pol, Near Pathan-ni-Masjid, Ahmedabad. It was rented to defendant No.1 at a monthly rent of Rs.40/- plus all the taxes, electricity charges, etc. payable by the tenant. It was the case of the plaintiff that the premises was given to the defendant for his personal business. It was alleged that in order to have big paghari and amount of rent, the premises was sublet in favour of defendant No.2. It was the case that the defendant was running business of selling bangles in the shop which was afterwards closed. Thereafter, the shop came to be sub-let. The trial court by judgment and decree dated 29.10.1999 negatived the ground of arrears of rent, but decreed the suit of the plaintiff on the ground of sub-letting under section 13(1)(e) of the Rent Act. Whether there was an act of sub-letting by respondent No.1 in favour of defendant No.2 is the only focal point in the case to be considered.

(3.) Learned advocate Mr. Chinmay Gandhi for the applicant assailed the judgment of the lower appellate court which set aside the decree of the trial court, by submitting that the trial court had rightly concluded that the partnership was not genuine. Emphasizing that no accounts were produced in respect of partnership business and that defendant No.2 was receiving a fixed amount of Rs.150/- which was in its real nature, according to him, a valuable consideration being received by the tenant, he further submitted in the Civil Suit No.1749 of 1990, which was filed by defendant No.1 against the defendant No.2 for dissolution of the firm, defendant No.2 had filed Written Statement (Exh.45) in which it was the defence that the suit was filed by the defendant No.1-tenant to secure amount of Paghari. He submitted on that basis that the partnership was only an arrangement made to save from the clutches of ground of subletting under the law and evade the liability of eviction. He submitted that the premises was given for a particular business to the tenant thereafter it was changed by entering into partnership deed with defendant No.2 and another business was started. It was submitted that such conduct indicated that in fact the tenant had sublet the premises. He submitted that the lower appellate court completely overhauled the evidence and came to a different conclusion in which it was not justified.