UNITED WESTERN BANK LTD Vs. NIRMALA RANDIVE

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioners challenge the order dated 28.11.1983 passed by the District Judge, Pune in Civil Appeal No.628. That Appeal was filed by the petitioners, challenging the judgment and order dated 19.4.1982 passed by the Judge, Small Causes Court, Pune in Civil Suit No.2572/1975. That Civil Suit was also filed by the petitioners, seeking therein that the petitioner-plaintiff is landlord of Shop No.6, situated on the ground floor of the United Western Bank Building Budhwar Peth, Laxmi Road, Pune and that Shri Potanna Pappayya Battin of whom the respondent Nos.1A and 1B are the legal representatives, was the tenant. The landlord sought a decree of eviction against the tenant on the ground that the defendant No.1 Potanna had sublet the suit premises unlawfully to the defendant No.2- Shri Durgaprasad. It was the case of the defendants that the suit premises have not been sublet. However, since 1964, the defendant No.2 has been appointed as a partner of the partnership firm by name 'M/s. Unique Stores'. The Trial Court on the basis of the evidence on the record, recorded a finding that the defendant No.1 has not unlawfully sublet the premises, but has entered in to partnership for carrying on the business, in the suit premises with the defendant No.2. With this finding the Trial Court dismissed the suit. In the Appeal filed by the landlord, the Appellate Court confirmed the findings recorded by the Trial Court and dismissed the Appeal. Thus in the present petition, it is the concurrent findings recorded by the courts below, which are under challenge.

(2.) WHEN the petition was called for final hearing none appeared for the petitioner. With the help of the learned counsel for the respondents, I have gone through the records of the case. In considering the case made out by the defendants that the transaction between the defendants was not a transaction of sub-lease but the tenant entered into the partnership with the defendant No.2 for carrying on the business in the suit shop. The Trial Court observed that the partnership firm M/s. Unique Stores is registered on 20th February 1965 and the name of the defendant No.2 is joined as partner of the firm. The Trial Court accepted the case of the defendants that the defendant No.2 was carrying on the business in the suit shop as partner of the firm since 1964. The Appellate Court while confirming the findings recorded by the Trial Court has referred to the partnership deed, accepted in the month of December 1973, whereby the partnership was renewed and observed that by that deed no interest in favour of the defendant No.2 was created in the suit premises and therefore, held that it is not a transaction between the defendants but was an act of sub-lease. I do not see any manifest error of law in the concurrent findings of facts recorded by both the courts below. It is further to be seen here that both the courts below have found that the defendant No.2 was doing business in the suit premises since 1964 in as much as he has been taken in as a partner in the firm, which was registered in the year 1965. It is also clear from the averments made in paragraph -3 of the plaint, that it was the case of the plaintiff that in 1963-64 the defendant was introduced as sub-lessee, unlawfully by the defendant No.1. By the Maharashtra Act No.18 of 1987, sub-section (2) of Section 15 of the Act has been amended, whereby the unlawful tenancies created before 1.2.1973 have been protected. Therefore, by reason of this amendment to sub-section (2) of section 15 of the Act, now even if the case of the plaintiff is accepted, a decree of eviction cannot be passed on the ground of subletting, which have been according to the plaintiff had taken place before 1.2.1973.