JAIGOPAL RATANLAL BANG Vs. BHIMASHANKAR SHIVSHANKAR PATNE

JUDGEMENT

(1.) IN both these petitions, the same order passed by the appellate court under the Bombay Rent Act has been challenged and therefore both these petitions can conveniently be disposed of by a common judgment.

(2.) IN both these petitions filed under Article 227 of the Constitution of India, what is challenged is the order dated 20.6.1990 passed by the II Additional District Judge, Solapur, in Civil Appeal No.15/1986. That appeal was filed by the petitioners and respondent Nos.2 and 3 in Writ Petition No.4092/1990 challenging the judgment and decree dated 11.9.1985 passed by the Joint Civil Judge, Junior Division, Solapur in Regular Civil Suit No.921/1980. That civil suit was filed by respondent No.1 in Writ Petition No.4092/1990, Bhimashankat Shivshankar Patne, who is petitioner in Writ Petition No.1101/1992, claiming therein that he is owner of House No.925 situate at West Mangalwar Peth, Solapur, and that Shrinivas Bankatlal Bang, who was defendant No.1, of whom the petitioners in Writ Petition No.4092/1990 are the legal representatives, was a tenant of the said house. The landlord sought a decree of eviction against the tenant on several grounds. One of the grounds was that the tenant had unlawfully sublet the premises to defendant Nos.2, 3 and 4. It was also alleged that defendant No.1 is profiteering from this unlawful subletting. The trial court recorded findings in favour of the landlord and decreed the suit, directing the defendants to vacate the suit property, i.e. House No.925, West Mangalwar Peth, Solapur. The legal heirs of defendant No.1 Bang, defendant No.2 Shirsi and defendant No.3 Ashokkumar & Co. filed an appeal before the appellate court challenging the judgment and decree passed by the trial court. The appellate court held that the premises have been sublet by the original tenant Bang but it held that the premises on the ground floor on the northern side have been sublet to defendant No.2 by the original tenant Bang before 1959 and therefore the subletting cannot be said to be unlawful and therefore the appellate court set aside the decree of the trial court in so far as it directed the tenant to vacate the northern portion on the ground floor occupied by defendant No.2. The decree passed by the trial court was confirmed by the appellate court in so far as the southern portion is concerned. The heirs of the original tenant have filed Writ Petition No.4092/1990 challenging the order of the appellate court in so far as it confirms the decree of eviction passed against them by the courts below in relation to the southern portion of the ground floor whereas Writ Petition No.1101/1992 has been filed by the landlord challenging the finding recorded by the appellate court that northern portion of the ground floor was sublet by defendant No.1 to defendant No.2 before 1959 and therefore the subletting is not unlawful.

(3.) NOW , that takes me to Writ Petition No.4092/1990 wherein the tenant has challenged the decree directing him to vacate the southern portion of the ground floor. Shri Abhyankar, learned counsel appearing for the petitioners, urged before me that perusal of the observations in paragraph 22 of the appellate court's order shows that though it was contended before the appellate court that as the sub-tenant was on the suit premises on 1.2.1973, no decree can be passed in view of the amendment in section 15 of the Act, the appellate court rejected that contention by observing that the protection extended by the amendment in section 15 of the Act is available to the licensees only. In the submission of Shri Abhyankar, the reason given by the appellate court is not correct as section 15(2) of the Act as amended by Maharashtra Act No.18/1987 extends protection to sub-tenants. Learned counsel appearing for the respondent-landlord, on the other hand, submitted that a Sub-tenancy was created by defendant No.2 who has become a deemed tenant because of the finding recorded by the appellate court that he was on the suit premises before the year 1959, created sub-tenancy in the year 1975 and therefore as the subletting was subsequent to 1.2.1973, the protection of the amended provisions of sub-section (2) of section 15 of the Act is not available in relation to the southern portion of the shop. The learned counsel submitted that even according to defendant No.2, he entered into partnership in the year 1975 and therefore in the submission of the learned counsel, the subletting was effected in the year 1975. However, in examining the contention urged by the learned counsel for the landlord, it is to be seen here that merely saying that defendant No.2, who was a deemed tenant, entered into a partnership for setting up business in the southern portion of the building on the ground floor is not enough because by merely a tenant entering into a partnership, transfer is not effected. Whether transfer has been effected or not has to be pleaded and proved by the landlord. Perusal of the deposition of witness No.1, the landlord, namely, Bhimashankar, shows that he has stated that defendant No.2 has created partnership and that the partnership is nominal. The clear import of this statement is that the partnership that is created by defendant No 2 is nominal and, in fact, it is he who is carrying on the business though in the name of the partnership firm. Perusal of the deposition of the witness shows that he has not anywhere claimed that defendant No.2 is not doing business in the southern portion of the premises. Learned counsel for the petitioners invited my attention to a suggestion made to defendant No.2 in cross-examination that he is not in a position to run the business and therefore he has let out the southern portion to the sub-tenant. In the submission of the learned counsel, this suggestion made to defendant No.2 shows that it was not defendant No.2 who was carrying on business in the southern portion because he is not in a position to carry on the business. However, it is to be noted here that the witness of the plaintiff himself has stated that in the northern side of the shop on the ground floor, defendant No.2 is carrying on the business. If it is the statement of the plaintiff himself that defendant No.2 is carrying on business in the northern side of the shop, then, in my opinion, the suggestion made to him in his cross-examination loses its significance. It is further to be seen here that the witness examined by the plaintiff, by name Vijay, has stated that defendant No.3 firm is carrying on business on the southern side shop and that in that partnership firm, defendant No.2 is a partner. Thus, it is established on record that defendant No.3 is a partnership firm which is carrying on business in the shop on the southern side of the building. Therefore, it was for the plaintiff to assert that defendant No.2 is merely a sleeping partner in the firm and that he has no interest in the business of the firm. In the submission of the learned counsel for the landlord, the burden to show that defendant No.2 was a full-fledged partner of the firm was on defendant No.2. However, in my opinion, though the composition and business of the firm would be a thing in the special knowledge of defendant No.2, the burden to establish that would shift to the plaintiff once the plaintiff makes a statement that defendant No.2 is merely a sleeping partner in the firm and he is not interested in the business of the firm. However, as stated above, nowhere in the deposition of witness No.1, who is the plaintiff himself, has he asserted that defendant No.2 has no interest in the partnership firm which is carrying on business on the southern side of the building. On the contrary, the statement made by the witness suggests that it is defendant No.2 who is carrying on business there and that the partnership is nominal. It is pertinent to note here that the appellate court itself has held that the entire premises were sublet by defendant No.1 to defendant No.2 before 1959 and I have observed above that even if 1959 is not taken to be the year of subletting and 1966 is taken as the year of subletting, even then the subletting in favour of defendant No.2 cannot be said to be unlawful and if defendant No.2 has entered into partnership in 1975 for carrying on business on the southern portion of the building, then, in my opinion, it will not amount to subletting. The appellate court itself has referred to two judgments of the Supreme Court, one in the case of Helper Girdharbhai v. Saiyed Mohmad AIR 1987 Supreme Court 1782 and the other in the case of M/s Madras Bangalore Transport Co. (West) v. Inder Singh, AIR 1986 Supreme Court 1564, where the Supreme Court has held that a tenant entering into a partnership business does not amount to subletting. Therefore, in my opinion, defendant No.2 entering into the partnership in the year 1975 would not amount to subletting by defendant No.2 and therefore the appellate court was not justified in confirming the finding recorded by the trial court in relation to the southern portion of the building.