RAMESHWAR DASS Vs. NARSING DASS

JUDGEMENT

(1.) THIS is landlords' revision petition directed against the order of the appellate authority whereby order of the Rent Controller was set aside and in consequence thereof, ejectment application filed by the petitioners was dismissed.

(2.) PETITIONERS sought ejectment of respondents from the shop situated at Railway Sadar, Jagadhri under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, (in short the Act) on the ground of non-payment of rent, sub-letting, material alternation and nuisance. On the first date of hearing, counsel for respondents 1 and 2 namely the tenant and the alleged sub-tenant appeared and tendered the rent but the same was not accepted by the landlords on the ground that the tender is also being made on behalf of sub- tenant and therefore, the tender is invalid. Ejectment petition was contested by the respondents pleading that respondent No. 1 has wrongly been shown as Ex-partner of the firm, M/s Narsingh Satpal whereas he is still continuing with the partnership. Respondents also denied that tender made was invalid or any material alteration has been made by them or they have caused nuisance to the petitioners. Rent Controller ordered ejectment on the ground of non-payment of rent and also on the ground of sub-letting. In appeal by the respondents, order of the Rent Controller was set aside and consequently, ejectment petition was dismissed. The present revision petition has been preferred against the order of the appellate Authority.

(3.) HAVING heard the learned counsel at some length, I am of the view that no case is made out for interference. In order to prove that he (Narsingh Dass) is continuing as partner in the firm M/s Narsingh Dass Satpal, Narsingh Dass proved on record-partnership deed dated 10.10.1981 which shows that he has 50 per cent share in the firm whereas his sons namely Harnam Dass and Satish Kumar have 20 per cent and 30 per cent share respectively. He has also proved on record the assessment orders. Exhibit D.13 to D.16 showing that he is partner to the extent of 50 per cent in the firm, M/s Narsingh Dass Satpal. It, thus, stands proved on record that Narsingh Dass has not parted with possession and is carrying on the business with his sons. There cannot be sub-letting unless the tenant has parted with legal possession. The mere fact that for running the business the father entered into partnership with his sons is not enough to raise an inference of sub-letting. Section 105 of the Transfer of Property Act defines a lease of an immovable property as to transfer of right to enjoy such property. Therefore to create such lease or sub-lease right to exclusive possession and enjoyment of the property should be conferred on another. In the present case, possession of the premises always remained with Narsingh Dass. He continued to be tenant, though in regard to business carried on in the shop he entered into partnership with his sons. In these circumstances, respondents are not liable to be ejected on the ground of sub-letting. As regards the second contention that tender made on the first date of hearing was not valid, suffice it to say, on the first date of hearing tender was made by the counsel who not only appeared on behalf of the firm but also on behalf of Narsingh Dass. In his statement recorded at the time the rent was tendered, he never stated that he is tendering rent solely on behalf of the firm. Otherwise too, it would have made no difference even if the rent had been tendered by respondent No. 2 as the view taken by Punjab High Court in Ram Gopal and others v. Om Parkash and others, 1963 P.L.R. 1112 and by this Court in Punjab Rajasthan Goods Carrier and others v. Onkar Mal and another, 1978(2) R.C.R. 570: 1977(1) Rent L.R. 195 that the tenant as defined under the Act could only deposit or tender rent and not a stranger was expressly over-ruled by the Supreme Court in Pushpa Devi and others v. Milkhi Ram (dead) by his LRs. 1990(1) R.C.R. 334: AIR 1990 S.C. 808. It was held "It is time for us to be explicit. Taking into account of the intention of the legislature and the purpose for which the proviso was enacted, we are of the opinion that the obligation to tender the rent under the proviso on the first hearing date does not depend upon the existence of admitted jural relationship of landlord and tenant. When an action for eviction is brought by the landlord on the ground of default, the proviso stands attracted. The benefit of the proviso could be availed of by the tenant and also by those who claim to be the tenant. The view to the contrary expressed by the High Court of Punjab and Haryana in Ram Gopal and Onkar Mal cases (1963 (65) Punjab LR 1112 and 1978(2) RCR 570: 1977(1) Rent L.R. 195) is likely to be of greater mischief to the tenants than a protection for them and is therefore over-ruled.