AJIT PARSHAD Vs. GIAN SINGH

JUDGEMENT

(1.) This is a tenant's petition under Article 227 of the Constitution against an order of the District Judge, Karnal, acting as appellate authority under the East Punjab Urban Rent Restriction Act directing his eviction from the shop in dispute. Before 1947 the shop belonged to one Shamshad Ali who has since the partition of the country migrated to Pakistan. Mani Ram was a tenant under him since 1942. After 1947 the shop vested in the Custodian and Mani Ram became a tenant under the Custodian. Mani Ram entered into partnership with Ajit Parshad in December, 1952 and continued his business in this very shop. Some time in January, 1954 the Custodian transferred the property to Gian Singh who applied under section 13 of the Act for the eviction of Mani Ram and Ajit Parshad on the grounds that Mani Ram had after the Act came into force let the premises to Ajit Parshad, that the tenant had not paid rent and that the landlord required the premises for his own use. The Rent Controller came to the conclusion that the tenant was not liable to be evicted for non-payment of rent and also that the landlord had failed to prove that he required the shop for his own use. He, however, held that Mani Ram had sublet the premises to the partnership firm and ordered the ejectment of the tenant under section 13(ii) (a) of the Act. Ajit Prashad appealed to the appellate authority (District Judge, Karnal) under section 15 of the Act. The only point argued before him was whether in these circumstances there was subletting of the shop to Ajit Parshad. The appellate authority upheld the decision of the Rent Controller. Ajit Parshad has come to this Court under Article 227 of the Constitution.

(2.) The decision of the appellate authority is obviously contrary to the view taken repeatedly by this Court and this must be taken to be an error apparent on the face of the decision. Admittedly, Mani Ram continued to remain in possession of the shop. It is argued that he remained in possession only as a partner of the firm and not in his individual capacity. To me there does not appear to be any distinction between these two capacities. The partners are collectively called a firm and where a firm is in possession of any premises all its partners are in possession on behalf of each other. Thus it cannot be said that Mani Ram ever lost possession of the shop in dispute. Moreover, there is no proof on this record that Mani Ram ever transferred his rights under the lease to the firm as such nor is there evidence that he sublet the shop to the firm. The only evidence is that the partnership firm is carrying on its business in this shop and Mani Ram is one of its partners. The mere fact that Mani Ram has allowed his partner to use the premises in furtherance of the partnership business will not amount to subletting of the premises nor does the fact that the rent was paid during 1954 by the said firm and not by Mani Ram alone will make any difference. I am of the opinion that in such a case there is no subletting of the shop as contemplated under section 13(2) (ii) (a) of the Act. It is not necessary to discuss the matter in great detail as this decision is in accordance with the judgments given by Weston C.J. in Nandu Ram v. Ram Ji Lal, 1952 AIR(P&H) 403 by Bhandari C.J. in Shrimati Devi v. Ram Kishan, 1954 56 PunLR 180 and by Falshaw J. in Amar Nath v. Savatri Devi,1955 57 PunLR 267.

(3.) It was then argued by the learned counsel for the landlord that the appellate authority has given no decision on the question whether the landlord required the shop for his own use and therefore the case may be remanded to him for decision or I should go into the evidence and decide the matter. The landlord's case is that he is the owner of a factory in the urban area and he wants to start a new business of ahrat in this shop. Section 13(3) (ii) (b), however, provides that a tenant cannot be evicted from a non-residential building if the landlord is occupying in the urban area concerned for the purpose of his business any other building. It was doubtful if it is open to the landlord to circumvent this provision of law by merely asserting that he wants to start a new business. It is, however, not necessary to deal with this point in detail as the Rent Controller has decided this matter against the landlord. The appellate authority has distinctly stated that no other point excepting that of subletting was argued before him and therefore the finding of the Rent Controller was not challenged before the appellate authority. It is too late now to do so in the present petition, and I see no reason whatsoever for permitting the landlord to raise this point in the present proceedings.