DHARAM CHAND Vs. CHANDER KALA

JUDGEMENT

(1.) THE landlords sought ejectment of Gian Chand tenant on the pleas that he had sub-let the shop to Sarvshri Dharam Chand Manohar Lal, sons of Chuni Lal and Malawa Ram son of Bisanda Ram, who were carrying on business in the name and style of Manohar Stores. In case M/s Manohar Stores is proved to be partnership firm, since the tenancy was only given to Gian Chand ejectment is sought on the ground of sub-letting to Dharam Chand, Manohar Lal sons of Chuni Lal and Malawa Ram son of Bisanda Ram and for non-payment of rent. In highlighting the facts of sub-letting, it was pleaded that Gian Chand was the tenant whereas the sub-tenants were carrying on business in the name and style of Manohar Stores. In the alternative it was pleaded that if it is proved that Manohar Stores was proved to be the tenants, yet order of ejectment the ground of sub-letting was liable to be passed because M/r Manohar Stores partnership firm stood dissolved and, therefore, the occupation of the rest while partners was by the way of sub-letting. In the written statement it was pleaded that M/r Manohar Stores had taken the premises on rent on 1.5.1961 through Manohar Lal as partner of the firm. It was further pleaded that Gian Chand may have executed a rent note later on as partner of the aforesaid firm and he never executed any rent note in his individual/personal capacity, and that is why the rent note alleged to have been executed by Gian Chand was being withheld by the landlords. It was a definite plea that firm M/s Manohar Stores was the tenant form the very beginning and continued to be the tenant and its erstwhile partners along with the wife or children of some of them continued to be partners of the new firm which was being carried on at the time of filing of the ejectment petition. The arrears of rent were tendered by the firm which tender was accepted by the landlords.

(2.) BOTH the Courts below ordered ejectment on both the grounds after recording a finding that Gian Chand was the tenant in his individual capacity on the basis of rent note dated 8.6.1964 for the proof of which secondary evidence was led as the original was not traceable and since the tender was made by the firm it was held to be invalid. This is revision by the partners of M/s Manohar Stores who are alleged to be the sub-tenants.

(3.) IN spite of the plea of the tenants that the firm took the premises on tenancy on 1.5.1961, no plea was taken by the landlords that the firm gave up the tenancy. In the absence of plea of the tenancy dated 1.5.1961 coming to an end, that tenancy will continue till determined either in accordance will be law or by act of the parties. While the tenancy dated 1.5.1961 continued in favour of the partners of the firm, even if it is assumed that another rent note dated 8.6.1964 was written by Gian Chand who was one of the partners on 1.5.1961 and continued to be the partner on 8.6.1964, the original tenancy dated 1.5.1961 would remain in force. Merely by execution of a rent note by Gian Chand one of the partners even if it is his own personal capacity, would not bring to an end the tenancy dated 1.5.1961. The tenancy dated 1.5.1961 could be brought to an end by all the partners of the firm and not by oen of them. Unfortunately, the rent note which is alleged to have been executed by Gian Chand had not been placed on the record and from secondary evidence, effort was made to prove that the rent note was not executed on behalf of the firm but by Gian Chand in his personal capacity as partner of M/s Manohar Stores. Assuming that it is so on the basis of the original rent note dated 1.5.1961 the then partners or any of them was entitled to continue in occupation of the premises and this would not amount to subletting. Even if one of the then partners joins others with him in the business, it does not amount to subletting. It has been ruled by the Supreme Court in Murli Dhar v. Chuni Lal and others, 1969 RCR 563: 1970 R.C.J. 922, that even if one of the partners of the original firm continues to be in occupation of the shop as a partner of the new firm along with new partners, there would be no subletting. The relevant observations are as follows:-