SH JANAK RAJ AHUJA Vs. SH NAVNEET SEHGAL

JUDGEMENT

(1.) THIS is tenant's revision directed against the order of the Rent Controller as affirmed by the appellate Authority.

(2.) NAVNEET Sehgal (respondent No. 1 herein) filed an ejectment application against his tenant, namely, J. R. Ahuja (petitioner herein) on the ground that the premises in dispute, i. e. SCF No. 14, Sector 8-B, Chandigarh, were let out to him and he had sub-let the same to R. N. Sethi (respondent No. 2 herein ). Petitioner contested the ejectment application by saying that he has not sub-let the premises to respondent No. 2, but he is his employee at a salary of Rs. 1000.00 per month. However, respondent No. 2 in his written statement stated that he is in possession of the premises as a partner on the basis of partnership-deed dated 1. 8. 1984. Rent Controller on the basis of pleadings and the evidence brought on record found that petitioner is running the business in the name and style of M/s Universal Sports Company in another premises, i. e. SCo No. 52-54, Sector 17-C, Chandigarh and has patted with possession of the premises in dispute to respondent No. 2. Partnershipdeed set up by respondent No. 2 was found to be a camouflage. Rent Controller also placed reliance on the report of the Local Commissioner, Sh. Ravinder Arora, Advocate, who in his report dated 15. 1. 1987 had observed that respondent No. 2 was present in the disputed premises and he had told him that he is also in possession of first floor of S. C. F. Petitioner in order to show that he had been paying salary to respondent No. 2 tried to prove certain entries of accounts-books showing payment of salary to respondent No. 2, but since the income-tax record did not support the entries the same were not believed. Rent Controller in para 16 of the judgment observed "though the plea of partnership has been alleged by respondent No. 2, but respondent No. 1 has alleged respondent No. 2 as his employee but all these facts about partnership are not proved from the income tax department record and had respondent No. 2 been partner he was supposed to know profit and loss shown before the income tax department. " Petitioner also failed to produce the record regarding payment of salary to his employee. Rent Controller thus, ordered ejectment of the petitioner on finding that respondent No. 2 has neither been proved to be his employee, nor the partner and the partnership-deed was only a paper transaction and was not to be acted upon. Having felt aggrieved of the order of the Rent Controller, petitioner filed an appeal before the appellate Authority. Appellate Authority vide a detailed judgment dated 22. 8. 1996 dismissed the appeal. Hence, the present revision petition.

(3.) THERE is no dispute that so long as the tenant continues to be partner in the partnership, there is no sub-letting because being a partner in the business such tenant would be deemed to be in possession of the demised premises. However, in the present case, firstly, it is not the case of the petitioner in the written statement that respondent No. 2 is his partner but his definite case is that he is his employee; and secondly, both the Courts below have held that partnership alleged is not a genuine one and is merely a camouflage to conceal real transaction of sub-letting. For genuine partnership business real intention of the parties thereto has to be found, conduct of the parties in this regard to be considered. In the instant case, tenant has produced only partnership-deed and no other document in the shape of account-books etc. as well as records of income-tax and sales-tax to show genuineness of the partnership-deed. He has also failed to produce the record to show that in a year, profits had not exceeded Rs. 76,000.00 or Rs. 1,50,000.00 and so, the profit was not shared. The statement of tenant-petitioner, while appearing as RW-2, as has been made available to me by the counsel for petitioner, shows that the tenant in his cross-examination has admitted to have handed over the premises to respondent No. 2 in the month of June, 1984. In his cross-examination, he also stated that he does not remember as to when he has visited the shop last time. He admitted to be correct that all the cash-memos were issued from the shop in Sector 17-C, Chandigarh, even for the sales of goods effected in Sector 8, Chandigarh. He further admitted that in the cash-memos, there is no mention of Sector 8 shop. He further admitted that he did not furnish any information to the Labour Department that respondent No. 2 is his employee. Tenant-petitioner also failed to produce any record to show that a sum of Rs. 5000/was invested by respondent No. 2, as finds mention in the partnership-deed. In my view, from the statement of tenant himself, it has rightly been found by the Authorities below that tenant has failed to prove that respondent No. 2 is his employee and the partnership-deed is not a genuine one. In this view of the matter, no interference is called for in the finding of the Authorities below.