DARSHANA DEVI Vs. DES RAJ SINGH THAKUR

JUDGEMENT

(1.) THE ejectment of the tenant was sought on the grounds; (i) for non-payment of rent with effect from 16. 7. 1982; (ii) for sub-letting to one Harish Chander; and (iii) for impairing the value and utility of the building. On contest by the tenant, the Rent Controller ordered ejectment of the tenant on the ground of sub-letting and also on the ground that the tenant has committed such acts as are likely to materially impair the value and utility of the premises. In appeal by the tenant, the Appellate Authority has affirmed the order of the Rent Controller. Hence, the present revision.

(2.) IT has been contended by the learned counsel for the petitioner that the premises were taken on rent by Smt. Darshana Devi on 13. 10. 1968 and since then Harish Chander, the alleged sub-tenant is managing the business in the premises on her behalf and, therefore, the authorities below are not justified in finding that the premises have been sub-let by Darshana Devi to Harish Chander. He contended that partnership entered into between, Darshana Devi and Harish Chander on 1. 4. 1982 is real and genuine. In regard to the ground that the tenant has impaired the value and utility of the premises, counsel contended that making an opening in the front wall is neither material structural alteration nor it would come within the mischief of Section 3 (2) (iii) of the East Punjab Urban Rent Restriction Act (hereinafter referred to as the Act ). In answer to these submission, Mr. J. K. Sibal, Senior Advocate, counsel for the respondent submitted that Harish Chander is in exclusive possession of the premises and the premises have been sub-let to him by Darshana Devi. In regard to the second ground that damage has been caused to the building by making an opening in the front wall, he submitted that there being no infirmity in the finding of the authorities below, no interference is called for by this Court.

(3.) THERE is no dispute about the legal proposition enunciated in the judgments cited by the counsel for the petitioners. It is true that Clause 10 of the Partnership Deed provides that in the event of dissolution of partnership, the premises would go to tenant Darshana Devi but for applying this principle, it has to be established on record that the partnership set up by the tenant is a genuine one. If the partnership is not genuine and is merely a camouflage to conceal the real transaction of sub-letting, then it would be a clear case of sub-letting. In the present case, for proving the partnership, only the Partnership Deed has been produced. Tenant has not produced any other evidence either in the shape of account books or the record of Income-tax and Sales-tax to show that there is a genuine partnership between her and Harish Chander. The other circumstances brought on the record have also established that it is a clear case of sub-letting and partnership set up by the tenant is not genuine but a sham transaction. Tenancy in this case was created by the landlord in favour of Darshana Devi Prop. M/s Arvind Industries in October, 1978. Partnership between Darshana Devi and Harish Chander is alleged to have taken place on 1. 4. 1982. It is the case of tenant herself that Harish Chander is in possession of the premises much prior to the coming into existence of partnership. Tenant, in her statement as R. W.-2, has stated that prior to 1. 4. 1982 Harish Chander had been working in the firm as a Manager. She stated that no letter of appointment was given to him. She, however, has not produced any record to prove that Harish Chander has been working in her firm as a Manager. No evidence has been brought on record by the tenant to show the contribution of partners to the capital of partnership business. It has not been shown when and what amount was taken by the partners towards profits. Detail of the bank account maintained by the partnership has also not been furnished. No witness from the bank has been examined to prove that partnership had operated any account in any bank, though Clause 7 of the Partners Deed provides that bank account of the partnership shall be operated upon by both the partners either jointly or severally or any body else especially authorised by the partners in this behalf. It has further not been shown as to how accounts have been maintained. Darshana Devi, in her statement, concede that she is working as a teacher in Government Primary School since 1980 meaning thereby that she has completely parted with possession as under the Punjab Government Employees (Conduct) Rules, a teacher work in a Government School cannot run any business either in sole proprietorship or in partnership. No record has been produced from the office of District Education Officer that at the time of joining service, Darshana Devi had been doing any business. In these circumstances, I am of the view that the authorities below have rightly come to the conclusion that the partnership set up by the tenant in defence to the case of sub-letting is only a make-believe agreement and has never been acted upon.