Dharam Pratap Sah and Others vs Smt. Kamleshwari Devi and Another

J.C. Shah, J.—Alleging that the first Respondent had sublet to the second Respondent the premises at Varanasi let out to her, the Appellants sued the two Respondents in the Court of the Second Additional Civil Judge, Varanasi for a decree in ejectment and for arrears of rent. The Respondents contended that there was no subletting and that they had entered into an agreement of partnership to carry on the business of a hotel which was originally conducted by the first Respondent. The Trial Court rejected the contention of the Respondents and passed a decree in ejectment against the Respondents and for arrears of rent. The decree was affirmed in appeal by the Additional District Judge, Varanasi. In second appeal, the High Court at Allahabad modified the decree passed by the Additional District Judge and set aside the order for ejectment. The Appellants have appealed to this Court with special leave.

The only question which falls to be determined in this appeal is about the true effect of the agreement which' was entered into between the first Respondent and the second Respondent on June 15, 1958 for carrying on the business of a hotel in the premises. The Trial Court was of the view that it was intended by that document to grant a sub-lease of the premises occupied by the first Respondent to the second Respondent. With that view the Additional District Judge agreed. The High Court was of the view that the document even though it contained some unusual covenants was still a document of partnership and the decree passed on the footing that the first Respondent had sublet the premises contrary to the provisions of Section 3(1)(e) of the UP (Temporary) Control of Rent and Eviction Act, 1947 could not be sustained.

The Additional District Judge has referred to three covenants of the agreement between the Respondents which in his view justified the conclusion that it was intended by the first Respondent to sublet the premises occupied by the first Respondent as tenant of the Appellants: (1) that the first Respondent was only to receive Rs. 125 as her share of profits irrespective of losses or gains and that she was not responsible for losses; (2) that the second Respondent was to carry on the hotel business on the premises in suit exclusively and without any interference from her in its management; and (3) that the first Respondent was to receive Rs. 210 from the second Respondent for rent of the premises which the first Respondent was to pay to the landlord.

The High Court has considered these covenants and his come to the conclusion that they do not justify the inference that any subletting was intended. An arrangement between the partners under which one of the partners is to share the profits and to get a fixed amount and is not to be liable for any loss does not negative the existence of a contract of partnership if the other covenants warrant that a partnership agreement is intended. The covenant that the business which was originally carried on by the first Respondent was thereafter to be carried on exclusively by the second Respondent is also not a ground for holding that any subletting was intended; and the covenants that the amount of rent payable to the Appellants for the occupation of the premises was to be received by the first Respondent from the second Respondent and paid over to the Appellant does not necessarily indicate that any subletting was intended.

u/s 3 of the UP (Temporary) Control of Rent and Eviction Act, 1947 it is open to the Civil Court to grant a decree in ejectment against a tenant who has on or after the first day of October 1946 sublet the whole or any portion of the accommodation without the permission of the landlord. But in order to obtain a decree in ejectment on the ground mentioned in Section 3(1)(e) of the UP (Temporary) Control of Rent and Eviction Act, 1947, the landlord must establish by clear evidence that there has been a subletting of the premises let to the tenant. The High Court has reached the conclusion that no subletting was intended by the arrangement entered into between the Respondents and we do not think that we would be justified in this appeal with special leave in coming to a contrary conclusion.

The appeal fails and is dismissed with costs.