Radhey Sham vs Gian Wati

Ashok Bhan, J.—Land-lady-respondent (hereinafter referred to as the landlady) sought the ejectment of Radhey Sham petitioner (herein after referred to as the tenant on two counts i.e. (i) subletting of the premises to Daya Nand respondent No, 2(hereinafter referred to as the sub tenant) without the written consent of the landlady; and (ii) non payment of rent.

In the written statement filed, case of the tenant was that he was in actual physical possession of the premises; that he had entered into a partnership with Daya Nand sub tenant; that Daya Nand was a partner in his business which deals in fertilizer and prayed that the eviction petition be dismissed being frivolous. Arrears of rent were tendered within 15 days. The ground regarding arrears of rent was thus rendered infructuous.

Landlady filed replication to the written statement, refuted the contentions raised by the tenant and reaffirmed her own pleas.

From the pleadings of the parties, the following issues were framed:-

(i) Whether the respondents are liable to be ejected from the rented premises on the grounds mentioned in the petition ? OPA

(ii) Relief.

Rent Controller after going through the evidence and hearing the arguments of counsel appearing for the parties accepted the plea of the landlady regarding subletting and ordered the ejectment of the tenant from the demised premises. Tenant being aggrieved filed an appeal before the Appellate Authority. In appeal the order passed by the Rent Controller was affirmed and order of ejectment upheld. Being aggrieved, tenant has come in revision to this Court. 6. I have heard counsel for the parties at length add perused the record.

Admittedly there is a partnership deed Ex. R1. Radhey Sham tenant has stepped in the witness box as R.W. 1 position of law is clear on the point that a tenant can induct others as partners and start his business but the other person does not become a tenant. The basic question to be decided on the facts of the present case is; whether the partnership deed Ex. R1 is a genuine partnership deed by which the tenant took Daya Nand as his partner or that the same created a sub tenancy and a sham deed to avoid eviction from the premises. I am satisfied that the findings recorded by the Courts below regarding sub-tenancy are correct and are, therefore, affirmed. Share of Radhey Sham tenant is 25% and admittedly he has not made any contribution towards capital for the running of the business; that he does not manage the business; he has no control in the financial management of the business; Radhey Sham is working somewhere else as per his admission made in the witness box. Account books of the business were not produced. Radhey Sham has further stated that he had not taken the profits from the business which may have accrued. According to him in the last four years only Rs.2500/- accrued to his share as profit which he did not take; that he did not sign the accounts of the firm. In his. statement, he further stated that he does not work in the shop; that all the cash memos issued in the hand writing of Daya Nand; that he never maintained the account books and that he did not prepare any year wise balance sheet showing losses and profits about his share in the business. Clause 14 of the partnership deed leads as under:-

"The Tenancy of business premises which is in the name of the Radhay Shyam will, from today onwards vest with the partnership firm known as Messrs Hanuman Khad Bhandar. In the event of dissolution of partnership assets and liabilities of the firm will be divided between Capital invested in the firm. In the event of retirement or death of any partner the accounts of the firm will be closed on such date and a balance sheet will be drawn and the amount due to the retiring deceased partner after adjusting profit/loss upto that date will be paid to the retiring partner or to the legal heir or nominee of the deceased partner as the case may be."

As is observed in the earlier part of this judgment, a tenant can take any person as partner to run the business but he cannot create any tenancy by surrendering his tenancy rights. A perusal of clause 14 of the partnership deed would indicate that tenancy rights in the business have been surrendered to the partnership known as Hanuman Khad Bhandar. Since the tenant did not Save any share in the management of the running partnership firm in which the tenant has been shown as one of the partners is not a genuine one. The premises is in occupation of the firm in which tenant-petition has no interest and this according to me would amount to subletting.

For the reasons recorded above, I find no merit in this revision petition, which is dismissed with no order as to costs. The tenant-petitioner and Daya Nand are granted two months time to hand over the vacant possession of the demised premises to the landlady provided they pay all arrears of rent with future rent for five months to the landlady within 15 days.