Ram Nath vs Firm Badri Dass Radhelal and Others

Kapur, J.—This is a landlord''s revision to get eviction of the tenant. Firm Badri Dass-Radhe-lal was a joint Hindu Family firm and some time after 1943 was converted into a contractual partnership consisting of'' Radhelal and his Sons. The premises in dispute were taken by Radhe Lal but the rent was paid by and in the name of Badri Dass Radhe Lal and the trial Court has held that this firm Badri Dass-Radhe Lal, must be taken to be the tenants of the landlord, a finding with which I agree. Some time later Mangal Sen is allged to have become a partner with Firm Badri Dass-Radhe Lal and a partnership in the name of Radhe Lal and Sons was then started. This firm is alleged to have dissolved in 1943 and since then Mangal Sen has been carrying on business in the premises in dispute under the name of Lahori Mal-Mir Singh. It may be taken to be proved that up to the year 1943 rent was paid by Firm Badri Dass Radhe Lal and after the alleged dissolution of partnership upto, 4-4-1945, the rent was continued to be paid in the name of Firm Badri Dass-Radhe Lal though Mangal Sen claims that he was actually paying the money, a fact which is denied by the landlord Ram Nath.

On 1-9-1946, the landlord gave notice u/s 9, Delhi and Ajmer-Merwara Rent Control Act to the tenants for eviction on three grounds, namely (1) that they had sublet the premises without the consent of the and lord, (2) that tho premises'' were being used for a purpose other than that they were let and (3) that they the tenants were not ready and -willing to pay the rent. The suit was decreed by Mr. Kirpa Ram, subordinate Judge 1st class, but the decreo was reversed on appeal by Mr. Tek Chand Vijh, senior subordinate Judge. It is against this decree that a revision has been brought to this Court.

By way of preliminary objection Mr. Puri submitted that the revision is not properly stamped. This is a revision not under the CPC or the Punjab Courts. Act but under the Rules made by this Court under the Rule making power conferred by Section 14(2) of the Act and therefore, Article 13 of Schedule 1 Court Fees Act as applicable to this High Court does not apply. In my opinion, the memo, of revision has been correctly stamped with a stamp of Rs. 4/- and 1, therefore, overrule this objection.

The first point to be determined is whether there has been a contravention of Section 9(l)(b)(ii) which provides for eviction. It runs as follows:

9(1)(b) that the tenant without the consent of the landlord, has, whether before or after the commencement of this Act,.... (ii) assigned, sublet, or otherwise parted with the possession of the whole of the premises or

The allegation of the Plaintiff is that there has been a subletting by Radhe Lal or Firm Badri Dass : Radhe Lal to Mangal Sen who is working under the name of Lahori Mal Singh Defendents. 2 and 3 plead that they - Radhe Lal and Mangal Sen-were carrying on business under the name and style of Badri Dass-Radhe Lal and the business was of manufacture of thread balls which was being carried on in the premises in dispute and on dissolution the assets of the firm having come to Mangal Sen''s share he is entitled to carry on business in these premises and this does not amount to subletting or assignment or parting with possession. The evidence shows that the original letting was to Firm Badri Dass-Radhe Lal of which the sole partner was Radhe Lal. The landlord has always been receiving rent from Badri Das-Radhe Lal and has been giving receipts in that name. Badri Dass-Radhe Lal was a joint Hindu family firm. No account books have been produced showing that Mangal Sen was at any time a partner with Firm Badri Dass-Radhe Lal or even in Firm Radhe Lal and Sons. The Defendent, relies on Ex.D. 36 which is a certified copy of the Income Tax assessment order and therein it is mentioned that there was a dissolution but this order relates to Firm. Radhe Lal and Sons. It may be that Radhe Lal and Sons were a contractual firm consisting of Firm Badri Dass-Radhe Lal and Mangal Sen but there is no proof that Firm Radhe Lal and Sons was carrying on its business in the premises in dispute nor have any accounts been produced to show that Radhe Lal and Sons did have Mangal Sen as their partner.

Counsel for the Petitioner went so far as to say that, even if Firm Badri Dass-Radhe Lal had convertcd itself into a contractual firm, Radhe Lal and Sons, and took another partner that would be covered by Section 9(1)(b)(ii), but in the present case it is not necessary to decide this point. He then'' submitted that if a partnership was dissolved and the partners assigned to one partner the rights to carry on business in the premises taken on rent without the consent of the landlord the landlord would have the right to ask for eviction of the tenant and ho has relied on a judgment of Willes, J., in ''Varley'' v. ''Coppard'' 1872 LR 7 CP. 505. There ''A'' and ''B'' who were two partners were as- signees of a lease containing of partnership. ''A'' assigned all his interest in the premises to ''B''. It was hold that that was a breach of the covenant. At ''P. 507'' Willes, J., observed:

It is unnecessary to consider whether the merely taking a partner would be a breach of the covenant. But I think an assignment by one partner of his divided moiety to the other clearly is a breach of the covenant.

This case would have been applicable if the lease had been taken by Radhe Lal and Sons and then the assignment had been by the other partners in favour of Mangal Sen but in the present case these are not the facts and besides this strict rule of English Law has not been followed in India. In ''K. Devarajulu Naidu'' v. Thayaramma AIR 1950 Mad. 25, Rajamannar, C.J., refused to introduce this strict rule into India and Devadoss, J., in ''Korugalava'' v. ''Jakri Beary'', (52 M.L.J. 8) also held that transfer by a co-lessee in favour of another lessee of a right in the lease would not be a breach of covenant against assignment without the consent of the landlord. In my opinion the rigour of English Law as regards the relationship of landlord and tenant should not be introduced into India and this submission of the Plaintiff''s counsel must therefore be overruled.

But on the second aspect of the case the Plaintiff is in my opinion on firmer grounds. The lease was in favour of Badri Dass-Radhe Lal. There is no doubt that right up to the year 1945 the landlord has refused to accept anybody as a tenant excepting that firm and the rent has always been paid either by that firm or in the name of that firm. There is no proof that the landlord knew of the parting of possession or assignment or subletting to Mangal Sen and accepted rent from him as such. On the other hand the landlord has always been giving receipts in the name of Firm Badri Das-Radhe Lal. Firm Badri Das-Radhe Lal was distinct entity a joint Hindu family firm and they had taken the premises on rent. As I have held before Firm Radhe Lal and Sons have not been proved to have been working in these premises and as to whether Mangal Sen. was a partner with them or not seems to be very doubtful. In any case, Mangal Sen was never a partner of Firm Badri Dass-Radhe Lal which were the firm of tenants. I must therefore hold that the present is a case which is covered by Section 9(1)(b)(ii), Delhi and Ajmer-Merwara Rent Control Act. The learned Senior Subordinate J. seems to have taken an erroneous view of law and in coming to conclusions of fact he seems to have misdirected himself altogether.

The second question is one of user. According to the Plaintiff Firm Badri Dass-Radhe Lal were manufacturers of buttons and the present Firm Lahori Mal-Mir Singh are carrying on the business of manufacture of thread balls. Some evidence has been led that the firm, Firm Radhe Lal and Sons, also was carrying on the business of thread balls, but I am not convinced that that business was being carried on in these premises. The conversion of the user from the manufacturing of buttons to the business of thread balls is in my opinion a misuser which is covered by Section 9(1)(b)(i). This is covered by the rule laid down by ''Cement Pipe Factory v. Daulat Ram'' Civil. Revn. No. 416 of 1950, where a premises let for construction of cement pipes began to be used for the purposes of a printing press and it was held that that was a perversion of user. In the present case, as I have said before the premises were let to a person carrying on the business of manufacture of buttons but Mangal Sen is carrying on the business of quite a different character.

The third ground taken is the non-payment of rent. The rent has not been paid by Firm Badri Dass-Radhe Lal up to 4-10-1946 for about eighteen months. This particular firm did not choose to pay the arrears of rent or deposit the money as provided for in Section 9(1), Rent Restrictions Act. The landlord was not bound to accept this rent from Mangal Sen. As a matter of fact, if he had it might have created many complications. I am therefore of the opinion that this case is covered by Section 9(1)(a) also.

I hold therefore: (a) that the premises were let to Badri Dass-Radhe Lal, (2) that the taking into partnership by Badri Dass-Radhe Lal another partner in that firm might or might not have been covered by Section 9(1)(b)(ii), (3) that Firm Radhe Lal and Sons is not proved to have been carrying on business in ihese premises; at any rate nothing is shown that the landlord knew about it, (4) that as no accounts have been proved it is difficult to hold that Mangal Sen was a partner in either Firm Badri Dass-Radhe Lal or Firm Radhe Lal and Sons, (5) that the act of Firm Badri Dass-Radhe Lal in walking out of business and leaving the premises to Mangal Son is covered by Section 9(1)(b) (ii), (6) that there has been perversion of user which is covered by Section 9(1)(b)(i) and (7) that rent has not been paid in spite of notice and the non-payment is covered by 9(1)(a). On these grounds the Plaintiff is entitled to succeed and I would therefore allow this petition and make the rule absolute. The Petitioner will have his costs in this Court and the Courts below.